By Sanna Katariina Elfving, PhD student (University of Surrey)

Brought before the European Union General Court on 11 January 2010, Case T 18/10 R [2010] OJ C 100/41, Inuit Tapiriit Kanatami and Others v Parliament and Council  challenges the European Union by seeking the annulment of Regulation (EC) No 1007/2009 on trade in seal products which imposed a ban on imports into the EU and sale of products deriving from all species of seals on 20 August 2010.

The applicants (natural persons, commercial companies and non-profit-making organisations and associations representing Inuit interests) have also applied for interim measures on the grounds that the regulation causes them ‘serious and irreparable harm’ as it affects their living conditions (1) by preventing them from exporting their seal products to the EU and (2) interfering with the whole social fabric of Inuit communities since seal hunting forms part of their ancestral tradition.

Although the General Court dismissed the two applications for interim measures in April 2010 and October 2010, the decisions are still significant because the arguments submitted by the applicants involve a range of issues relating to the legislative competence of the EU institutions, the standing rules of private applicants before the European Courts, the application of the fundamental human rights within the EU as well as the status of Indigenous peoples in EU law.

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By Antoine Martin.
The Treaty on the Functioning of the European Union (TFEU) establishes the European Union’s exclusive competence on trade (Article 206) and foreign direct investment (Article 207), as part of the common commercial policy under Article 3(1)(e) TFEU. EU FDI, however, are currently regulated through 1200 Bilateral Investment protection Treaties (BITs), creating various standards of treatment and a certain degree of legal uncertainty at the EU level.

As a result, and although BITs remain binding on the Member States under public international law, the Commission recently adopted a proposal for a Regulation as to how the BITs adopted between Member States and third countries might be handled in a close future.[1] The proposed Regulation would deal with the transitional consequences of the EU’s new competence on investment, maintain the status quo by authorising the continuation of the existing agreements entered into by EU Member States (Chapter 2 and Article 3 of the proposed Regulation) and suggest procedures as to the development of new agreements in time.

Member States, in addition, would be required to “take the necessary measures to eliminate incompatibilities, where they exist, with the law of the Union contained in Bilateral Investment Treaties concluded between them and third states” (Proposed Preamble at 8).

Overall, the Commission acting in the light of the exclusive competence of the EU regarding the common commercial policy would be involved at every stage of the negotiations by the Member States pursuant to Article 218(2) of the Treaty (“The Council shall authorise the opening of negotiations, adopt negotiating directives, authorise the signing of agreements and conclude them”), although States might require a certain degree of confidentiality to be maintained (Article 14).

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By Robert Grabosch, Attorney at law
A recent decision of a U.S. appellate court has quenched much hope for the availability of legal redress at U.S. courts for corporate misconduct in the Global South. As this post explains, the jurisdiction of civil courts in the European Union over European corporations’ conduct in the Global South is significantly less problematic than the jurisdiction of U.S. courts. Read the rest of this entry »

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