A Guide to Interim Measures in Investor-State Arbitration

Interim measures can be indicated by most international decision-making bodies which monitor compliance with human rights norms to the parties involved in the proceedings before them, in order to prevent the commission of any irreversible actions which would either preclude the proper examination of a complaint or render the final judgment meaningless. The availability of interim measures is an essential feature of any effective judicial system, particularly where fundamental rights are at stake. They play a particularly important role in proceedings before the European Court of Human Rights (‘the Court’). The volume of requests for an indication of interim measures received by the Court each year is substantial and increasing. This presents the Court with a number of legal and practical problems. This chapter examines the circumstances in which an indication of interim measures may be made, as well as the consequences of non-compliance with such an indication, although it is acknowledged that the incidence of non-compliance is low. With its recent case law, the Court has brought the existence of interim measures to the attention of a wider audience, which is desirable as only such an awareness will render the protection of Convention rights practical and effective rather than theoretical and illusory, a stated goal of the Court. However, such a wider awareness will in turn increase the volume of requests again, making it likely that the Court will in years to come have to make significant changes to the scope of requests for interim measures, as well as to its practices and procedures for considering such requests.

Interim measures can be indicated by most international decision-making bodies which monitor compliance with human rights norms to the parties involved in the proceedings before them, in order to prevent the commission of any irreversible actions which would either preclude the proper examination of a complaint or render the final judgment meaningless. The availability of interim measures is an essential feature of any effective judicial system, particularly where fundamental rights are at stake. They play a particularly important role in proceedings before the European Court of Human Rights (‘the Court’). The volume of requests for an indication of interim measures received by the Court each year is substantial and increasing. This presents the Court with a number of legal and practical problems. This chapter examines the circumstances in which an indication of interim measures may be made, as well as the consequences of non-compliance with such an indication, although it is acknowledged that the incidence of non-compliance is low. With its recent case law, the Court has brought the existence of interim measures to the attention of a wider audience, which is desirable as only such an awareness will render the protection of Convention rights practical and effective rather than theoretical and illusory, a stated goal of the Court. However, such a wider awareness will in turn increase the volume of requests again, making it likely that the Court will in years to come have to make significant changes to the scope of requests for interim measures, as well as to its practices and procedures for considering such requests.

In this chapter, we will present various hypotheses regarding interim measures, such as the Court’s prima facie competence, the urgency of the case, irreparable harm, and whether they are binding or not. The final conclusions are based on the Court’s jurisprudence and the views of the doctrine.KeywordsInterim MeasuresBindingIrreparable HarmCompetence prima facieUrgency

One of the fields where the clash between the ambition toward secularism and the need to enhance cultural traditions mostly emerges is the debate on the presence of religions in the pluralist public space. From a Constitutional point of view, Courts and judges are often asked to solve conflicts involving religious claims, trying to maintain simultaneously respect for religious identities, religious freedom and the principle of equality of every belief before the state. The difficulty of this task arises clearly within the extensive case law on religious symbols and ceremonial prayers in Europe, but also in the USA. In order to address this challenge, constitutional judges often try to extract from a certain definition of “secular state” a particular legal standard and use it as the legal tool useful to reconcile, once and for all, all the cases concerning religions in public spaces. In a nutshell, neutrality as a legal standard implies two main goals: strict and strong separation between state and church; and freedom from religion (instead of freedom of religions). This idea of neutrality has received many criticisms: as some political thinkers pointed out, neutrality is incoherent because any determinate politics must necessarily rely upon and promote some contestable scheme of values. Another legal standard is often used by judges: the so-called “historical argument”. It comes from a different conception of the secular state, and it is raised up in opposition to a strong idea of assertive secularism and strict neutrality. According to this argument, judges must take into account the cultural and religious traditions of their systems as far as they are strongly rooted in the institutional (or even constitutional) history of their Nations. The historical argument has the merit of reconciling the secular state with its cultural heritage. Nonetheless, the use of the historical argument alone is both weak and formalistic: above all, practical jurists cannot solve hard conflicts just resorting to “what has always been done”. After having shown why the two legal standards mostly used by courts are not convincing enough, our chapter points to a third way to realize the ambition toward a secular state, on the one hand, and to enhance religious traditions according to their true meanings, on the other. This third solution is based on three main premises: (a) the idea of finding a unique abstract legal standard, capable of resolving every case, is a utopia; (b) the place of religion in the public space does not involve a binary relation (state vs. church), but rather it is a complex triangular relational principle (that involves state, religion, and civil society); (c) the goal of the courts is not to enforce a certain idea of the secular state or laicita, but to facilitate pluralism and religious peace. In the final part of the chapter we try to verify, within the most recent Italian case law on religious rituals in State schools (i.e. pastoral visitations and bishops’ benedictions), whether and when this third approach—which considers laicita a tool, not a goal—has succeeded.

