The European Union (EU) has made the upholding of human rights an integral part of its external trade relations and requires that all trade, cooperation, partnership and association agreements with third countries, including unilateral trade instruments, contain with varying modalities and intensity a commitment to the respect for human rights. The paper discusses selected aspects of the EU’s promotion and integration of human rights in its external trade relations and assesses the impact of the changes introduced by the 2009 Treaty of Lisbon (ToL) on EU practice.

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The Promotion and Integration of Human Rights in EU External Trade Relations

The article provides an assessment of the European Commission’s recent proposal for reform in investor-state dispute settlement (ISDS) under the Trans-Atlantic Trade and Investment Partnership (TTIP). It does so on the basis of a public law theory of international adjudication that presents international courts and tribunals as multifunctional actors who exercise public authority and therefore require democratic legitimacy. The article introduces this understanding against the background of other, traditional basic conceptions of international courts and tribunals. It then focuses on the prospects of appellate review and politico-legislative input under the European Commission’s proposal for TTIP, as well as on the provisions pertaining to the arbitrators, the judicial process, and the judicial decisions. While the net merits of ISDS in the Trans-Atlantic context are uncertain, the article submits that the European Commission’s proposal provides, in principle, a welcome response to some of the more egregious shortcomings of investor-state arbitration.

Investor-State Dispute Settlement in TTIP from the Perspective of a Public Law Theory of International Adjudication

The article focuses on the interplay between European Union (EU) law on privacy and data protection and international trade law, in particular the General Agreement on Trade in Services (GATS) and the WTO dispute settlement system. The argument distinguishes between the effects of international trade law in the EU legal order on the one hand, and, on the other hand, how EU data protection law would fare in a hypothetical challenge under the GATS. The contribution will apply international trade law and the general exception in GATS Article XIV to typical requirements stemming from EU data protection law, especially on transfers of personal data to third countries. The article enumerates the specific legal risks for defending EU law on privacy and data protection and explains the practical implications of its hypothetical challenge under the GATS. These insights could be useful for the EU’s negotiators of the future bi- or multilateral free trade agreements, notably the Transatlantic Trade and Investment Partnership and the Trade in Services Agreement.

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The Best of Both Worlds? Free Trade in Services and EU Law on Privacy and Data Protection

In this case, the CJEU answers the question whether Article 1(3) of the Framework Decision on the European arrest warrant must be interpreted as meaning that when there are strong indications that detention conditions in the issuing Member State infringe Article 4 of the Charter, the executing judicial authority must refuse surrender of the person against whom a European arrest warrant is issued. The CJEU rules that if, after a two-stage assessment, the executing judicial authority finds that there is a real risk of an Article 4 violation for the requested person once surrendered, the execution of the arrest warrant must initially be deferred and, where such a risk cannot be discounted, the executing judicial authority must decide whether or not to terminate the surrender procedure. This conclusion shakes the system of mutual trust upon which the principle of mutual recognition is built.

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The Joined Cases Aranyosi and Căldăraru : A New Limit to the Mutual Trust Presumption in the Area of Freedom, Security, and Justice?

This paper succinctly summarises Australia’s evolving policy debate over Investor-State Dispute Settlement (ISDS). Part I sketches some regional and global context. Part II briefly revisits the Productivity Commission’s report of 2010, and longer-standing concerns from the political left, which coalesced in the 2011 Gillard Government Trade Policy Statement eschewing ISDS in all future investment treaties or Free Trade Agreements (FTAs). Part III focuses on the new Abbott Government’s policy since 2014, which reverts to a case-by-case assessment – resulting in ISDS being omitted from Australia’s FTA with Japan, but being included in its bilateral FTAs with Korea (KAFTA) and China. In Parliament, the main opposition Labor Party continues to voice concerns about ISDS, but voted with the Abbott Government on legislation implementing KAFTA, which was then ratified. Labor Party members of a Senate Committee also sided with ruling Coalition members in recommending against enactment of a broader “anti-ISDS Bill”, proposed by a Greens Party Senator to legislatively preclude ISDS provisions in future treaties, albeit primarily on the basis that this would excessively constrain the executive branch’s responsibility to negotiate international agreements. Part IV suggests that Australia’s major political parties now have an opportunity to develop a shared and sustainable policy stance on this vexed issue, underpinned by the recent parliamentary inquiries and media attention as well as ongoing empirical and theoretical research.

