Edited by Christian J. Tams, Stephan W. Schill and Rainer Hofmann
Chapter 12: Financial crisis as force majeure under international law and EU law: Defending emergency measures, à l’européenne, in investment arbitration under intra-EU BITs
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
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