George A. Bermann
George A. Bermann
This chapter provides a tour d’horizon of the development of the EU’s investment policy and is intended as an introduction for the subsequent chapters. The first part tracks the scope of the EU’s competence regarding foreign direct investments and the investor-State dispute settlement (ISDS) system as it has been developed in particular by the Court of Justice of the EU (CJEU). The second part analyses the tension of investment law and EU law regarding the intra-EU BITs and the Achmea judgment of the CJEU. The question is then discussed whether, and if so, to what extent the internal market provisions of the EU Treaties already provide a sufficient level of investment protection. The third main part focuses on the EU’s recent external investment policy as illustrated by the Comprehensive Economic and Trade Agreement (CETA) between the EU and Canada as well as the EU’s ISDS reform efforts within UNCITRAL Working Group III.
George A. Bermann
If the parties to an arbitration agreement have chosen a law applicable to the merits of their dispute, this is the law that the tribunal will in principle apply. However, like many national courts, tribunals may, on rare occasion, be attracted to the idea of applying the mandatory law of a third country, due to its having a compelling interest in the matter. There are several paths a tribunal may follow, rather than flatly denying the application of such mandatory law. It may give the choice of law clause a restrictive interpretation. It may treat the mandatory law as a fact rather than a rule of decision. It may incorporate the mandatory law into the notion of transnational public policy. It must in any event contemplate that its award may be annulled or denied enforcement for excess of authority, but possibly also annulled at the seat if it denies effect to the seat’s own mandatory law.
George A. Bermann and Giuditta Cordero-Moss
This is a landmark decision that rules in favour of the arbitrability – in the European sense of the possibility of submitting to arbitration – of antitrust claims in international cases. Soler Chrysler-Plymouth, Inc., a Puerto Rico car dealer’s franchise, entered into distribution and sales agreements with Mitsubishi Motors, a Japanese automobile manufacturer. The sales agreement contained an arbitration clause in which all disputes arising out of certain articles of the agreement would be resolved by the Japanese Commercial Arbitration Association. Upon a dispute related to the decrease of automobile sales, Mitsubishi brought an action in federal court under the Federal Arbitration Act and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, seeking an order to compel arbitration of the disputes in accordance with the arbitration clause. Soler filed counterclaims, invoking antitrust violations under the Sherman Act. It argued that the statutory claims were unwaivable under the Act and that this meant that the courts could not be sidelined by arbitration. However, the district court ordered arbitration of all claims, holding that the international nature of the dispute required enforcement of the arbitration clause. The US Court of Appeals for the First Circuit reversed. Hence, the crucial issue before the United States Supreme Court was the possibility of arbitrating claims arising under the Sherman Act. Should federal courts enforce an agreement to arbitrate when the dispute involves the determination of unwaivable antitrust claims?