Unlock the Power of Online Signature Legitimacy for Administration in United Kingdom

How to eSign a document: online signature legitimacy for Administration in United Kingdom

I was just before I continue from where I was I think I'm doing reasonably well on time um can I just give the court uh two references that I meant to give uh this morning just on a point my Lord Chancellor mentioned yesterday which are in volume seven at tab 115 oh yes it's the report and the court will see that the date on the on the report from which we're reading regardless of whether there have any been any subsequent reports yeah um is the 18th of March 1965 and if the court goes over the page uh the relevant extract I we had the whole report before Mr Justice Fraser but the relevant extract here uh includes the passage at 42 in particular but 42 and 43 and uh we can see halfway down article 54 requires every Contracting state to recognize the award is binding and to of course obligations impos final decisions and um the other spot where we've got a little snippet of the report is in tab 118 at very back of tab 118 and there are three uh highlighted points on 3837 yeah uh top part um um was promoting an atmosphere of mutual confidence and stimulating larger private International Capital flows and so forth Mutual confidence we say reinforcing the Supreme Court in micha's analysis of a multilateral web of obligations um at the bottom of the page on the other hand adherence to the convention by country would provide inducement and stimulate larger flow of private International Investment to its territories which is the primary purpose of the convention so You' got twin purposes of stimulating cash of of flow of capital and investor protection to allow that Capital to flow and then the key one really is over the page yes which is the mutuality point that I think your Lord put to me yesterday and I read I haven't kept up which oh I'm so sorry it's the very back if you take Tabet 119 yes and then flip back one page yes we're in the back of 118 um and and the key one is really the one at 3838 um while the broad objective of convention is to encourage larger flow of private International Investment provision of the the convention maintain a careful balance between the interests of investors and those of States host States moreover the convention permits the institution of proceedings by host States as well as by investors and executive directors had constantly in mind have constantly had in mind that the provisions of the convention should be equally adapted to requirements of both cases so I only mention that in cases shadow of the point left that in the travo people were worried about the state enforcing and which way around the enforcement actions would be it's it's beyond argument that it was designed to apply equally to everyone but as I mentioned the report yesterday I just thought I'd show you it is 1965 and that's it um in if I can take the court uh if I may to back to the ECT there is one um provision which I so it's in the same bundle actually um one provision which I it's in 10 uh 106 tab 106 and there was one provision that I didn't mention and it is Salient because of the uh length of the sunset Clause being entirely uh consistent with the overall purposes of protecting long-term investments in the energy sector yeah we see it 47 on page 3631 which is almost at the back of tab 106 yeah article 47 just below No Reservations which I did take the court to um anytime after five years from the treaty Contracting party can get written notice of withdrawal and then two the withdrawal takes effect one year after date of notice so the minimum time that any country would be a party would be six years and then importantly the applicability of the provisions of the treaty continue for a further 20 years in article 473 so the provisions of the treaty shall continue to apply to Investments measures uh as of the date uh from the treaty takes effect for a period of 20 years from such date so that's the uh very long sunset provision in article 473 which does not sit well with the EU suddenly announcing unexpectedly the whole thing doesn't apply anymore so it cuts across the very clearly expressed intention that the rights conferred on investors under the treaty would continue to apply for the 20-year period in 473 it's very difficult to reconcile that 20 years after yeah yes if in year two there's an investment yes if I understood this correctly has to be year five earliest you cons serve notice is year five yeah then takes effect in year six yeah then minim then you got 20 years after perod it's a minimum of 26 years so the idea that one of the parties can come along go Abracadabra doesn't apply anymore as of today and now back to the or origin of time yeah is not exactly easy to reconcile with the express words of the treaty no and the evident purpose in in those Provisions I understand that the EU has now given my my Lord yes just I think just has Spain has denounced in The Gazette and so that 20year period runs from one year from the effective withdrawal denounced as different to giving sorry have you denounced or you withdraw there a reference somewhere to Spain having denounced I think we put denounced in our I think your chology they had denounced that might they have denounced it's in4 have we denounced I think it I think it it might matter and perhaps Spain could tell me which the answer is um I think it Italy left and the plan was for everyone to withdraw so I expect that the effect of what's been done is a withdrawal in ance with the terms of the treaty but we'll we'll find out but the translation in the