L’investissement et l’arbitrage au sens du Traité sur la Charte de l’énergie vu par la Cour de justice : la dimension stratégique de l’arrêt Komstroy à l’aune de l’Avis 1/20

in Revue trimestrielle de droit européen (2022), 2022(4), 693-704

The article comments on the ECJ's Komstroy judgment from the EU and international law perspectives.

Sanctions in the Spotlight

in New Law Journal (2022), (7975), 18-19

Examines sanctions imposed on Russia in response to its invasion of Ukraine and how they impact ‘designated persons’ subjected to targeted sanctions. Argues that although some commentators have questioned ... [more ▼]

Examines sanctions imposed on Russia in response to its invasion of Ukraine and how they impact ‘designated persons’ subjected to targeted sanctions. Argues that although some commentators have questioned the ethics of legal advisers who represent those persons seeking to challenge their designation, access to legal representation remains a cornerstone of the rule of law. [less ▲]

Judicial Education and Judicial Independence: Paper given at the 2021 Commonwealth Law Conference

E-print/Working paper (2021)

The link between judicial education and an efficient judiciary is, one hopes, obvious. But in order to ensure judicial independence, contemporary wisdom has it, judicial education should also be in the ... [more ▼]

The link between judicial education and an efficient judiciary is, one hopes, obvious. But in order to ensure judicial independence, contemporary wisdom has it, judicial education should also be in the hands of the judiciary. Absent such control, there is a risk that judges may be indoctrinated by interested actors and their independence compromised. Some critics, however, have been sceptical about judicial control of judicial education. Judicial control of education often justified on basis of expertise as well as need to protect independence. But judges are not pedagogues (and their view of what judging does, or should, entail are often untheorized). Nor are they particularly representative of society. In addition, a danger unmitigated by judicial control of judicial education is regulatory capture, defined as ‘the result or process by which regulation, in law or application, is consistently or repeatedly directed away from the public interest and toward the interests of the regulated industry, by the intent and action of the industry itself'. Even if other voices are integrated into discussions, the danger exists that they might seek to subvert the process to privilege their interests over the general interest. Such concerns have recently been raised in England and Wales with regard to the Equal Treatment Bench Book. The paper examines the relationship between judicial education and judicial independence through the lens of this controversy. It concludes that when judicial education trespass on the independence of the individual judge is not an easy question to answer (not least because education is always about socialization) but, crucially, it is not one answered by putting judicial education in the hands of the judiciary. [less ▲]

International Arbitration and National Criminal Proceedings: Presentation Given to the Luxembourg Arbitration Association, 30 June 2020

E-print/Working paper (2020)

This paper examines how arbitral proceedings and domestic criminal processes can interact; how parties to arbitrations have attempted to use domestic criminal proceedings to advance their interests; and ... [more ▼]

This paper examines how arbitral proceedings and domestic criminal processes can interact; how parties to arbitrations have attempted to use domestic criminal proceedings to advance their interests; and how arbitral tribunals can and should respond to such attempts. It concludes that arbitral tribunals must take account of concurrent national criminal proceedings but cannot defer entirely to them. This is not only because they undertake a different role but also because national authorities cannot always entirely be trusted. In turn, this means that tribunals can find themselves between Scylla and Charybdis, so that arbitrators must be skillful navigators to get safely to their destination: an enforceable award. [less ▲]

EU External Action in International Economic Law: Recent Trends and Developments

Book published by T.M.C Asser Press (2020)

The Human Rights Defence in International Investment Arbitration: Exploring the Limtis of Systemic Integration

in International and Comparative Law Quarterly (2019), 68(3), 741-759

In a variety of investment arbitration cases, respondent States have argued that the measure complained of by the investor was mandated by the State’s human rights obligations. This defence raises ... [more ▼]

In a variety of investment arbitration cases, respondent States have argued that the measure complained of by the investor was mandated by the State’s human rights obligations. This defence raises intricate questions concerning the relationship between international investment law and human rights law. Tribunals have generally been reluctant to engage with the argument and to interpret the relationship between investment law and human rights in a straightforward manner. This article discusses two other possibilities: harmonious interpretation and prioritisation. Harmonious interpretation seeks to read provisions from investment treaties and human rights treaties together, whereas prioritisation gives normative superiority to one provision over another. We conclude that harmonious interpretation is facilitated by the discretionary character of common treaty standards in both human rights and investment law, but that the final result is not likely to be very different from prioritisation, because even harmonious interpretation requires that one provision is read in the light of, and thereby subjugated to, another provision. [less ▲]

