Report on the Doctoral Seminar on International Investment Law
at the University of Cologne

The doctoral seminar on International Investment Law at the University of Cologne took place on 6 July 2018 at the premises of the International Investment Law Centre Cologne (IILCC). The IILCC welcomed 10 participants who had chosen a great variety of topics related to international investment law. The seminar was led by Jun.-Prof. Julian Scheu (University of Cologne) and Dr. Martins Paparinskis (UCL) who alternately moderated the presentation sessions. Each presentation was followed by feedback and discussion with the moderators and participants.
The main purpose of the seminar was to provide a forum for doctoral students to present their research and thereby practise their presentation and argumentation skills. The seminar also aimed to give the participants the opportunity to explore new approaches for their research projects and to get connected with other researchers in their field.

After short opening remarks by Julian Scheu the word was given to Benjamyn Scott (University of Cologne) who examined the interaction between International Investment Law and Cybersecurity within the European Union by raising the question of how cyber-attacks can impact on the investor protection under bilateral investment treaties (BITs). More specifically, his presentation was focused on determining whether network information systems (NIS), as defined in Art. 4 of the NIS Directive, constitute an investment under the BIT system. He concluded by stating that Cybersecurity will play an important role in the international investment regime. Right after, Youngkyu Kim (University of Cologne) dealt with by far the most discussed issue in the realm of international investment law over the past few weeks – the judgment of the European Court of Justice in the Achmea case. In his presentation he set the focus on the Court´s reasoning. The focal points of the analysis were why an investment arbitration tribunal is not a court or tribunal of a Member State within the meaning of Art. 267 TFEU, why the Court draws a distinction between commercial and investment arbitration in regard to the compatibility of arbitration agreements with EU law and why the dispute over the Netherlands-Slovakia BIT falls within the scope of its exclusive jurisdiction. He came to the conclusion that the Court´s reasoning is not in accordance with its previous judgments. At the close of this session, Alexander Dünkelsbühler (University of Cologne) talked about foreign policy exceptions in international economic law. He focused on the conflictual relationship between Non-Precluded Measures (NPM) Clauses embedded in BITs and the use of sanctions as a policy instrument. Moreover, he touched upon the possibility to justify the use of economic sanctions on the grounds of circumstances precluding wrongfulness under general international law.

After a short coffee break, Tuija von der Pütten (University of Helsinki) presented her doctoral project and the current academic discussion surrounding climate change mitigation and international investment arbitration. Furthermore, she explained her core objectives and methodology which will be used for the research. She was followed by Hailemariam Ayano Getachew (University of Erlangen Nuremberg) who gave a presentation on “Foreign Direct Investment in Land and International Investment Protection Law: an African Perspective”. He set the focus on the interaction between foreign direct investments in land and their effects on human rights in Africa. He also pointed out the decisive role of BITs in promoting win-win situations by ensuring social and environmental safeguards. This second session was closed by Joseph Crampin´s (UCL) presentation on Parallel Proceedings and Abuse of Process. After he explained the issue of multiple claims in respect of the same harm in international investment law, he turned to the utility of the abuse of process doctrine to be the panacea for the problems resulting from parallel proceedings. For this purpose, he looked at cases where the doctrine has been seriously discussed. After his concluding and summarizing remarks, the second session came to its end.

The lunch break was followed by presentations held in German. Johanna Braun (University of Cologne) dealt with the question to what extent the circumstances in the host state can influence the investor protection with regard to the fair and equitable treatment (FET) standard. First, she identified various manifestations of the FET standard. Then, she addressed her main question to each of them and concluded that circumstances in the host state are of importance in nearly every specific manifestation of the FET standard. Next up was the presentation of Johanna Baumann (University of Cologne) on full protection and security in the context of crisis situations. Her analysis began with a brief explanation of the characteristics of the full protection and security (FPS) standard. Then, she turned to the main issue of her presentation, namely to what extent should be taken into consideration the domestic political situation of the host state when determining if a host state violated the FPS standard. She discussed the advantages and disadvantages of both the objective-absolute and subjective-relative approach. In the remaining time of this third session, Petyo Nikolov (University of Cologne) presented the newly established Network of Doctoral Students in International Investment Law, which enables its members to stay in touch and exchange views on a regular basis.

In the fourth and final session we resorted back to presentations in English. First, Sarah Mayer (University of Siegen) talked about “Corporate Social Responsibility and International Investment Law”. She discussed the ongoing debate on Corporate Social Responsibility (CSR) in a nutshell. Then,
she pointed out the deficiencies of the concept, such as lack of a clear definition and legal tools lacking of effective enforcement mechanisms, and outlined that “in accordance with the law of the host state”- clauses are a practicable way to make transnational corporations responsible for violations of legal standards in the host state. The last presentation was “A Legal Study on the Protection of Labour Rights and Interests in International Mergers and Acquisitions - Based on the Comparison of China and German Legal System” by Xia Longyang (University of Cologne). In his comparative analysis he made interesting references to the differences between the Chinese and German labour law considering international mergers and acquisitions. He also provided some legislative suggestions on how the Chinese labour law can be improved.

In their closing remarks, Julian Scheu und Martins Paparinskis thanked all participants for their interesting presentations and their active participation in the lively discussions. Herewith the doctoral seminar was closed and followed by dinner and get-together in a local traditional restaurant.

Report by Petyo Nikolov (International Investment Law Centre Cologne)