Francesco Costamagna

Regulating Public Services and International Investment Law

International investment law is increasingly becoming an important reference field of international economic law. The chapter examines if, and the extent to which, investment arbitral tribunals sought to meet the need to respect host State’s capacity to regulate in the public interest. Preliminarily, the chapter deals with the notion of regulation in the public service sector, by exploring its categorization as a right and as a duty of States. Subsequently, it assesses whether the regulation of public services is a matter falling within international investment law’s scope of application and whether all regulatory measures used to govern public services’ provision may fall under international arbitral tribunals’ scrutiny. It then analyses the controversial distinction between lawful regulation and regulatory expropriation under international investment law. To this purpose, the chapter takes into consideration the different approaches adopted by arbitral tribunals, in order to evaluate their capacity to meaningfully contribute to find a balance between investors’ and States’ competing interests with regard to public services. Lastly, the analysis turns to the increasingly important role played by the fair and equitable treatment standard in arbitral practice, also with regard to public services’ cases. In particular, this part of the chapter looks at the difficulties in finding an equilibrium between stability and regulatory change in the public services’ sector, by examining the impact of the legitimate expectations doctrine upon host States’ regulatory autonomy.

Saving Europe 'Under Strict Conditionality': A Threat for EU Social Dimension?

This paper looks at the compatibility of EU anti-crisis measures with some key elements of the EU legal system. In particular, it focuses on the financial assistance programmes devised to rescue some EU Member States that, due to their unsustainably high public debts, came under severe pressure from the financial markets. In all these cases, recipient States have been invariably required to adopt draconian austerity measures in order to have access to the financial help. This paper argues that some of the conditions attached to the assistance packages raise doubts as to their compatibility with a number of basic social principles and objectives that represent the foundations of the EU social dimension. This is the case with regard to the social objectives enshrined in the Treaties, the allocation of competences between the EU and Member States in the social field and, lastly, some of the social rights contained in the Charter of Fundamental Rights.

The European Semester in Action: Strengthening Economic Policy Coordination While Weakening the Social Dimension?

The paper examines the impact of the European Semester on the European social dimension. The new coordination mechanism aims to strengthen economic policy coordination in order to fill the original EMU constitutional gap deriving from the choice to create a common currency without having an economic union in place. Its structure, which combines soft law and hard law procedures, allows EU institutions to exercise policy formulation, supervision and guidance on issues touching upon virtually the entire spectrum of Member States’ economic and social policies. The analysis shows that in its early cycles the Semester tended to prioritize economic objectives, such as budgetary discipline, over competing social ones. Indeed, social security systems have been mainly taken into consideration because of their impact on public finances. However, there are signs of a progressive reorientation of the strategy adopted at supranational level. Indeed, the recommendations adopted in the 2013 cycle of the European Semester pay greater attention to social objectives, while the Commission has recently taken some initiatives that should contribute to find a better balance between the ‘economic’ and the ‘social’ within the EMU.

A unifying similarity measure for automated identification of national implementations of european union directives

This paper presents a unifying text similarity measure (USM) for automated identification of national implementations of European Union (EU) directives. The proposed model retrieves the transposed provisions of national law at a fine-grained level for each article of the directive. USM incorporates methods for matching common words, common sequences of words and approximate string matching. It was used for identifying transpositions on a multilingual corpus of four directives and their corresponding national implementing measures (NIMs) in three different languages : English, French and Italian. We further utilized a corpus of four additional directives and their corresponding NIMs in English language for a thorough test of the USM approach. We evaluated the model by comparing our results with a gold standard consisting of official correlation tables (where available) or correspondences manually identified by domain experts. Our results indicate that USM was able to identify transpositions with average F-score values of 0.808, 0.736 and 0.708 for French, Italian and English Directive-NIM pairs respectively in the multilingual corpus. A comparison with state-of-the-art methods for text similarity illustrates that USM achieves a higher F-score and recall across both the corpora.

The Linkages Between Access to Water and Water Scarcity with International Investment Law and the WTO Regime

This paper aims to examine the relationship between two branches of international economic law and water-related issues. In particular, it analyses the impact of international investment law and international trade law on, respectively, State’s capacity in ensuring universal access to water services and fighting against water scarcity. The main objective of the paper is to define State’s rights in relation to water supply and how these rights can be protected and enforced within the international investment and/or WTO regime. First, the analysis focuses on certain features of the investment system that may affect the balance between State’s right to regulate for strengthening access to water and foreign investments’ protection. The dispute settlement mechanism, which allows private investors to challenge regulatory measures directly before an international arbitral tribunal, and the uncertain definition of basic substantive provisions are the elements considered in this regard. The second part of the paper examines whether and how the WTO regime may deal with water transfers. In particular, the goal is to assess the relationship between water exporting and water importing countries, which are not always balanced should a strict interpretation of WTO norms and exceptions be adopted. The paper concludes that the application of international economic rules to water-related issues requires the development of a flexible approach to strike a fair balance between the economic interests and the fundamental social needs at stake in this field.

Unsupervised and supervised text similarity systems for automated identification of national implementing measures of European directives

The automated identification of national implementations (NIMs) of European directives by text similarity techniques has shown promising preliminary results. Previous works have proposed and utilized unsupervised lexical and semantic similarity techniques based on vector space models, latent semantic analysis and topic models. However, these techniques were evaluated on a small multilingual corpus of directives and NIMs. In this paper, we utilize word and paragraph embedding models learned by shallow neural networks from a multilingual legal corpus of European directives and national legislation (from Ireland, Luxembourg and Italy) to develop unsupervised semantic similarity systems to identify transpositions. We evaluate these models and compare their results with the previous unsupervised methods on a multilingual test corpus of 43 Directives and their corresponding NIMs. We also develop supervised machine learning models to identify transpositions and compare their performance with different feature sets.

Protecting Foreign Investments in Public Services: Regulatory Stability at Any Cost?

Abstract The article addresses the tension between regulatory stability and regulatory change within the international regime for the protection of foreign investments. The work focuses on public services, a sector where striking a balance between stability and change has been highly problematic. In this context, modifications of the regulatory framework may substantially affect the profitability of investments that normally presuppose large network infrastructures. On the other hand, adapting the regulatory framework to ever-changing social needs is crucial to pursue fundamental social purposes. The article deals with this tension through the prism of the fair and equitable treatment standard and the protection of investors’ legitimate expectations. The analysis shows that there has been an evolution in the arbitral practice, but that there is still considerable uncertainty on key aspects. The paper proposes the adoption of an interpretive approach that can help ease the tension between stability and change.

Multiregionalism in the Context of the EU Sovereign Debt Crisis: Current Legal Challenges and the Way Forward

The purpose of this article is to investigate the challenges posed by multiregionalism in the context of monetary and financial cooperation. The definition of “multiregionalism” was provided by Bjorn Hettne to describe a multilayered order of systematic relations among regional organizations and between the latter and international organizations.