The ECOWAS Court of Justice as an Investment Tribunal

in Journal of World Investment and Trade (2018), 19(1), 95-117

This article considers the extent to which foreign investors in Member States of the Economic Community of West African States (ECOWAS) might be able to use the ECOWAS Court of Justice to protect their ... [more ▼]

This article considers the extent to which foreign investors in Member States of the Economic Community of West African States (ECOWAS) might be able to use the ECOWAS Court of Justice to protect their investments against actions of their host States. It does so taking into account the ECOWAS Supplementary Act on Investments and the jurisprudence of the Court of Justice on, in particular, the extent of its substantive jurisdiction. Although it is not suggested that the Court of Justice would be better forum than an international arbitral tribunal, it is argued that it has considerable advantages over national courts. [less ▲]

Economic Sanctions and International Law: An Introduction

in Eden, Paul; Happold, Matthew (Eds.) Economic Sanctions and International Law (2016)

In recent years sanctions have become an increasingly popular tool of foreign policy, not only at the multilateral level (at the UN), but also regionally (the EU in particular) and unilaterally. The ... [more ▼]

In recent years sanctions have become an increasingly popular tool of foreign policy, not only at the multilateral level (at the UN), but also regionally (the EU in particular) and unilaterally. The nature of the measures imposed has also changed: from comprehensive sanctions regimes (discredited since Iraq in the 1990s) to 'targeted' or 'smart' sanctions, directed at specific individuals or entities (through asset freezes and travel bans) or prohibiting particular activities (arms embargoes and export bans). Bringing together scholars, government and private practitioners, 'Economic Sanctions and International Law' provides an overview of recent developments and an analysis of the problems that they have engendered. Chapters examine the contemporary practice of the various actors, and the legality (or otherwise) of their activities. Issues considered include the human rights of persons targeted, and the mechanisms established to challenge their listing; as well as, in cases of sanctions imposed by regional organisations and individual states, the rights of third States and their nationals. The introductory essay, by co-editor Matthew Happold, provides a legal taxonomy of sanctions measures, providing a general context for the more in-depth contributions of the individual authors [less ▲]

Economic Sanctions and International Law

Book published by Hart Publishing (2016)

In recent years sanctions have become an increasingly popular tool of foreign policy, not only at the multilateral level (at the UN), but also regionally (the EU in particular) and unilaterally. The ... [more ▼]

In recent years sanctions have become an increasingly popular tool of foreign policy, not only at the multilateral level (at the UN), but also regionally (the EU in particular) and unilaterally. The nature of the measures imposed has also changed: from comprehensive sanctions regimes (discredited since Iraq in the 1990s) to 'targeted' or 'smart' sanctions, directed at specific individuals or entities (through asset freezes and travel bans) or prohibiting particular activities (arms embargoes and export bans). Bringing together scholars, government and private practitioners, Economic Sanctions and International Law provides an overview of recent developments and an analysis of the problems that they have engendered. Chapters examine the contemporary practice of the various actors, and the legality (or otherwise) of their activities. Issues considered include the human rights of persons targeted, and the mechanisms established to challenge their listing; as well as, in cases of sanctions imposed by regional organisations and individual states, the rights of third States and their nationals. [less ▲]

Protection européenne et internationale des droits de l'homme

Book published by Larcier - 3 ème (2014)

La troisième édition du présent ouvrage fait le point sur l’importance croissante de la protection internationale et européenne des droits de l’homme et son influence sur nos droits et nos lois nationales ... [more ▼]

La troisième édition du présent ouvrage fait le point sur l’importance croissante de la protection internationale et européenne des droits de l’homme et son influence sur nos droits et nos lois nationales, dans les différents domaines de la vie sociale. Après avoir rappelé la genèse et les fondements du droit international des droits de l’homme, l’auteur développe de manière didactique, approfondie et critique le système de protection de l’ONU, le système du Conseil de l’Europe et les autres systèmes régionaux de protection. L’ouvrage intéressera les avocats et les magistrats, spécialisés en matière de droits de l’homme, droit européen et droit international, mais aussi le monde universitaire à travers ses professeurs et ses étudiants. [less ▲]