Protesting Austerity at Courts and Tribunals

Research Project: Protesting Austerity at Courts and Tribunals

Dr Ioannis Glinavos, i.glinavos (at) westminster.ac.uk, @iGlinavos

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Stating the problem:

Individuals suffering negative impacts from austerity policies are looking for legal redress. There are three levels of legal action envisaged, one national (constitutional law violations for example), one international (ECHR on property violations, or EU law) and one supranational (ISDS).

The national route has met with limited success for specific categories of people, usually for employment rights or compensation for protected employment groups (Greece, Portugal). The international route has resulted in no successes, even though a number of applicants have tried to argue property rights violations at the ECtHR and attempted to bring claims all the way up to the CJEU.

The supranational route is perhaps more fruitful, but is only open to foreign investors, and protects a limited range of issues that are perhaps side-effects of economic adjustment and austerity.

An interesting aspect of the supranational route is the potential conflict between EU law and CJEU competences and investment tribunals when the dispute is an intra-EU dispute. Examples of these are Postova v Greece, Laiki v Greece and Eiser v Spain.

 

Research aims:

My research focuses on exploring the potential of ISDS to challenge economic reform/fiscal stability measures in Europe post financial crisis. This brings together elements of international investment law and EU law, alongside debates on public international law and the function of treaties at international and regional level. The aim is to offer clarity on investor rights and avenues for redress when states implement radical changes in economic policy.

 

Outlets and impact:

This research is of high policy significance as it relates to ongoing disputes at investment tribunals and brings in recent developments at EU law (Achmea decision). This has high impact potential both for the legal profession, investors and policy makers. There are also key theoretical points raised by this study both as to individual rights in dynamic policy environments and as to the coherence of EU law vis-à-vis the international investor protection legal framework. Finally, this research has direct impacts on Brexit too, as investors can protest the loss of rights engendered by the UK’s departure, utilising the same arguments investors in Europe are using to resist economic policy reversals. The research produces work in highly ranked academic journals and is disseminated via mass media.

 

Bibliography and outputs:

Books

  1. Redefining the Market-State Relationship: Responses to the Financial Crisis and the Future of Regulation (2013) Routledge, London, 184 pages

Peer Reviewed Papers

  1. Brexit, the City and Options for ISDS (2018) ICSID Review – Foreign Investment Law Journal, forthcoming
  2. Public Interests, Private Disputes: Investment Arbitration and the Public Good (2016) Vol.13(1) Manchester Journal of International Economic Law 50-62
  3. Haircut Undone? The Greek Drama and Prospects for Investment Arbitration (2014) Vol.5(3) Journal of International Dispute Settlement 475-497
  4. Investor Protection v. State Regulatory Discretion (2011) Issue 1 European Journal of Law Reform 70-87

Chapters

  1. Solar Eclipse: Investment Treaty Arbitration and Spain’s Photovoltaic Troubles, Chapter in Lessons from the Great Recession (2016) Emerald, 251-271

Articles

  1. How Greece’s gold mining trouble could derail CETA (20.9.17) The Conversation UK, and in Greek in The Huffington Post Greece
  2. The big challenge of the NAFTA renegotiations: dispute settlement (14.8.17) The Conversation UK
  3. How to Protest Brexit in an Investment Tribunal (31.7.17) Oxford Business Law Blog
  4. Brexit And The High Cost Of Promises (20.7.17) The Huffington Post
  5. Why the EU’s Singapore ruling does not lead to a smoother Brexit road for Britain (22.5.17) The Conversation UK
  6. Brexit Lawsuits, But Not As You Know Them (9.5.17) Verfassungsblog
  7. CJEU Opens Door to Legal Challenges to Euro Rescue Measures in Key Decision (21.9.16) Verfassungsblog
  8. Challenging Emergency Liquidity Assistance Decisions in International Tribunals (1.7.16) Oxford Business Law Blog
  9. Digging Up the Past: Can Greece Handle Another PSI Challenge? (20.10.2015) Kluwer Arbitration Blog
  10. Greek 2012 Haircut Survives Challenge at ICSID (2015) Issue 3, Corporate Disputes 94-97
  11. A New Era in Investor-State Dispute Settlement: Arbitrating the European Crisis (2015) Issue 1, Corporate Disputes 60-64

 

If you working in this area and would like to know more, please contact me.

