Good Faith and Sincere Co-operation (original) (raw)
Related papers
2019
Having in mind that this is the first time that a Member State decided to withdraw from the EU pursuant to Article 50 TEU there are many aspects of this process that attract the attention of scholars studying EU related issues. Regardless of the outcome of the ongoing political debate and the course of action that will be taken eventually, after the CJEU decision in Wightman, we deem the need to further explore the extent of Article 50 and its implications on a number of stakeholders self-evident. In this paper we will deal with the capacity of non-EU countries to negotiate and conclude bilateral agreements with the UK i.e. a country withdrawing from the EU. The analysis is based on the proposed framework under the Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the EU and the Euratom and the possible interpretation and understanding of terms "the principle of sincere cooperation" and "the Union's interest" in this context, the principles of international law including the provisions of the Vienna Convention on the Law of Treaties and the general principles of Union law. The primary focus is on the legal uncertainty the lack of a more thorough approach creates to non-EU countries, especially to third countries aspiring to join the EU. Considering that they do not participate in the withdrawal negotiations, it is a challenge for them to take part in prospect bilateral negotiations with the UK, while, at the same time, making sure they stay on their EU path. We argue in favor of the deal, as a universally accepted approach in case of future withdrawals, not only for the purpose of establishing a reference for any future application of Article 50, but also for providing legal certainty to those parties that are not prima facie affected by the withdrawal, but that do have to act in accordance with all deals made without the right to be heard.
LLM Course on the Law of Treaties: Session 11
Considering the Interpretation of Article XI of the US-Argentina BIT according to the VCLT; Considering that the Tribunal's award erroneous held that Argentina had breached the fair and equitable standard and the Umbrella clause of the BIT; Considering the Tribunal's failure to apply the defence of 'necessity' under Article XI of the BIT, equating it with the 'necessity' contained in Article 25 of the ILC's Articles on State Responsibility for Internationally Wrongful Acts (customary international law), manifestly ignoring the rules of primary and secondary norms; Considering that the Tribunal manifestly exceeded its powers in failing to apply the applicable law: Article XI of the BIT; and Considering that the proper application of the "necessity" clause remains uncertain; this party request the annulment of the Tribunal's award of September 28, 2007, concerning the appropriate interpretation of the words "measures necessary for… the protection of its essential security interests" in Article XI of the US-Argentina BIT, as follows.
Good Faith in International Law
The American Journal of International Law, 1992
As a 'general principle', good faith forms part of the sources of international law. Still not widely examined in relation to rights and obligations, the aim here is to demonstrate the specific characteristics of the principle. In general, international law rules such as pacta sunt servanda, abuse of rights, estoppel and acquiescence and the negotiation of disputes are grounded, to some extent, in good faith. In treaty law, good faith has various manifestations from the time prior to signature through to interpretation. These are outlined here. The article argues that good faith acts to mediate the effects of States' rights in international law, in order to achieve acceptable results when competing interests exist. Fundamentally, good faith is a limitation of State sovereignty, albeit one that is necessary, as it protects other States and their trust and reliance in international law.
The Concept of “Agreement” Under Article 101 TFEU: A Question of EU Treaty Interpretation
44 European Law Review 196, 2019
Despite the importance of the “agreement” concept under art.101(1) TFEU, the concept remains underdeveloped by courts and commentators. This article reconstructs the “agreement” concept based on theories of legal interpretation and contract as well as comparative law insights. It argues, based on a theoretical framework for EU Treaty interpretation and a broad, objective conception of an antitrust agreement, that the objectivity and correspondence requirements for contractual agreements have continuing relevance, while the precision requirement should be appropriately relaxed, for antitrust agreements. Drawing on insights from US antitrust jurisprudence, it advances three concrete proposals emerging from the in-depth comparison between antitrust and contractual agreements, namely that the art.101(1) “agreement” concept embraces tacit collusion, encompasses concerted practices and decisions of associations, and is independent of subjective intentions.
Interpretation of International Agreements Concluded by the European Union and its Member States
e European Union has competence to enter into international-law relations and conclude international agreements. From a theoretical point of view, these agreements do not constitute a homogeneous source of EU and international law but di er based not only on a criterion of their content, but also who is their party. Some of these agreements have been concluded solely by the European Union, some together with its Member States and some by Member States on behalf of the Union. e article thus provides a classi cation of the international agreements that have been concluded by the European Union and in its second part it focuses on problems with interpretation of these agreements. Since both the European Union and Member States are involved, the crucial question is who is competent to determine the authoritative, correct, and binding interpretation of these agreements and to what extent.
The Potential of Article 259 TFEU as a Tool for Upholding the Mutual Trust in the EU
EU and Comparative Law Issues and Challenges Series, 2022
The principle of mutual trust, whose fundamental importance is recognized by the CJEU, is not mentioned in the Treaties, but nonetheless, it plays an essential role for the EU integration process and has become a structural principle of the EU law. In addition to its role as a basis for a large set of EU rules in the areas such as the internal market and the area of freedom, security and justice, this principle is also closely related to the EU founding values including the rule of law. Having in mind that is not a “blind trust” but an assumption, it is applied through ensuring compliance with the Union law for which both the Member States and the European Commission share responsibility, inter alia, by means of the infringement procedure. Under Article 259 TFEU, Member States are also entitled to bring a direct action against another Member State for an alleged infringement of an obligation under the Treaties. However, it is extremely rare for a Member State to take action upon the...