official state Gazette is is Spain denounced the energy Char treaty on the by note verbal on the 16th of April 2024 yeah what's confusing uh is in the denouncement itself in the official Gazette which is actually in the bundle at 4521 it may be a translation issue but it's tab 154 I'm just looking at it 521 what they say at the bottom is um all of this is in ance with the provisions of article 472 of the treaty and article 20.3 of the protocol and 472 of the treaty is the date of withdrawal so it appears they're invoking the as I understand it from a Lear friend Mr miles very kindly Dr miles is gonna check but I think I mean this is a this is the official um Gazette yes not the actual um note verbal it's not the instrument it's the Gazette maybe The Gazette has translated it as denunciation exactly yes so I'm sorry given that it's under article 472 it does look like withdrawal by the way exactly exactly um so in Italy obviously left under withdrawal provisions on its own uh previously it's a ter it's a termination under the treaty under article 47 I'm told denunciation is not intended to convey anything else I'm told very helpfully um so that's that point then the um yeah seem to almost work uh the there was one point that I mentioned rain start coming in when it rain cup will be running over exactly there's also the possibility of a Marilyn Monroe moment here as the fan sweep F I'm trying to guard against as well so it's a multi faceted attack um yeah but um uh so there was one point that I did want just to take the cour to if I may which is in the comro decision itself yeah because I mentioned this point of competence which dve tales with the vclt provision that I showed the court precluding any Contracting party from relying on its own incompetence 41 exactly yeah Bund and so we're looking in bundle six at comro in tab 75 yeah and uh the relevant paragraph is paragraph 62 uh which is on par 62 which is at the foot of page 2807 MH and the court will see there however the exercise of the European Union's competence in international matters cannot extend in an international agreement sorry cannot extend to permit it in an international agreement a provision ing to which a dispute between an investor in one member State another member State concerning EU law may be removed from the judicial system of the European Union such that full effectiveness of that law is not guaranteed and that's one of the absolutely essential premises has been heavily criticized uh for the common sty decision uh for two reasons one is it's not EU law they're as to apply it's absolute plain in 266 second um that is a absolutely almost word for word breach of article 41 so it it's no surprise that I think because article the reference state in article 41 includes a pra transfer to Contracting party for these purposes so the r reio is treated as a Contracting Party by definition in the ECT alongside and with equivalent status to the states so I mean it's also it's it's it's not a surprise to find what1 because otherwise pack a sun sander doesn't mean anything because afterwards you go whoops so sorry and that's not the basis on which the good faith negotiation agreement performance of international obligations primarily rests I Mr found that said to us I think more that the real key backround on this issue is whether or not EU Law related to International yes but that doesn't seem to me to be be all an end of all your arguments not all to be that doesn't seem to be I mean that's that's one of your points but it's by far away no not your first point no I no I mean I say that's also with greatest respect I hope this argument in context in any event but there are there are all of the other arguments as well which which they derive from the the express word of of the words of the treaty and the vclt normal vclt U Provisions you showed us very briefly yes maybe Amison took the time you showed us very briefly Lord Collins's I'm just about to do that yeah the last two things there anybody in you may not know the answer to this but don't worry if you don't did anybody in Kroy actually raise with the European court that this wasn't an EU case at all oh well that yeah so it's a reference by the C relation to claimed by Ukrainian company against M company against malova rather yes um neither of which are in the some of the commentators have speculated that the parties might have been a bit perplexed had no had no interest they had no interest at all well certainly wonder why the court of P per referred it in the first place well my Lord can I I mean being candid well that that's a separate point I think they sort of felt a BL the problem is that the the reach and way that the with greatest respect European Union has used the duty of sincere cooperation is incredible uh and much of it was well intended but but it does put member states in a incredibly difficult position where and of course everyone's generally an Enthusiast for the European Union so one starts from that position within within the European Union um yeah so uh my lords have really only got two more things left so I'm hoping to uh finish reasonably close to you going to show us yes so it's it's bundle line yeah and it's tab 162 which is quite near the back the tabs very top slightly hidden yeah yeah and uh so if I just take take the tribal uh the through it the the at 4785 we've got the tribunal's reasoning on the intra issue and sets out the party's contentions and it's Salient there that of course the commission was intervening as it has done in many of these in several of these cases and did indeed in meul in in the courts of this country um so the arguments