Books by Ivana Damjanovic
Cambridge University Press, 2023
In order to understand the reform of international investment law envisioned by the EU, this book... more In order to understand the reform of international investment law envisioned by the EU, this book provides a comprehensive but concise analysis of the EU reform approaches, its constitutional and legal framework, the concepts of the rule of law and legitimacy, and the reasons for the reform. In particular, the book exposes tensions between the EU aspiration to enhance the rule of law in international investment law, as a means of legitimising this legal discipline, and the challenges of its reform approaches in practice. The analysis combines substantive and procedural aspects of the EU reform of international investment law in the intra-EU context and EU external relations. This book thus critically evaluates the EU vision of the rule of law in international law and its contribution to the development of international law in the field of investment.
Papers by Ivana Damjanovic
The European Union and International Investment Law Reform
In order to understand the reform of international investment law envisioned by the EU, the autho... more In order to understand the reform of international investment law envisioned by the EU, the author provides a comprehensive but concise analysis of the EU reform approaches, its constitutional and legal framework, the concepts of the rule of law and legitimacy, and the reasons for the reform. In particular, the book exposes tensions between the EU aspiration to enhance the rule of law in international investment law, as a means of legitimising this legal discipline, and the challenges of its reform approaches in practice. The analysis combines substantive and procedural aspects of the EU reform of international investment law in the intra-EU context and EU external relations. This book thus critically evaluates the EU vision of the rule of law in international law and its contribution to the development of international law in the field of investment.
Australia's decision to terminate a A$90 billion defence contract with France to forge a new defe... more Australia's decision to terminate a A$90 billion defence contract with France to forge a new defence alliance with the US and UK was a shock for Europe. Ironically, the announcement came just hours before the EU debuted its Indo-Pacific Strategy. Only weeks before being "stabbed in the back," Australia reassured the French of the "importance of the future submarine program" at the high-level 2+2 bilateral mee ng of defence and foreign ministers. However, Australian poli cians claim that France should not be surprised about the termina on of the contract, given major concerns about delays, cost, and suitability of the program for Australia's na onal interests. The crisis might have been compounded by a clash between the Australian low-context culture priori sing strict interpreta on of contractual obliga ons over long-term trust, the la er being more prominent for the French high-context culture. Nevertheless, shouldn't diplomacy serve to avoid such clashes? French resentment cannot merely be explained by the loss of a significant economic deal, although defence exports stand at the core of the French economy. In symbolic terms, France is becoming the de facto leader of the EU in light of German Chancellor Angela Merkel's departure. Moreover, France is taking over the rota ng presidency of the Council of the EU in the first half of 2022. The termina on of the contract can thus be seen as a kick at the heart of Europe. Its severity is demonstrated by the Quai d'Orsay's decision to recall French ambassadors in Washington and Canberra, an unprecedented move in the diploma c rela ons between these tradi onal allies.
Encyclopedia of Sustainable Management, 2022
In its landmark judgment in the case of Achmea (judgment of 6 March 2018, case C-284/16 [GC]), th... more In its landmark judgment in the case of Achmea (judgment of 6 March 2018, case C-284/16 [GC]), the Court of Justice adjudicated that Investor-State Dispute Settlement (ISDS) ad-versely affects the autonomy of EU law. Accordingly, ISDS clauses in international investment agreements that contravene Arts 267 and 344 TFEU and the principles of mutual trust and sincere cooperation enshrined in Arts. 19, para. 1, and 4, para. 3, TEU are inapplicable under EU law. How-ever, the reasoning of the Court of Justice in Achmea did not convince international investment tribunals that they lack jurisdiction in intra-EU investment disputes. This opposition calls for clarifi-cation of the different principles underpinning the EU legal order and international investment law. This Article presents a debate between these two legal orders, which unfolds around three sepa-rate, albeit related issues: the status and applicability of the EU and the Member States’ international agreements within the EU lega...
European journal of risk regulation, Apr 29, 2024
Public and political controversies over Investor-State Dispute Settlement (ISDS) have prompted re... more Public and political controversies over Investor-State Dispute Settlement (ISDS) have prompted reform processes in international investment law, at bilateral, regional and multilateral levels, with different actors shaping the future of international investment governance. In its essence, the options for the ISDS reform reflect the diverging perspectives on the rule of law in international law. Ultimately, they present a choice about who should control power over States' action in issues of public importancethe States who have created the system, or international investment tribunals who have shaped the legal development of the system. This paper considers the application of the rule of law as a normative meta-principle to international investment law and its dispute settlement, and it sheds light on different perspectives of this concept, as they shape the ongoing ISDS reform(s).
European Papers, 2019
In its landmark judgment in the case of Achmea (judgment of 6 March 2018, case C-284/16 [GC]), th... more In its landmark judgment in the case of Achmea (judgment of 6 March 2018, case C-284/16 [GC]), the Court of Justice adjudicated that Investor-State Dispute Settlement (ISDS) adversely affects the autonomy of EU law. Accordingly, ISDS clauses in international investment agreements that contravene Arts 267 and 344 TFEU and the principles of mutual trust and sincere cooperation enshrined in Arts 19, para 1, and 4, para 3 TEU are inapplicable under EU law. However, the reasoning of the Court of Justice in Achmea did not convince international investment tribunals that they lack jurisdiction in intra-EU investment disputes. This opposition calls for clarification of different principles underpinning the EU legal order and international investment law. This Article presents a debate between these two legal orders, which unfolds around three separate albeit related issues: the status and applicability of the EU and the Member States' international agreements within the EU legal order; the manner in which the Achmea judgment must be interpreted and its application in the international investment law context; and the meaning and relevance of the concept of the autonomy of EU law as the key issue in defining the relationship between EU law and international investment law. KEYWORDS: autonomy of the EU legal order-international investment law-Arts 267 and 344 TFEU-mutual trust-compatibility of ISDS with EU law-rule of law.
