Investment Protection in Different Legal Regimes: A Comparative Analysis of the Energy Charter Treaty and German Constitutional Law in Light of the Vattenfall Case

Seminar/Forum

Investment Protection in Different Legal Regimes: A Comparative Analysis of the Energy Charter Treaty and German Constitutional Law in Light of the Vattenfall Case

Room 628, Level 6
Melbourne Law School

Parkville campus

185 Pelham Street

Booking not required

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Melbourne Law School

International investment law has been strongly criticised within the academic and public debate. Besides the alleged privileged procedural treatment of foreign investors through Investor-State Dispute Settlement, a substantive gap between the standards of protection in International Investment Agreements (IIAs) and national legal orders is a common subject of concern. However, legal protection of property is inherent to all democratic, liberal and market-based jurisdictions. The potential difference in the level of protection between IIAs and constitutional law is, thus, decisive for the assessment whether governments and legislators may be deterred from necessary regulation in the public interest due to feared arbitral proceedings (so-called regulatory chill).

As for Germany, the phase-out of the use of nuclear energy has led to an investor-state arbitration as well as to proceedings before the German constitutional court. The arbitration in Vattenfall v. Germany is only one out of around fifty intra-EU arbitral proceedings initiated under the Energy Charter Treaty (ECT). Hence, the jurisprudence of arbitral tribunals applying the ECT shall be analysed and compared to the protection of property under the German Constitution. International investment law and constitutional law increasingly share parallels in terms of both methodology and level of protection. An adoption of constitutional concepts in arbitral jurisprudence as well as recent treaty practice may result in a higher acceptance of international investment law as a whole.

In this seminar, Fabian Blandfort will be presenting his most recent research on the investment implications of Germany's nuclear power phase-out.

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