were made by both Spain and the commission and the essential argument in in this case was broadly the same as it was in uh before the tribunal in the case which the court seized of now the exit tribunal in our case they resolve the same jurisdiction issue which concern the same act mayor based in EU objection and the principal question is defined in 307 uh whether article 26 ECT generates obligations between EU member states because the member states the European Community were unable to contract uh contract obligations between them as regards the internal market and for this reason the EU is a Contracting party to the EC and then within this main point three 8 the the Inu disputes are outside the competence of the tribunal uh are the arguments of Spain the commission that uh one may ruling applies to multilateral treaties such as the ECT uh and the mazor on Spain award to the contrary is wrong because there a we before as Justice Fraser we had I think I can't remember how many of the awards that all find in our favor but lots of them we have obviously troubled Discord with them but there were can't remember how many quite a lot um and then uh two EU law is international law three EU law is Paramount and displaces any other National or International provision which is Primacy which uh parenthetically we'll see on on any view is an internal principle of EU law yeah uh EU law relevant to the issues in the arbitration applies to claims in the arbitration and the ACT May ruling is binding on the tri not because it has to apply EU law and in short um that is not uh accepted and at B the court first looks at does the does Mayor apply to multilateral agreements and after setting out the two relevant Provisions in um the ECT and exid as jurisdiction uh the tribunal recites obviously article 411 of exid which is the one I took the court to earlier judge of its own competence we already discussed that and then we'll see it 315 so far as the choice of law is concerned the combined effect of 421 of the exit convention and 266 is the tribunal which has jurisdiction under article 26 ECT applies by virtue of article 266 ECT uh the ECT treaty and applicable rules and principles of international law so that's the uh correct approach from an international perspective 319 um or 318 there there are therefore three ways in which Spain and the commission can argue the tribunal act jurisdiction first is it 319 um as a matter of construction the ECT doesn't apply to the present dispute uh principal basis of the argument is because the provisions related to Regional economic um organizations the tribunal has no jurisdiction because investment by an EU investor in another member state is not an investment in the area of another member State for the purposes of 261 um which obviously doesn't get anywhere because the other member states are Contracting parties um 320 the second way of putting the argument is to say that EU law is to be applied because it's applicable international law EU law has Primacy and EU law prudes intra EU investment disputes from being submitted to an extra EU dispute settlement and the Third Way which a variant on the second is to say that ECT settlement Provisions are inapplicable because they're inconsistent with the EU treaty obligations and therefore inapplicable by virtue of vclt or the ECT and so they dispose of the reio point which I won't trouble the court with and over the page 4791 we get the disconnection Clause point about which the Court's already uh heard something uh nor is there anything Express or implied to support the argument as implied disconnection clause and in The Reef case which interestingly actually my Lord Justice Phillips Reef was a an EU and a non-eu investor I think which is the example your lordship put friend um the purpose of disconnection Clause is to make clear the EU member states will fire you law into say rather than the convention um there was no need uh because there was no disharmony understood time and then if we go forward if we may they refer to the vclt on page 4794 article 31 article 30 and 31 and 32 and 41 with agreements to modify so they they I hope I fairly shown anything that could help Spain in the vclt um and G the ACT mayor ruling 4796 in determining the scope and effect of the ACT mayor ruling it's important to put its background in context and to give a detailed the account of its reasoning uh the arbitration which ruling rise was unal seat in Germany Netherlands Czechoslovakia bit by Dutch investor against Slovakia sorry um the tribunal award damaged against Slovakia which sought and the German courts have the awards set aside on the ground the award was contary to public policy because the tribal was unable to make a reference to cju and we saw from Advocate General W's opinion there's a slight Rider on that on the facts that Slovakia was still enjoying Slovakian investors were still enjoying protection under those very same treaties um and then so far as the material the questions referred were and you can see that questions referred um by by the bgh were there and then it it recites actually The Advocate General's opinion at refers to it at 340 and recites the passage I took the court to already um at 341 I'm going to trar with that and uh gives the CJ's answer which we've already seen and then there's a very helpful analysis of the crucial steps in the reasoning at 343 which actually is set out in numbered paragraphs on 4798 and the key ones we just go through them first one an international agreement cannot affect the allocation of power Powers fixed by the treaties or consequently the autonomy of the EU EU legal system