The political and legal world has moved on considerably since I last addressed the predecessor to this Association, EFILA, in January 2020. The UK was still (just) a member of the EU. My former Court, the Court of Justice of the European Union (‘CJEU’), had not yet given judgment in Komstroy (CJEU, Case C-741/19, Republic of Moldova v. Komstroy LLC, ECLI:EU: C:2021:655.) holding (by way of an obiter dictum) that EU law precluded the arbitrability under the Energy Charter Treaty of an intra-EU investor/state dispute. Russia’s ‘special military operation’ in Ukraine, to use President Putin’s term, had not started. There were no Trump tariffs, and most people would have had to consult an atlas to find out where the Straits of Hormuz are located. In the light of all these challenges, there could not therefore be a better time for EFILA to go global and re-invent itself as IFILA. When I was a judge at the CJEU I was often asked about my view about a particular CJEU judgment or future judicial developments. I would always be cautious about the direction of future case law as I did not want to prejudice my position if, and when, the point came to me while sitting on the Bench. I would seek to decide the case on the basis of the arguments put before me on that occasion. Part of my time now is spent sitting as an arbitrator. Arbitrators also need to be independent and impartial. So I need to give you the same health warning as I did when speaking as a judge. I will start by looking at some of the issues that arisen in recent years in investment arbitration disputes, and then, secondly, the current position on the review of such awards. Thirdly I will consider whether the proposed UNCITRAL Permanent Tribunal (‘PT’) and the Permanent Appeal Tribunal (‘PAT’) is likely to be a step forward or backwards, and finally what the proposed system of an appeal on the law would, or should, entail.
European Investment Law and Arbitration Review