This chapter demonstrates the balance that has been struck between the free movement rights, those of economically inactive persons included, and the Member States' interest in limiting access to their solidarity systems. The author comments on the recent developments in the ECJ's case law towards a broad interpretation of the notion of 'worker', as a result of which some categories of inactive persons are considered to be workers as well, and on the effect this has with regard to access to social benefits for these 'workers' and the members of their family. The chapter focuses on the consequences of this financial responsibility in relation to the application of Directive 2004/38 on the right of residence. The author comments on the effect the ECJ's recent case law, based on the notion of European citizenship, has on economically inactive EU citizens' entitlement to social minimum benefits when they move within the EU. Keywords: ECJ; EU citizens; free movement; Member States

In this section authors from various European countries report the recent case law in their jurisdiction in the field of private patrimonial law, that is decisions on the law of property, juridical acts, the law of obligations, contract law and prescription. The ERPL started this section in 2003. The section aims to give readers an overview of what is happening in the most recent European case law. We have asked the national reporters to report the juridical essence of the decisions given by the highest courts in their country. These national reports are integrated in one general report that arranges the decisions by subject, so that readers can easily find out whether decisions on their special interest were given in any European jurisdiction or whether decisions on one subject have been taken in various European jurisdictions. In principle, this section does not relate the facts of the decision, nor the personal opinion of the reporter. One can find discussions on the most important decisions of European courts in ERPL?s case note section. The recent case law section gives overviews of decisions published in periods of four months. The period of January-April is published in the fourth issue, the period from May to August is published in the sixth issue, the period from September to December is published in the second issue of the next year. In this issue, we publish decisions of high courts taken from January to April 2005. As yet, some decisions can only be found on the internet. Therefore, at the end of this section we have listed web sites where one can find European high court decisions.

The primary aim of interim measures is to preserve the rights and interests of the parties in civil litigation. The Law on Contested Procedure enumerates two types of measures designed to safeguard the rights of each party, and to preserve the court’s ability to render a meaningful judgement in the litigation. The measures provided in the law are categorized into two groups: security measures and interim measures. Although both measures share some similarities, judicial practice has revealed a number of nuanced differences that make each distinctly unique. As a result, courts tend to frequently apply interim measures as a legal mechanism for preventing any irreparable harm or loss to a party before the final judgement on the merits of the case is rendered. An additional element that brought some opposing views among the members of the judiciary, is the right to use legal remedies. This paper will analyze disparities in application of the measures, discuss the legal framework for such application and examine recent judicial practice regarding the use of legal remedies.

While investor–State arbitration is to a large extent detached from the EU legal order, EU law has recently started to be invoked in investor-State arbitration proceedings. In the context of intra-EU bilateral investment treaties, the Commission has expressed the view that investor-State arbitration gives rise to a number of ‘arbitration risks’ for the EU legal order. Not only can it solicit investors to engage in forum-shopping, but it can also result in questions of EU law not being litigated in Member State or Union courts. This chapter explores the extent to which the compatibility of investor–State arbitration with the EU legal order is in issue. It examines the main features of investor-State arbitration as concerns its interplay with the EU legal order, as well as the Court of Justice’s case law on issues of compatibility between systems of international dispute settlement and the EU legal order. The chapter highlights that the way in which investor–State arbitral tribunals handle issues of EU law, as well as the involvement of interested parties, may foster the synergy between investor–State arbitration and the EU legal order.

Now more than ever, it appears that both societal and political factors are supporting and stimulating student mobility in all its shapes and forms, most notably through various initiatives on the European level. The Bologna Process, the European Qualifications Framework and the Lisbon Recognition Convention are all examples of this commitment undertaken by the Member States of the EU as well as other European nations. However, upon taking a closer look at the practical reality, we see that many obstacles remain to exist. As EU law currently stands after the Forster and Morgan and Bucher judgments, mobile students do not have a right to maintenance grants, neither from their host state or their home state. Furthermore, the European Court of Justice has – albeit reluctantly – allowed an exception to the principle of equal treatment on grounds of nationality with regards to access to higher education in the Bressol case. Although the recent, somewhat more restrictive attitude of the European Court can be defended and perhaps even welcomed, it does illustrate the need for a discussion and potential action on the European level by the political institutions. This contribution includes a discussion of the recent ECJ case law on student mobility and some reflections on the desirability, feasibility and potential form and content of such future action.