 

 

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#BrexitLawsuits in #ISDS

brexit lawsuits

It is possible for investors to successfully challenge the UK government for losses incurred as a result of Brexit.

The following links offer an introduction to the topic and an explanation as to why law firms are working on this issue.

A podcast on Brexit Lawsuits is available on

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For an introduction to the podcast watch this video

For a layman’s explanation see the introduction to these suits in the Huffington Post (here).

For a more ‘lawyery’ explanation of why this is something the British government should worry about, see my article on Verfassungsblog (here) and an update on the Oxford Business Law Blog (here). In fact the government is worried about it, as evidenced in the statements by Liam Fox.

disputes

My full scale analysis of the issue is introduced on Academia (here) and SSRN (here).

This research has been published in a major article on ICSID Review. Click here for the abstract and contact me directly for free access if you do not subscribe to the Journal.

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Feel free to get in touch to share your thoughts or comment using the options below. There is after all a very lively debate on this topic.

@iGlinavos

 

 

 

 

 

Briefing: #Article50 and #BlackWednesday

Today Theresa May pulls the Brexit trigger. Read all about what this means for markets following the links below.

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Articles

  1. Grexit, Brexit και τα παραμύθια (23.3.17) The Huffington Post in Greek
  2. No-Deal Brexit And Fear (17.3.17) The Huffington Post
  3. The City of London is preparing for a hard Brexit (19.1.17) Newsweek
  4. How Eastern Europe is best placed to hit the ground running after a hard Brexit (15.12.16) The Conversation UK
  5. #Marmitegate: what the tumbling pound means for our favourite products (13.10.16) The Conversation UK
  6. Why TTIP will live on, but not for the EU (30.6.16) The Conversation UK

Media

  1. 10.16 Guest on BBC Radio 4 Today Programme, speaking about Brexit (listen here
  2. 06.16 Guest on ΣΚΑΙ radio, speaking about Brexit -in Greek- (listen here).
  3. Horror Show: Brexit unleashes a political nightmare (1.7.2016) Raconteur Magazine,

@iGlinavos

#Article50 and the end of the beginning

Theresa better off

Theresa May is finally ready to cross her Rubicon by notifying the EU of Britain’s intention to leave the Union, using the famous Article 50 process. Brexit minister David Davis told us last week that the possibility of a no-deal Brexit is not as frightening as some people think. Think about it this way, currently one can go online and order a fancy desk lamp from a French company and pay the price plus postage. If the lamp was coming from the USA however, customs duties will need to be paid by the customer (5.7%) once the goods have arrived in the UK but before they are delivered. She will also be charged import VAT at 20% and there will be a £8 handling fee to pay. The consequence is that buyers may well seek a domestically manufactured lamp instead. Wouldn’t this be a great thing for local manufacturers? It might, but it is likely that the domestic lamp manufacturer would incur similar charges when importing components to make their lamps. Further, they will find it more expensive to sell their lamps in Europe. Selling on WTO rules necessitates having appropriate licences and making export declarations to customs and following transport procedures. Increased demand from local customers will be probably offset by increasing costs of manufacture and a loss of market share in Europe. Mr Davis may not scare as easy as the consumers and businesses who will suffer the consequences. Brexit is happening regardless.

To summarise, we can say the following: Theresa May has selected two avenues for achieving Brexit. One is a so-called hard-Brexit (exit from the Single Market and the Customs Union) while the other is a presumed ‘no-deal’ Brexit (trade with Europe thereafter will be governed by WTO rules). Both options raise a series of significant dangers for the British economy, and crucially present a formidable challenge to the Treasury. The City has indicated that continuing business in London will require significant tax cuts as compensation for the loss of ‘passporting rights’ in the case of a hard-Brexit. Alternatively, a ‘no-deal’ fall back on WTO rules will cause significant upheaval to manufacturers, necessitating state aid to a number of industries. How will the Treasury fund either (or both) remains a burning question.

Good luck to all of us.

Art50

@iGlinavos

 

 

 

Who stands to win from #Trump and #Brexit?

One would say that both Trump and Brexit are the result of populism, complacency and … to be frank stupidity. But they have more things in common. They both benefit the financial industry. See my two recent articles on Newsweek exploring what this new order means for our banker friends.

What does a hard Brexit mean for the City of London? (read here)

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What does Trump deregulation herald for Wall Street? (read here)

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@iGlinavos