To read the article written by Josie Clarke, please click here.
This case is an enforcement action against the UK, and its subject matter is the Supreme Court judgment Micula and others v Romania ( UKSC 5). The judgment was handed down during the implementation period when EU law was applicable under Article 127(1) of the Withdrawal Agreement,
In its 2020 judgment, the Supreme Court authorised the enforcement of a 2013 arbitral award against Romania for a violation of the Sweden-Romania Bilateral Investment Treaty (BIT). In its action before the Court of Justice, the Commission argues that the UK Supreme Court violated a number of EU law obligations: even though it is a court of last resort, it failed to refer to the Court of Justice under Article 267 TFEU; it misinterpreted Article 351 TFEU which is about international agreements concluded by Member States prior to their EU accession; it violated the duty of cooperation under Article 4(3) TEU by deciding matters pending before the Court of Justice; and it violated Article 108(3) TFEU on state aids.
In his Opinion, delivered on 9 November 2023, Advocate General Emiliou suggested that the Court of Justice declare that the UK Supreme Court had violated, on the one hand, its duty to refer under Article 267 TFEU and, on the other hand, its duty of cooperation by refusing to stay the domestic proceedings until the Court of Justice adjudicated on the matter. In his Analysis, he referred to a chapter written by Professor Koutrakos entitled ‘‘International agreements concluded by Member States prior to their EU accession – Burgoa’ (included G. Butler and R. Wessel (eds) EU External Relations Law – The Cases in Context, Hart Publishing, Oxford, 2022, pp. 133-143).
Professor Koutrakos has written widely on the issues that arise in this case. On international agreements concluded by Member States and EU law, he has written, amongst others, the authoritative EU International Relations Law 2nd edition. On BITs and EU Law, he has written, amongst others, ‘The Autonomy of EU Law and International Investment Arbitration’, (2019) Nordic Journal of International Law, pp. 41–64.
To red full article please click here.
Mark Brealey KC has been featured in this months edition of Lawyer Monthly – ‘Delivering Excellence in Competition Law.’
‘Navigating the intricacies of competition law has always been a challenging task, and one that has only grown more complex in the UK and internationally since the completion of Brexit. With new authority over infringement decisions now granted to the Competition and Markets Authority (CMA), specialist knowledge is required to properly litigate competition law.’
‘This month we have the pleasure of hearing from Mark Brealey KC, an expert in the field of competition law who has represented the likes of Pfizer and Ryder in numerous consequential cases. In this exclusive interview, he speaks in depth on his journey into law and offers unique insights on how the field of competition law continues to develop today.’
To read the full article please click here.
To read the article written by Gill Plimmer, please click here.
The comments made in this case note are wholly personal and do not reflect the views of any other members of Monckton Chambers, its tenants or clients.
George Peretz QC was quoted extensively in this article in which Lawyers reject Liz Truss’s claim that UK is able to dump parts of the treaty with EU without its agreement..
“I can’t see how any lawyer could possibly advise the government that they’ve got a slam-dunk case. What I’ve seen so far doesn’t give them sustainable legal cover.”
Peretz reckoned the government would struggle to justify invoking article 16 based on economic problems, because these were known about in advance. “It was pretty obvious to both parties that putting a border down the Irish Sea was going to divert trade, so that would be a bizarre argument,”
“In international law, social unrest is not a basis for denouncing a treaty which you’ve signed,”
“If the advice is all about the conditions for exercising article 16, this is something the government might arguably be able to run. As to whether there’s an argument for simply ditching parts of the treaty on the basis that the text isn’t binding on the UK any more, that’s much more difficult. And I think there’s general agreement about that.”
To read full article and these comments in context, please click here.
In this career quiz Will highlighted how he has as a treasured memento, his late pupil supervisor’s old desk and one piece of wisdom he likes to recall is that it is important not to forget that “judges are, ultimately, just people.” His parting advice to those who would like to do what he now does – “Think about whether you really want to do it. I have always found working at the Commercial Bar to be incredibly stimulating and intellectually rewarding, but it is not for everyone.”
You can access the full interview here.
Helen Thomas writes:
“There is a decent legal debate going on about whether the 2018 amendments really imposed a higher standard, or just properly reflected UK law and our legal system. “All the House of Lords did was to make express all those things that the UK courts would require anyway,” says Philip Moser QC.”
To read full article, please click here.