EU State Aid Law and the Enforcement of intra-EU investment arbitral awards.

 
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2016 (EN)
EU State Aid Law and the Enforcement of intra-EU investment arbitral awards. (EN)

Makrygianni, Charoula (EN)

School of Economics, Business Administration and Legal Studies, LLM in Transnational and European Commercial Law, Mediation, Arbitration and Energy Law (EL)
Papadopoulos, Thomas Prof. Dr. (EN)
Komnios, Komninos Dr. iur. (EN)
Masouros, Pavlos Prof. Dr. (EN)

This dissertation, written as part of the LLM in “Transnational and European Commercial Law, Arbitration, Mediation and Energy Law” at the International Hellenic University addresses the EU law challenges on investor-state arbitration under intra-EU BITs, concluded by countries of Central and Easter Europe newly acceded to EU, taking as example the legal issues that emerged in Micula arbitration. The arguments posed by the EC and respondent states against the validity and applicability of intra-EU BITs have been proved unsubstantial, while the applicability of EU law on the merits by investment tribunals portrays their failure to strike a balance between the EU law obligations of states and the legitimate expectations of investors under the BITs. The main challenge concerns the compliance of intra-EU investment awards with EU state aid law, arguing that only compliance with an award mandating indirectly illegal state aid, such as the Micula award, violates art.107 TFEU. Compliance with such awards rendered under ICSID Convention places the respondent state in a dilemma, namely to respect EU state aid law and defy the consequences derived from the award or to honor ICSID Convention and unconditionally enforce it. Since the relationship between EU law and ICSID Convention remains unresolved, the superiority of each legal order would be established as a principle and not as a rule in the dispute at hand. With respect to non-ISCID awards involving competition law issues, their enforcement would be denied under the public policy exception V(2)(b) of NYC by the EU MS courts. Concluding that EU competition law forms EU public policy which is included in international public policy that applies in NYC, the court should verify through restrained review if the enforcement of the award entails flagrant violation of competition law, capable of jeopardizing the public policy of the state which enforcement is sought. These conclusions are premised on an attempt to reconcile EU law policy with the policy of law of international arbitration. (EN)

masterThesis

Intra-EU BITs (EN)
Enforcement (EN)
State aid (EN)
Public policy (EN)
Micula award (EN)

Διεθνές Πανεπιστήμιο της Ελλάδος (EL)
International Hellenic University (EN)

2016-03-07


IHU (EN)



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