In Turkish weddings, the gifts usually consist of golden items that are liquid assets and can have a substantial value. Until recently, it was the constant case law of the Turkish Court of Cassation that they were owned by the woman regardless of who gave it to whom. This case law, which could be unexpected for non-Turkish readers, was founded on the social assumption that wedding gifts constituted security for the future of women. Indeed, until 2002, the law did not provide economically dependent spouses who devoted their labour to the household sufficient legal means to obtain financial security in case of divorce. This changed in 2002. This could explain why the constant case law has recently been changed and it is now accepted that wedding gifts are in the ownership of the spouse that they were given to or in the co-ownership of both spouses if the addressee of the gift cannot be determined. This development shows how the legal framework can affect social assumptions and the development of case law. The consideration of other legal changes since 2002 reveals, furthermore, how the case law on other issues related to wedding gifts could – or should – develop.

This case list offers a guide to the European Court of Human Rights (ECtHR) case law pertaining to migration. While the case list does not cite every ECtHR decision related to migration, it offers a comprehensive overview of important instances of case law indicative of the ECtHR’s jurisprudence on migration. These are, for example, Grand Chamber decisions, or cases cited by the Court in its more recent case law. In addition to including key cases cited in the preceding chapters of this book, this list also includes cases identified in thematic case law guides of the ECHR and recent jurisprudence in the area of migration, notified by the ECHR in monthly updates. The cases are organised in thematic blocks, which in turn appear in the order in which they pertain to the different temporal stages of migration, from entering the destination country to the right to remain and the cultural and religious rights of long-term migrants.

Company Valuation: A Comparison of Economic and Legal Perspectives

The objective of this article is to present the most significant recent case law of the Court of Justice of the European Union (CJEU) related to the competition law. Firstly, focus is given to some recent CJEU case law in the antitrust area, i.e. the judgments dealing with the application of Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU). A special attention is paid to the most recent CJEU case law analyzing the distinction between the object and effect of the prevention, restriction or distortion of competition. Secondly, some significant State aid cases are dealt with, i.e. the cases related to the application of Article 107 TFEU. Although the CJEU case law has not recently undergone major changes in the competition law field, the article reflects the main trends towards the current jurisprudence and what challenges may be expected in the future.

Chapter 5 returns to the legal problems underlying this study. The first section looks into the preliminary ruling procedure as the specific institutional constellation to accomplish legal certainty in the European legal order. It shows how this procedure is characterised by the chiastic interplay between national courts and ECJ. Then, it turns to some exemplary episodes in the ECJ’s case law concerning competences. First, the cases on European “federal common law” and implied powers are analysed to show how the structure of implication is a direct result of the specific situation of the court, and the need to protect the unity and autonomy of the European legal order. In the same vein, in the following sections, European administrative law, the case of Maria Pupino, and the Court’s case law on human rights are analysed. The analysis demonstrates that one can only make sense of this case law by taking into account a theory of chiastic constitution in passivity. The final section looks into recent and classic cases concerning the constitutionalisation of the integration process. Stressing the importance of the principle of loyal cooperation, and the mandate of the ECJ, the author argues that the Court may obliquely reckon with the passivity in activity by dealing prudently with the constitutional traditions of the Member States in its own constitutionalising activity.

Opinion 2/15 (Court of Justice, opinion of 16 May 2017) represents just the latest example of the persistent crisis that affects the CCP. The EU’s CCP has developed historically through periods of renewal and crisis. After the developments in case law, and in particular after the cases of Daiichii Sankyo (Court of Justice, judgment of 18 July 2013, case C-414/11, Daiichi Sankyo and Sanofi-Aventis Deutschland [GC]) and Conditional Access Services (Court of Justice, judgment of 22 October 2013, case C-137/12, Commission v. Council [GC]), opinion 2/15 seems to entail a significant step back. The decision that the EU-Singapore FTA has a mixed character argues that the CCP deployed by the Commission after Lisbon goes beyond the competences established in the TFEU and, therefore, that this agreement incorporates matters that do not fall within the EU’s exclusive competence. Further, the Court implicitly held that there is no shared external competence that can be exercised by the EU alone on the basis of implied powers. If the interpretation adopted by the Court regarding the “Centre of gravity” test can be praised as positive, even though its manner of changing its case-law can be criticized as insufficiently explained, the decision to leave out portfolio investments from the CCP, together with the interpretation of the investor-State arbitration system through the lens of the autonomy of EU law, shows that it will be difficult for the Commission to handle the new CCP.