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Domestic Law As a Matter of Fact in the International Investment Agreements Signed by the European Union: Some Practical Reflections

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Domestic Law As a Matter of Fact in the International Investment Agreements Signed by the European Union: Some Practical Reflections LAwTTIP Working Papers 2020/2 Domestic law as a matter of fact in the international investment agreements signed by the European Union: Some practical reflections Enrico Tinti LAwTTIP Working Papers 2020/2 All opinions expressed are personal to the author. Enrico Tinti holds a Law Degree from Alma Mater Studiorum – University of Bologna and an LLM in International Financial Law from King’s College London. Email: [email protected]. LAwTTIP Working Papers 2020/2 Domestic law as a matter of fact in the international investment agreements signed by the European Union: Some practical reflections Enrico Tinti LAwTTIP Working Papers 2020/2 LAwTTIP Working Papers 2020/2 Editorial Board Prof. Andrea Biondi (King’s College London) Prof. Isabelle Bosse-Platière (Université de Rennes 1) Prof. Federico Casolari (University of Bologna) Prof. Giacomo Di Federico (University of Bologna) Sir Francis Jacobs (King’s College London) Prof. Marc Maresceau (Ghent University) Prof. Nanette Neuwahl (University of Montreal) Prof. Cécile Rapoport (Université de Rennes 1) Prof. Lucia Serena Rossi (University of Bologna) Prof. Takis Tridimas (King’s College London) Editorial Policy This text may be downloaded for personal research purposes only. Any additional reproduction, whether in hard copy or electronically, requires the consent of the author(s), editor(s). If cited or quoted, reference should be made to the full name of the author(s), editor(s), the title, the working paper series, the year and the publisher. The author(s), editor(s) should inform the Editorial Board if the paper is to be published elsewhere, and should also assume responsibility for any subsequent obligation(s). ISSN 2533-0942 (ONLINE) © Author, 2020 Printed in Italy International Research Centre on European Law University of Bologna via Andreatta 4 I – 40126 Bologna Italy http://www.lawttip.eu Contents 1.Introduction 9 2.The provisions of IIAs signed by the EU on the applicable law of investment tribunals 9 3.The application of domestic law by international investment tribunals and the relationship with domestic courts 12 4.Domestic law and the principle iura novit curia in international investment arbitration 17 5.Weighing conflicting and uncertain domestic jurisprudence in the practice of investment tribunals 21 5.1 Uncertain or divided domestic jurisprudence 21 5.2 Unreliable domestic jurisprudence 22 5.3 The weight of domestic case law under EU IIAs 24 6.Domestic law as a matter of fact: procedural consequences 25 6.1 The burned of proof 26 6.2 The standard of proof 27 6.3 Tribunals’ discretion in the gathering, admission and weighing of evidence 28 6.4 Domestic law as a matter of fact: final remarks 28 7. Conclusions 29 Cases 31 6 LAwTTIP Working Papers 2020/2 Abbreviations BITs Bilateral investment treaties CETA Comprehensive Economic and Trade Agreement CJEU Court of Justice of the European Union ECHR European Convention on Human Rights EU European Union FET Fair and equitable treatment IIAs International investment agreements ICJ International Court of Justice ICSID International Centre for Settlement of Investment Disputes IPA Investment Protection Agreement PCIJ Permanent Court of International Justice TFEU Treaty on the Functioning of the European Union UNCITRAL United Nations Commission on International Trade Law WTO World Trade Organization 7 LAwTTIP Working Papers 2020/2 1. Introduction Pursuant to its post-Lisbon Common Commercial Policy, the European Union (EU) has been signing agreements for the protection of foreign investments with third countries, including the establishment of mechanisms for the resolution of disputes between investors and states. Such international investment agreements (IIAs) are designed to gradually replace bilateral investment treaties (BITs) previously signed by those countries with some EU Member States. Constitutional concerns have arisen at EU level on the compatibility of Investor-State dispute resolution (ISDR) with the autonomy of EU legal order. If the envisaged investment tribunals were to, in parallel, interpret and apply EU law outside the EU judicial system and regardless of the jurisprudence of the Court of Justice of the European Union (CJEU), the agreements could hardly be found compatible with the EU constitutional order. Therefore, new EU IIAs provide that domestic law, including EU law, shall be considered by investment tribunals as a matter of fact and that tribunals are bound to follow the prevailing interpretation of domestic law issued by domestic courts and authorities. In its recent Opinion, the CJEU deemed the mechanism sufficient to