Ursula Kriebaum

FET and Expropriation in the (Invisible) EU Model BIT

Although it was undisputed in the institutions of the European Union (eu) that future eu investment protection treaties should provide for clauses on expropriation and fair and equitable treatment their exact content is under discussion. Before this background, this article first addresses the expropriation standard keeping in mind that the eu Commission announced that it intends to reaffirm the State’s right to regulate in future eu investment treaties. Subsequently, it provides an overview of the traditional approaches to fair and equitable treatment (fet) and focusses on the antagonism between a requirement of legal stability and the need to allow for regulatory space. Furthermore, it analyses the new definition of the fair and equitable treatment standard in the Comprehensive Economic and Trade Agreement (ceta) which for the first time aims at defining the contents of fet.

The Relevance of Economic and Political Conditions for Protection under Investment Treaties

Abstract Some treaty standards for the protection of investments, like national treatment and MFN, are variable. They depend upon standards granted to the host States nationals or to investors from third States. By contrast, standards like fair and equitable treatment and full protection and security provide fixed reference points. The question arises whether these reference points are the same for all states regardless of their level of development and their economic, social and political circumstances at the time of the investment. Some arbitral tribunals have been prepared to consider the social, economic and political situation prevailing in the host country when assessing the threshold for the violation of investment protection standards or the level of compensation required by BITs. This article addresses the question whether and how tribunals have made use of the flexibility in the legal standards in investment law to take account of the different economic and political conditions across nations. It concludes by considering what the implications of this flexibility might be and how far it should go.

The Right to Water Before Investment Tribunals

Access to safe drinking water and potential water degradation have played a role in many water-related investment arbitrations. This paper looks at two different types of investment cases that have emerged with an impact on water: First, it analyses cases that have arisen from privatizations in the water sector. They mainly concern problems connected with physical access to water and affordability. Second, it discusses cases concerning investments in other industries that have the potential to degrade water quality or to have a negative impact on the maritime environment. Using these typical constellations it focuses on the methodology tribunals adopt to deal with potential tensions between the right to water and investor rights.

Council of Europe Anti-Torture Committee and Prisons in Austria

This chapter analyses the topics on which the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) has focused during its six visits to Austria. The CPT’s recommendations that relate to prison institutions as well as the Austrian government’s reactions towards the recommendations will be discussed. Furthermore, the chapter describes the creation and operation of the Human Rights Advisory Board which was competent among other subjects to deal with institutions under the jurisdiction of the Ministry of the Interior where human beings were deprived of their liberty. In the context of the Human Rights Advisory Board, six independent Commissions had been created which were modelled after the CPT and which monitored the implementation of HR standards in all of these institutions. The current system which continued this model in an adapted form under the responsibility of the Austrian Ombudsman office is also being described.

The PCIJ and the Protection of Foreign Investments

Mavrommatis Palestine Concessions (Greece v UK) (Jurisdiction) [1924] PCIJ Ser A No 2; Case Concerning the Factory at Chorzów (Germany v Poland) [1927] PCIJ Ser A No 9; Case concerning Certain German Interests in Polish Upper Silesia (Germany v Poland) [1928] PCIJ Ser A No 17; Certain German Interests in Polish Upper Silesia (Germany v Poland) (Jurisdiction) [1926] PCIJ Ser A No 7; Electricity Company of Sofia and Bulgaria (Belgium v Bulgaria) (Jurisdiction) [1939] PCIJ Ser A/B No 77; SS Wimbledon (UK v Germany) (Jurisdiction) [1923] PCIJ Ser A No 1; Payment of Various Serbian Loans Issued in France (France v Yugoslavia) (Jurisdiction) [1929] PCIJ Ser A No 20; Phosphates in Morocco (Italy v France) (Jurisdiction) [1938] PCIJ Ser A/B No 74; Jurisdiction of the Courts of Danzig (Advisory Opinion) [1928] PCIJ Ser B No 15; Status of Eastern Carelia (Advisory Opinion) [1923] PCIJ Ser B No 5; Oscar Chinn (Jurisdiction) [1934] PCIJ Ser A/B No 63; Polish Postal Service in Danzig (Advisory Opinion) [1925] PCIJ Ser B No 11; Legal Status of Eastern Greenland (Denmark v Norway) (Jurisdiction) [1933] PCIJ Ser A/B No 53. THE PCIJ AND THE PROTECTION OF FOREIGN INVESTMENTS

Nationality and the Protection of Property Under the European Convention on Human Rights

Article 1 of the European Convention on Human Rights (ECHR) provides that the Contracting Parties have to secure the rights and freedoms protected by the substantive norms of the Convention and its Protocols for everyone within their jurisdiction. Therefore, the States parties to the Convention have to guarantee the right to peaceful enjoyment of one’s possession as enshrined in Article 1 of the Additional Protocol (AP-1) to the European Convention to everyone within their jurisdiction irrespective of the nationality of the owner of the property. The Commission recognised this repeatedly: