Arbitration analysis: A recent judgment of the Grand Chamber of the Court of Justice of the European Union (ECJ) held that in cases where an arbitration clause in an intra- EU Bilateral Investment Treaty (BIT) is contrary to EU law, domestic Member State law may not allow a Member State and a private party to conclude an ad hoc arbitration agreement with the same content and submit that dispute to an arbitral body with the same characteristics as that envisaged under the BIT, extending the principles established in Achmea v Slovakia (Achmea). The judgment confirms the significance of the Achmea decision and buttresses it so that it may not be circumvented by means of Member State domestic law. It also builds on the approach illustrated in another recent Grand Chamber judgment (Moldova v Komstroy) and makes it clear that Member State domestic courts are under a duty to set aside an arbitration award made on the basis of an arbitration agreement that would violate the Achmea principle. Given the narrow legal context of the case, the judgment also raises questions about the scope of the applicability of the above principle.

The full article written by Professor Panos Koutrakos, was first published by Lexis®PSL on 2 November 2021, and can be read here.

EU Law analysis: This judgment by the Court of Justice, Grand Chamber, is about the preliminary reference procedure (Article 267 TFEU) and the power of courts of last instance in EU Member States not to refer, provided that certain conditions are met. It reaffirms existing case-law and provides further guidance about how domestic courts must decide whether the interpretation of EU law is so obvious as to render a reference unnecessary—on the one hand, they are not required to examine all language versions of EU law and may decide not to refer even in cases where different interpretations are possible but not sufficiently plausible; on the other hand, they must be particularly vigilant, given the objective of uniform interpretation of EU law, and must provide reasoning for their decision not to refer. The judgment confirms the significance of courts of EU Member States in the process of interpretation of EU law while it makes it clear that their power is neither unlimited nor unchecked. It is also helpful for practitioners, as it highlights the relevance of the information they may provide domestic courts in order to argue that a reference to the Court of Justice be made. Written by Professor Panos Koutrakos, barrister at Monckton Chambers and Professor of EU Law, and Jean Monnet Professor of EU Law at City, University of London.

This analysis was first published on Lexis®PSL on 14 October 2021 and can be found here.

The scope of the new UK subsidy control regime, set out in the Subsidy Control Bill that is currently before parliament, differs little from the EU state aid regime, apart from its non-application to UK primary legislation. The question of whether a tax ruling is a ‘subsidy’ will therefore typically depend on whether it is ‘specific’ – and the answer to that question in a tax context involves applying effectively the same principles as are used to decide whether a tax ruling or tax rule confers a ‘selective advantage’ in EU state aid law. However, while its scope is similar, enforcement and remedies under the new UK regime will be very different to the position under the EU regime: in particular, a substantial enforcement gap is created by the absence of an independent body with powers to initiate investigations of non-published subsidies and the restrictive rules on standing.

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Local Government analysis: The High Court dismissed a claim for recovery of tuition fees which the Secretary of State for Education (via the Student Loans Company) had paid to an Alternative Education Provider which enrolled students onto one particular course but registered them to the relevant awarding body for a different type of qualification. The case is of substantive significance as it clarifies the parameters of use of the Education (Student Support) Regulations 2011 (the Regulations) for recovering overpayments of fee loans. The judgment also clarifies the appropriate sanctions for failure to meet the requirements of course designation under DfE issued guidance entitled ‘Alternative Providers: Specific Course Designation. Guidance for Providers: Criteria and Conditions’ (the 2013 Guidance). The Secretary of State has lodged an appeal at the Court of Appeal.

The full article written by Imogen Proud, was first published by Lexis®PSL on 16 September 2021, and can be read here.

Imogen Proud considers the nature and scope of the right to education under the Human Rights Act 1998 (“HRA 98”).

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Imogen Proud has produced an update of “Dealing with a human rights challenge – checklist” written by Eric Metcalfe.

This checklist provides a step by step guide to dealing with a challenge under the Human Rights Act 1998, including the defences of lawful interference with qualified rights and acting pursuant to legislation.

This was first published by LexisPSL Public law on 22nd July and can be read here.

In May, the EU General Court issued two further judgments in the run of cases on the application of EU state aid law to tax rulings by national authorities. The judgments confirm that, although the state aid rules can apply to rulings involving intra-group transfer payments, the Commission faces a high burden in showing that such rulings involve state aid. On the other hand, they also confirm that EU state aid rules potentially apply to any failure by the tax authorities to challenge complex tax avoidance schemes. Because EU state aid cases can still arise from the UK, UK tax advisers need to pay attention to these cases – and the principles they raise will also potentially carry over into the new UK subsidy regime.

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1. The title of “Injunctions and Trusts” is broad. My plan is (i) to start with some history, (ii) then look at how the injunction jurisdiction can usefully be described today, (iii) then look at Proprietary Claims Constructive trusts and tracing, and (iv) then look at the meaning and effect of the example freezing order and recent judgments which have misunderstood this. (v) Our time is limited and I hope that we shall have some time for questions at the end. I will start with some history.

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This was an appeal to the Commercial Court on questions of law, arising in a London arbitration on cargo claims on bills of lading brought by the consignee and its insurers against the shipowners. The case concerned the counterclaim by the shipowners for costs incurred in Spain by the ship’s managers in successfully defending claims brought against them by cargo insurers in the Spanish court, for which they were not the responsible carrier. The counterclaim was brought by the shipowners for their managers’ own loss.

Please click here to read full article by Steven Gee QC, Christiana Pyrkotou and Aimilia Efstathiou.