safeguard the autonomy of EU law. This article examines the practice of investment arbitrators when interpreting domestic law as part of the applicable law, their relationship with domestic courts and the weight given to domestic jurisprudence in ascertaining the content of domestic legislation. Particular attention is given to the approaches assumed by tribunals towards domestic case law when this appears to be conflicting, uncertain or unreliable. EU IIAs bind tribunals to follow the prevailing interpretation of domestic law issued by domestic courts. In this respect, this article argues that the provision is most likely to be applied when it is least necessary – that is, in the presence of established domestic jurisprudence. However, it provides little help when tribunals’ discretion is expected the most: namely, when domestic case law is found to be uncertain or contradictory. Next, the article considers arbitration rules of evidence and the applicable principles on the establishment of facts. Arbitrators enjoy broad discretionary powers to gather factual information and assess its probative value. Admittedly, such discretion is comparable to that exercised when interpreting applicable domestic law. Therefore, this article argues that, in light of arbitration rules and tribunals’ practice, the difference between interpreting domestic law as law and examining it as a fact may be more theoretical than practical. 2. The provisions of IIAs signed by the EU on the applicable law of investment tribunals Pursuant to its post-Lisbon common commercial policy, the EU has increasingly been negotiating international investment agreements (IIAs) with third countries, designed to replace bilateral investment treaties (BITs) previously signed by those countries with some EU Member States. The Comprehensive Economic and Trade Agreement (CETA) with 9 Canada,1 the EU-Singapore Investment Protection Agreement (IPA)2 and the EU-Vietnam IPA,3 recently signed together by the EU and its Member States, share numerous innovative features. At the time of writing, ratification of the agreements is still pending. However, as these are the first IIAs signed by the EU pursuant to its new common commercial policy, they show consolidated evidence of the negotiating pattern pursued by the Union in the field of foreign investments protection and are likely to represent a model for future EU IIAs. One notable innovation pertains to the law that investment tribunals constituted pursuant to these agreements will be deemed to apply, their examination of the parties’ domestic law and their relationship with domestic courts – including, from the EU perspective, the CJEU. The applicable law of the tribunals is limited to the provisions of the agreements themselves and other rules or principles of international law applicable between the parties.4 Conversely, the parties’ domestic law is expressly excluded from applicable law. However, in determining the consistency of a measure with an IIA, domestic law can be considered by the relative tribunal as a matter of fact.5 Consistent with the separate nature of the legal systems set up in the agreements and with the distinct order of judicial remedies thereby available, tribunals are not given jurisdiction to determine the legality of a measure under the domestic law of a party.6 A measure could in fact be lawful as a matter of domestic law but infringe upon one of the IIAs, or be domestically illegal without necessarily breaching them. In addition, any meaning given to domestic law by the tribunals is logically deemed to have no binding effect upon the judiciary or the public authorities of the party concerned. Moreover, when taking into consideration a party’s domestic law as a matter of fact, both CETA and the EU-Singapore IPA require tribunals to “follow the prevailing interpretation” given to the provisions at issue by the courts or authorities of that party.7 More firmly, the EU-Vietnam IPA prescribes that its tribunal “shall be bound” by the interpretation given to domestic provisions “by the courts or authorities which are competent to interpret the relevant domestic law”.8 1 Comprehensive Economic and Trade Agreement (CETA) between Canada, of the one part, and the European Union and its Member States, of the other part (adopted 30 October 2016) OJ L 11, 14 January 2017, p. 23–1079 (hereinafter “CETA”). See Council Decision (EU) 2017/37 of 28 October 2016 on the signing, on behalf of the European Union of the Comprehensive Economic and Trade Agreement (CETA) between Canada, of the one part, and the European Union and its Member States, of the other part, OJ L 11, 14 January 2017, p. 1–2. 2 Investment Protection Agreement between the European Union and its Member States, of the one part, and the Republic of Singapore, of the other part (adopted 19 October 2018), ST 7980 2018 INIT (hereinafter “EU- Singapore IPA”). See Council Decision (EU) 2018/1676 of 15
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