The Columbia Journal of European Law, 2019
In 2012 a Swedish energy company, Vattenfall, challenged Germany's
decision to phase out nuclear... more In 2012 a Swedish energy company, Vattenfall, challenged Germany's
decision to phase out nuclear power in reaction to the 2011 Fukushima nuclear incident. The challenge was initiated as an investment arbitration under the Energy Charter Treaty (Vattenfall II) before an ICSID Tribunal in Washington. In a separate legal action, the constitutionality of the decision was questioned before the German Federal Constitutional Court, which decided the matter in December 2016. Based on recent developments in the field of international investment law and the judgment of the Court of Justice of the European Union in the case of Slowakische Republik v. Achmea BV, the dispute proves more complex than it seems prima facie. The Achmea judgment confirms that in intra-EU disputes, EU law overrides intra-EU BITs. Even further, such disputes should not be subject to the jurisdiction of international investment tribunals, with considerable ramifications for international investment arbitration under the Energy Charter Treaty. Vattenfall and Achmea serve as case studies to explain controversial issues of applicable law and jurisdiction in intra-EU investment disputes under the Energy Charter Treaty. Arguably, applying German law and EU law rather than international investment law leads to prioritizing public interest over legitimate expectations of private investors, with significant implications in terms of compensation.
Europe and the World: A law review, 2020
In Opinion 1/17 the CJEU ruled that the new Investment Court System (ICS) in CETA is compatible w... more In Opinion 1/17 the CJEU ruled that the new Investment Court System (ICS) in CETA is compatible with the EU constitutional framework. This article examines the CJEU’s analysis of ICS in its Opinion through the prism of EU values and objectives. Given the judicial nature of ICS, the article unfolds around the concept of the rule of law. The scope and the content of this core EU value are considered under both EU law and ECHR. In particular, ICS is analysed in light of the two core rule of law requirements: the equal treatment and the independence of courts, enshrined in Articles 20 and 47 of the Charter of Fundamental Rights (CFR). Importantly, in Opinion 1/17 the CJEU for the first time applied Article 47 CFR to a court outside the EU judicial system. While the CJEU ruled that ICS complies with the CFR rule of law criteria, this article argues that it nevertheless falls short of the rule of law standards required for judicial bodies under EU law. The article demonstrates that the CJEU prioritises free and fair trade as the CETA’s core objective, rather than the rule of law, and endorses ICS as the conditio sine qua non of guaranteeing such trade. The Court’s findings have wider consequences for the rule of law in international law as the EU continues to pursue the establishment of a Multilateral Investment Court (MIC).
Australian Outlook, 2020
At the start of 2020, the new EU “geopolitical” Commission envisaged to strengthen the coherence ... more At the start of 2020, the new EU “geopolitical” Commission envisaged to strengthen the coherence between internal and external EU economic policies to build more strategic power in external relations. Its green strategy, framed as “European Green Deal,” has envisaged that Europe would become the world’s first climate neutral continent by 2050. In spite of, or rather due to, the pandemic, the Commission has been creative in attempts to turn coronavirus challenges into green (and digital) economic opportunities. As the year draws to a close, the Commission’s ambitions have been met with Member States politics, requiring further creativity in the implementation of the green plan for Europe.
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Books by Ivana Damjanovic
Papers by Ivana Damjanovic
decision to phase out nuclear power in reaction to the 2011 Fukushima nuclear incident. The challenge was initiated as an investment arbitration under the Energy Charter Treaty (Vattenfall II) before an ICSID Tribunal in Washington. In a separate legal action, the constitutionality of the decision was questioned before the German Federal Constitutional Court, which decided the matter in December 2016. Based on recent developments in the field of international investment law and the judgment of the Court of Justice of the European Union in the case of Slowakische Republik v. Achmea BV, the dispute proves more complex than it seems prima facie. The Achmea judgment confirms that in intra-EU disputes, EU law overrides intra-EU BITs. Even further, such disputes should not be subject to the jurisdiction of international investment tribunals, with considerable ramifications for international investment arbitration under the Energy Charter Treaty. Vattenfall and Achmea serve as case studies to explain controversial issues of applicable law and jurisdiction in intra-EU investment disputes under the Energy Charter Treaty. Arguably, applying German law and EU law rather than international investment law leads to prioritizing public interest over legitimate expectations of private investors, with significant implications in terms of compensation.
decision to phase out nuclear power in reaction to the 2011 Fukushima nuclear incident. The challenge was initiated as an investment arbitration under the Energy Charter Treaty (Vattenfall II) before an ICSID Tribunal in Washington. In a separate legal action, the constitutionality of the decision was questioned before the German Federal Constitutional Court, which decided the matter in December 2016. Based on recent developments in the field of international investment law and the judgment of the Court of Justice of the European Union in the case of Slowakische Republik v. Achmea BV, the dispute proves more complex than it seems prima facie. The Achmea judgment confirms that in intra-EU disputes, EU law overrides intra-EU BITs. Even further, such disputes should not be subject to the jurisdiction of international investment tribunals, with considerable ramifications for international investment arbitration under the Energy Charter Treaty. Vattenfall and Achmea serve as case studies to explain controversial issues of applicable law and jurisdiction in intra-EU investment disputes under the Energy Charter Treaty. Arguably, applying German law and EU law rather than international investment law leads to prioritizing public interest over legitimate expectations of private investors, with significant implications in terms of compensation.