Arbitration in Hungary author, Andras Daniel Laszlo, published an article in the 2016/6 issue of Európai Jog. The article examines the interplay of international law and EU law in the case of intra EU BITs by analyzing the position of the European Commission as reflected in arbitration awards, and assesses the chances of an infringement procedure against the participating members states on the basis of EU law. The author argues that the enforcement of mandatory EU rules in the case of arbitration based on intra EU BITs is almost always ensured. On the other hand, the outcome of an infringement procedure is uncertain. Therefore, the European Commission should rather use its resources to ensure the same level of protection in EU law as the protection enjoyed by certain investors under intra EU BITs, and to further any necessary reform of the existing investment arbitration regimes, rather then dismantling the system of investment arbitration within the Union.
A copy of the article in Hungarian is available here: Intra EU BIT Europai Jog 2015_6
The award on jurisdiction and liability in ICSID case ARB/12/9 Dan Cake (Portugal) SA v. Hungary has been published, available here. We will be posting commentaries soon.
The Hungarian parliament repealed the controversial restriction on arbitration relating to so-called national assets. Two and a half years after the introduction of the restriction, and one and a half years after its much debated approval by the Hungarian Constitutional Court, Hungarian law will again permit arbitration in relation to contracts that relate to national assets.
The adoption of the Transatlantic Trade and Investment Partnership (TTIP) treaty by the EU and the US, including its Investor to State Dispute Settlement (ISDS) mechanism, should be a significant development in investment arbitration. Since the issue of “secret courts” is one of the focal points of protests against the TTIP, to form an informed opinion it is worth taking a look at the ISDS rules of the EU- Canada Comprehensive Economic and Trade Agreement (CETA), which is likely to serve as a regulatory model of the TTIP ISDS rules.
In a recent decision published under BH 2015.14, the Hungarian Supreme Court confirmed that arbitral awards have a res iudicata effect and that an arbitral award disrespecting the finality of an earlier award can be annulled on the basis of the public policy clause of the Hungarian Arbitration Law. The Supreme Court also clarified the scope of such effect, and its interpretation has important implication for litigants faced with incomplete arbitral awards.