The aim of the present chapter is to examine anew the availability of force majeure as a justification for measures taken in systemic financial crises. The focus is on its potential as a defence for EU Member States in investment arbitrations under intra-EU BITs implicating crisis measures. The chapter sheds light on the distinction between ‘material/relative impossibility’ in the context of Article 23 of the ILC Articles on State Responsibility, as opposed to ‘absolute impossibility’ under Article 61 of the Vienna Convention on the Law of Treaties, and comparatively examines the contours of force majeure under both general international law and EU law. The analysis finally identifies the many points of convergence between the two regimes and the possibilities for force majeure invocations, à la européenne, by EU Member States in investment arbitrations under intra-EU BITs regarding measures taken in the midst of severe financial turmoil. Keywords: force majeure, financial crisis, international investment law, EU law, intra-EU BITs, circumstances precluding wrongfulness
This chapter deals with climate change and trade, from the perspective of the normative interaction between common but differentiated responsibilities (CBDR) and the World Trade Organization (WTO) regime. In this vein, the chapter first examines the content and legal status of CBDR in international law, reaffirming the obvious, i.e. that CBDR does not enjoy independent legal status under international law. Then, the discourse turns to examine whether it is somehow 'inherent' in WTO law, still cautioning against overstating the relevant impact of either the reference to the objective of sustainable development in the Marrakesh Agreement’s Preamble, or that of the WTO rules on special and differential treatment (S & D) for developing countries. Given the fact that CBDR lacks independent legal status in international law, the chapter addresses the question whether CBDR, as reflected or operationalized via provisions of multilateral environmental agreements (MEAs), such as those of the 1992 United Nations Framework Convention on Climate Change (UNFCCC) and the Kyoto Protocol, may still be resorted to in WTO dispute settlement for climate change measures. Distinguishing between using MEA provisions reflecting/operationalizing CBDR in a WTO dispute settlement, either as applicable law, or as an interpretative tool, the chapter concludes that CBDR's pertinence in WTO disputes is rather overstated, insofar as the interaction between CBDR and WTO law should be neither framed as a tale of two 'interconnected worlds', nor a tale of two 'crossing swords'.