Agrégateur de flux

Written by Stefan Huber, University of Tübingen

Note: This blogpost is part of a series on „Corporate social responsibility and international law“ that presents the main findings of the contributions published in August Reinisch, Stephan Hobe, Eva-Maria Kieninger & Anne Peters (eds), Unternehmensverantwortung und Internationales Recht, C.F. Müller, 2020.

1. In investor-state arbitration, one has to distinguish between arbitral proceedings which are initiated on the basis of a contract concluded between the investor and the host state, on the one hand, and arbitral proceedings which are initiated on the basis of a bilateral investment treaty, on the other hand. In the latter case, there is no arbitration agreement in the traditional sense. This entails a unilateral right of the investor to initiate arbitral proceedings. Granting the host state the right to bring a counterclaim might compensate this asymmetry up to a certain degree.

2. Whether the host state has the right to bring a counterclaim, depends on the dispute settlement mechanism provided for in the bilateral investment treaty. For future investment treaties, it is recommended to grant the host state such a right. When the investor introduces arbitral proceedings on the basis of such a treaty, the investor usually declares his consent with the entire dispute settlement clause. If, at this moment, the investor expressly excludes the right of the host state to bring a counterclaim which is provided for in the bilateral investment treaty, there is no correspondence between the declaration of the host state and the declaration of the investor to submit the dispute to arbitration. Consequently, if the host state refuses to participate in the arbitral proceedings on such a basis, the arbitral tribunal does not have jurisdiction to decide the case.

3. The subject matter of treaty-based investor-state arbitration generally concerns regulatory measures of the host state. This makes a considerable difference in comparison to commercial arbitration, which focuses on the interests of private actors. This difference entails different procedural principles, primarily as far as questions of confidentiality and transparency are concerned.

4. There are, however, procedural principles of particular importance, which reflect the cornerstones in a system based on the rule of law in its substantive sense and require, as such, observance in all types of proceedings independently of the subject matter. The principle of equality of arms is one of these principles. Tribunals shall ensure that both parties are in an equal position to present their case. If there is a systemic superiority of one group of parties, tribunals have to be particularly vigilant and, if necessary, to intervene proactively in order to compensate factual inequality.

5. The principle of equal treatment of the parties is not only to be respected within one and the same proceeding. Treating two types of party – states on the one hand and investors on the other – differently in general, i.e. not just in a specific proceeding, would likewise amount to a violation of this principle. If certain questions concerning the burden and standard of proof arise in one procedural situation typically in the interest of the host state and in another procedural situation typically in the interest of the investor, the tribunals should deal with those questions in the same manner.

6. Investments which are in conformity with the law as far as their object is concerned, but which are corruption-tainted due to corruption that took place when the investment was made lead to discussions about the content of international public policy. Against this background, there would appear to be a practice for tribunals to deny jurisdiction or admissibility of the arbitral proceedings in cases concerning corruption-tainted investments. Actually, this leads to a denial of justice. International public policy, however, does not require such an approach. A comparison with the treatment of corruption cases in commercial arbitration shows this very clearly. The circumstances of the individual cases are too manifold; a one-fits-all solution construed at the level of jurisdiction or admissibility is not convincing. The arbitral tribunals should rather undertake a comprehensive analysis on the basis of the applicable substantive rules of law in order to take into account the particular circumstances of each individual case. State interests can be properly respected via mandatory rules and international public policy.

Full (German) version: Stefan Huber, Die Stellung von Unternehmen in der Investitionsschiedsgerichtsbarkeit (unter besonderer Berücksichtigung von Korruptionsproblemen) – Unternehmen als gleichberechtigte Verfahrensparteien?, in: August Reinisch, Stephan Hobe, Eva-Maria Kieninger & Anne Peters (eds), Unternehmensverantwortung und Internationales Recht, C.F. Müller, 2020, pp. 303 et seq.

Gisela Rühl (Friedrich-Schiller-University Jena and Humboldt-University of Berlin) has posted Settlement of International Commercial Disputes Post-Brexit, or: United We Stand Taller on SSRN.

The abstract reads:

The European market for the settlement of international commercial disputes is currently dominated by London. According to official statistics, about 80% of the cases brought before the London Commercial Court involve at least one foreign party. And in about 50% of the cases both parties are foreign. Obviously, the London Commercial Court is a popular forum for the settlement of international commercial disputes. And, obviously, it has an international appeal that is – at least in Europe and at least thus far – second to none.The remaining EU Member States, however, are not sleeping. In fact, over the course of the last years the prospect of Brexit has induced some of them to take measures designed to make their civil justice systems more attractive for international commercial parties: Germany, for example, established two first instance, international commercial chambers at the Regional Courts in Frankfurt and Hamburg in 2018 which offer to conduct proceedings in English. France created an English language chambre internationale at the Paris Court of Appeal in March 2018 which complements and adds a second instance to the English language chamber at the Paris Commercial Court that has been operating since November 2010. The Netherlands inaugurated the English language Netherlands Commercial Court and the Netherlands Commercial Court of Appeal in January 2019. And other countries, notably Belgium and Switzerland are contemplating the establishment of one or more specialized courts to deal with international disputes. Quite clearly: the European market for international commercial litigation is on the move. And while some of the above mentioned chambers and courts were in the making before the UK decided to leave the EU in 2016, there can be little doubt that the prospect of Brexit has fuelled the development. The interesting question, however, is whether the recent trend to establish international commercial chambers and courts will actually yield any success? Will companies decide to come to the continent – rather than to London – to settle their disputes after Brexit? As a matter of principle, the odds are not too bad: After all the UK will lose its access to the European Judicial Area once Brexit becomes fully effective, namely when the transition period provided for in the Withdrawal Agreement expires. English court proceedings will then no longer benefit from the many European Regulations that ease the settlement of international disputes and judicial cooperation in cross-border civil matters. At least for companies which seek access to the European Judicial Area, Brexit will, therefore, make it less attractive to settle a dispute in London.The following chapter takes this observation as an occasion to explore the consequences of Brexit for the settlement of international commercial disputes in more detail. It argues that no court in the remaining Member State seems in a position to present itself as a serious alternative to the London Commercial Court. It is, therefore, suggested that the EU should step in and create a European Commercial Court. This Court would provide European companies with an international forum in the European Judicial Area after Brexit and would also attract disputes that would otherwise be settled before other international commercial courts or international arbitration tribunals.

