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Fernando Dias Simões

In recent years Portugal has been enduring a bitter financial and political crisis. The judiciary, time and again depicted as being under pressure, is facing new predicaments. This chapter discusses three points of tension within the Portuguese judiciary: the creation of a new judicial map, popular perceptions about the existence of a dual justice system, and claims of ‘judicialization of politics’ or ‘judicial activism’. Like other areas of Portuguese society, the evolution of the judicial system in the coming years will be deeply dependent on the improvement of the economic outlook.

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Fernando Dias Simões

Impact assessment studies are a well-established instrument to inform trade and investment negotiators and steer their decision-making processes. The European Union’s trade Sustainability Impact Assessment programme offers an opportunity for stakeholders in both the EU and its partner countries to share their views with policymakers. This chapter examines the level of stakeholder involvement in the Sustainable Impact Assessment study currently underway in support of the negotiations for a Bilateral Investment Treaty between the EU and China. It argues that several factors seemingly reduce the opportunity for some stakeholders to share their views with negotiators, raising doubts about their potential contribution to the policymaking process. Public consultation mechanisms have been criticised by some sectors of European Civil Society. The uniqueness of China’s civil society presents further challenges since the degree of stakeholder involvement and independence from government cannot be compared to the European context.

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Fernando Dias Simões

This chapter analyses Article 26 of the Energy Charter Treaty, which regulates investor-state dispute resolution. Investors can trigger different dispute resolution mechanisms: submission of the dispute to the courts or administrative tribunals of the host state; execution of any previously agreed dispute settlement procedure; or referral of the dispute to international arbitration or conciliation. Investors can choose from a variety of arbitral fora and corresponding arbitration rules. As a rule, each contracting party gives its unconditional consent to the submission of a dispute to international arbitration. This broad scope of consent may, however, be limited in two situations: contracting states may declare that they do not consent to arbitration if the investor has already submitted the dispute to courts or administrative tribunals or in accordance with any previously agreed dispute settlement mechanism; and countries may opt out of international arbitration for disputes arising under the umbrella clause.