Taking due process seriously – The Administrative Court of Berlin doubles down on FDI procedural rules

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By Jonas Fechter, University of Münster / CELIS Deputy Assistant Director    I. Introduction Investment screening is infamous for the low number of judicial proceedings that have challenged the legality of the prohibition and mitigation measures imposed by governments. As a result, there is, as yet, no strong body of case law clarifying how investment screening…

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Global Telecom Holding S.A.E. v Canada – Investment arbitration as a potential remedy against negative FDI screening decisions?

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By Kilian Wagner, University of Vienna FDI screening and international investment law Bilateral investment treaties (BITs) and specific chapters in free trade agreements include substantive standards of investment protection. These comprise rules on expropriations, national and most-favoured-nation treatment, and the fair and equitable treatment (FET) of investments. Most BITs contain provisions on investor-state dispute settlement…

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The ECJ’s Judgment in Xella – Judicial Cherry Picking?

CELIS Update on Investment Screening – May 2023

By Alexia Crivoi, Vienna University of Economics and Business   Introduction In the much-discussed Xella judgment of July 13 2023, the Court of Justice decided two things: that the scope of the EU FDI Screening Regulation does not extend to ‘indirect FDI’, rejecting arguments relating to the company structure of an EU-based but foreign-owned investor…

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European Court of Justice case law on circumvention, “wholly” or “purely” artificial arrangements and avoidance

C-255/02, Halifax plc, Leeds Permanent Development Services Ltd, County Wide Property Investments Ltd v Commissioners of Customs & Excise, Judgment of the Court of 21 February 2006, paras 67-86 and 90-99. C-446/03, Marks & Spencer plc v David Halsey (Her Majesty’s Inspector of Taxes), Judgment of the Court of 13 December 2005, para 57. C-196/04,…

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