Investment Treaty Arbitration ‘Down Under’: Policy and Politics in Australia

This case-note provides a critical overview of Joined Cases C-404/15 and C-659/15 PPU, Aranyosi and Caldararu. The CJEU tries to reconcile the principles of mutual trust and recognition with the protection of the fundamental rights of the requested person. Instead of introducing a new ground of refusal for a European Arrest Warrant based on the breach of fundamental rights, the CJEU opted for a ground of postponement. Furthermore, it brings its two-tier ‘systemic deficiencies’ test closer to the standards used by the ECtHR and encourages dialogue between the issuing and executing judicial authorities. Nevertheless, the scope of application of the new ground of postponement is not entirely clear and it is not yet sure what happens after the executing judicial authority postpones its decision due to evidence of a real risk that the requested person will be subjected to inhuman and degrading treatment in the issuing Member State.

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Joined Cases Aranyosi and Căldăraru: Converging Human Rights Standards, Mutual Trust and a New Ground for Postponing a European Arrest Warrant

In the context of a rising number of preferential trade agreements (PTAs) that include investment protection provisions traditionally found in bilateral investment treaties (BITs), this chapter has a double purpose. First, based on an empirical analysis of 158 post-North American Free Trade Agreement (NAFTA) PTAs, we conclude that three categories of countries/regional economic integration organisations (REIOs) exist: those that regularly include investment chapters into their PTAs (Japan, the United States, Canada, the Association of Southeast Asian Nations (ASEAN), Australia and the Caribbean Community (CARICOM)), those that are finding their voice in international investment law and increasingly include such chapters (India, China, the European Union and Chile) and those that have an adverse position towards it (Brazil and the Southern Common Market (MERCOSUR)) or defer the inclusion of such provisions to further negotiations (African Plurilaterals, Morocco and South Africa). Second, we look at the drivers behind including/excluding investment protection provisions in/from PTAs. Some drivers will be readily apparent from the data collected for the purpose of answering the first question, while other drivers will need a more detailed discussion. These drivers are: (a) the weaker party accepts/uses templates of more powerful states; (b) states/REIOs wish to pursue more comprehensive and resource-friendly negotiations; (c) states/REIOs want to achieve a more coherent application of international economic law.

The Growing Tendency of Including Investment Chapters in PTAs

In the much-awaited Achmea judgment (of 6 March 2018, case C-284/16 [GC]), the Court of Justice held that investor-state tribunals (ISTs), “such as” the one under the Netherlands-Slovakia intra-EU bilateral investment treaty (BIT) are incompatible with EU law. In this arguably short judgment, the Court of Justice consolidated its attitude towards the relationship between other international courts and the EU legal order; it set new limits to Art. 344 TFEU; and, it expanded its list of tribunals that do not qualify as Member State courts or tribunals under Art. 267 TFEU. Nonetheless, whilst the Commission can rejoice that it can now clearly oblige Member States to terminate their intra-EU BITs, Achmea sends some worrying signals. The future of ISTs under Member State BITs with third countries is uncertain; so is the viability of the Investment Court System under the agreements with Canada and Vietnam, the future of the Multilateral Investment Court, and the overall coherence of the EU’s international investment law and policy.

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It Is not Just About Investor-State Arbitration: A Look at Case C-284/16, Achmea BV

What Constitutes ‘Failure to Notify’ National Measures

The rules on invoking EU norms before the Court of Justice and Member State courts are at the core of EU constitutional law. International agreements binding on the EU form an integral part of EU law and have primacy over inconsistent secondary EU legislation. Moreover, they also have primacy over inconsistent Member State law. This article aims to investigate, whether such primacy is capable of having effects independent of direct effect or it needs to be triggered by some form of 'direct effect' of the international agreement.

Szilárd Gáspár-Szilágyi

Papers

Joined Cases Aranyosi and Căldăraru: Converging Human Rights Standards, Mutual Trust and a New Ground for Postponing a European Arrest Warrant

The Growing Tendency of Including Investment Chapters in PTAs

It Is not Just About Investor-State Arbitration: A Look at Case C-284/16, Achmea BV

What Constitutes ‘Failure to Notify’ National Measures

The Primacy and Direct Effect of EU International Agreements