The paper is forthcoming in Jörn Axel Kämmerer, Hans-Bernd Schäfer (eds), Brexit and the Law. An Interdisciplinary Study, Edward Elgar.

Selon la Cour européenne des droits de l’homme, la prescription de l’action publique à l’encontre d’un magistrat entraîne la préservation de son droit à la présomption d’innocence dès lors qu’elle fait obstacle à l’établissement de sa culpabilité. Dans ces circonstances, la suspension du traitement du magistrat porte quant à elle atteinte à son droit de propriété au sens de l’article 1 du Protocole 1 de la Convention européenne. 

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Par cette décision QPC particulièrement attendue, le Conseil constitutionnel déclare pour la seconde fois contraires à la Constitution les dispositions de l’article 706-71 du code de procédure pénale qui permettent de recourir à un moyen de télécommunication audiovisuelle pour les audiences de la chambre de l’instruction relatives au contentieux de la détention provisoire. 

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Amazingly, despite the severe crisis in Venezuela, the Master’s Program in Private International Law and Comparative Private Law at the Universidad Central de Venezuela has managed to publish its second Yearbook, with two theses and several impressive shorter pieces by students as well as two new pieces and two “classics” by professors.  (Report on the first yearbook last year is here.)

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A comprehensive Commentary, edited by Professor Sabine Corneloup and published by Edward Elgar Publishing, was recently released providing an in-depth analysis of the Rome III Regulation implementing enhanced cooperation in the area of the law governing cross-border divorce and legal separation. The Commentary is a welcome addition to Elgar’s already thriving ‘Commentaries in Private International Law’ series.

Written by a team of internationally renowned experts of private international law in family matters, the Commentary analyses, on an article-by-article basis, and contextualises the provisions of the Rome III Regulation, providing clear insight into the rationale behind the text. Substantive values and political choices underlying the adoption of the Regulation are factored in the analysis, offering the reader a thorough and comprehensive illustration of the objectives pursued with each article and with the Regulation, overall. In this context, each provision is pondered in connection with, inter alia, the relevant fundamental rights such as non-discrimination between spouses, self-determination of the individual, the protection of the right to marry, and the right to respect for family life.

Overall, the contributors critically engage with each article, shedding the light on the Regulation’s effectiveness and offering a balanced critique by approaching the topics from a variety of viewpoints. In this context, they do not shy away from underscoring gaps currently existing in the text of the Regulation (such as, for instance, that arising from the absence of an autonomous definition of ‘marriage’) and address the open questions that arise therefrom. Furthermore, the Commentary casts the light on the Regulation’s interactions and coordination with complementary instruments adopted in the area of EU family law, and in particular (but not only) the Brussels II-bis Regulation, promoting a thorough understanding of the EU private international law system on divorce and legal separation. Finally, the Commentary delves into the interface of the Regulation with national substantive provisions and the differences arising therefrom, hence providing the reader with a clear and valuable understanding of the issues surrounding the practical application of the Regulation at the national level.

The Commentary benefits from the contributions of:

Alexandre Boiché, Attorney in Paris (France)

Laura Carpaneto, Professor at the University of Genova (Italy)

Christelle Chalas, Senior Lecturer at the University of Lille (France)

Sabine Corneloup, Professor at the University of Paris II Panthéon-Assas (France)

Stefano Dominelli, Post-Doc Researcher at the University of Genova (Italy)

Pietro Franzina, Professor at the Catholic University of Milan (Italy)

Cristina González Beilfuss, Professor at the University of Barcelona (Spain)

Susanne L. Gössl, Professor at the University of Kiel (Germany)

Petra Hammje, Professor at the University of Nantes (France)

Bettina Heiderhoff, Professor at the University of Münster (Germany)

Fabienne Jault-Seseke, Professor at the University of Versailles Saint-Quentin – Paris Saclay (France)

Natalie Joubert, Professor at the University of Burgundy (France)

Thalia Kruger, Professor at the University of Antwerp (Belgium) and Honorary Research Associate at the University of Cape Town (South Africa)

Caroline S. Rupp, Junior Professor at the University of Würzburg (Germany)

Jinske Verhellen, Professor at the University of Ghent (Belgium)

The in-depth discussion offered by this Commentary will prove to be an essential guide for private international law scholars and practitioners alike to navigate the complex field of family litigation. It will be of particular interest to those working in family law, including judges, lawyers, public notaries and family mediators, as well as graduate students looking for in-depth knowledge of the subject.

Sabine CORNELOUP (ed), The Rome III Regulation. A Commentary on the Law Applicable to Divorce and Legal Separation, pp v-242 (Elgar, 2020). The eBook version of the Commentary is available on Google Play, ebooks.com and other eBook vendors, while in print the book can be ordered from the Edward Elgar Publishing website.

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Irrecevabilité

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Avocat

Détention provisoire

Pourvoi c/ Cour d'appel de Paris, 4 décembre 2019 et Cour d'appel de Rennes, 17 février 2020

Conseil des prudhommes de Paris, Section industrie, Chambre 1