observance of which is ensured by the court that principle is enshrined in article 344 tfu which uh under which the member states unate not submit a dispute concerning interpretation application of treaties to any method of settlement other than those provided of the treaties and um that's a reference there the cju opinion 213 is the one where the cju says no to the unanimous mandatory requirement in the Lisbon treaty that the EU shall exceed to the European convention on human rights which I referred to earlier yeah um just in relation to Le friends saying that the EU speaks with the voice of all the member states as a it's a very good example when it did the exact opposite um the autonomy of uh EU law is justified by essential characteristics all of this as I think your lordship observed earlier yesterday is actually largely courtade glosses on the actual Provisions they're not relying solely on the treaty Provisions um and then characterized by Primacy is point four and importantly and I'll come to this direct effect of the provisions which are applicable to their Nationals and to the member states themselves now just pausing that direct effect parenthetically is normally relied upwards by individuals against States not downwards on individuals so we'll come back to that in just very brief closing remarks five those characteristics given rise to a structured network of principles rules and mutually independent legal relations just I don't know what this is but it's getting could you possibly go and ring get them to come here immediately please as I'll carry on if if you could I mean I don't know whether it's the microphones in the room or they were fiddling around in the roof but I was told the fiddling around in the roof it's now stopped heting as soon as anyone comes my Lord I suspect it'll stop sure it but we getting it yeah um then six six the principle of sincere cooperation yeah um and then seven specific characteristics and the autonomy of the EU legal order again very much a uh a principle Fair elastic principle developed by the cju itself and the judicial system being a Cornerstone and then the application as analyzed by the tri tribunal at 344 um under the bit article 8.6 this is the point I made earlier to the court um the tribunals were obliged to take account of the law in force of the Contracting party and that's the distinction that many commentators including the dashwood article I referred to yeah have pointed out the ECT does absolutely abolutely nothing of the sort in fact it positively says something else um then obviously the point to the arit tribunal not part of the judicial system um and then Tethered to 8.7 of the bit in paragraph 4 on page 480 consequently the law applicable to the procedure uh limited review five and then by contrast with commercial arbitration where requirements efficient arbitration proceedings Justified limited review um provided that fundamental provisions of EU law can be examined Etc and then after the footnote arbitration Provisions under article eight of the bit derived from a treaty by which member states agreed to remove from the jurisdiction of their own courts hence from the system of judicial remedies that up by law disputes which may concern the application and so forth and then finally um at paragraph eight over the page the uh passage on multilateral treaties um it's true that ing to settled CL law of the Court an international agreement providing for the establishment of a court responsible for interpretation of its provisions and whose decisions are binding on the institutions including the court of justice is not in principle incompatible with EU law causing that my lords that's precisely the point that came out of the sea Authority yeah that I showed the court before I mean absolutely straight down the line well established and and and in Conroy they then they they admit it and then sidestep it with footwork which is more than DEA um competence of the EU in the field of international relations capacity to conclude International agreements necessarily entail the power to submit decisions of the Court created or designated by such agreements one would have thought it's all going the right way um but the second paragraph in the present case however apart from the fact disputes falling within the jurisdiction of the orbital tribunal referred to in article8 of the bit May relate the interpretation of both that agreement and of the E Law possibility of submitting those disputes to a body which is not part of the judicial system of the EU is provided for by an agreement which was not concluded which is concluded not by the EU but by member states so there's two points there there's the do it require article 8 requires them to apply domestic law which includes EU law not the ECT situation but also this bit is not concluded by the EU so there you go you can't have that and we've got precisely the opposite I'm making totally obvious point this is ECT is actually convened by the EU and it's a party to it so anyway there's a the dispositive is again set out repeated at 345 and then they deal with the two declarations we looked at my Lord La Justice new yesterday at 346 and 347 and 348 and in fact 349 so basically you get 22 of the member states under the obligation of C cooperation basically roll over completely um I can put it speedy terms I'm sorry in that way uh 348 then do the second declaration which qualifies the position on the ECT and in fact Hungary alone uh resists um so you don't get all of the EU countries and you certainly didn't get all the ECT members and uh at 4803 you got the first question as to whether the mayor ruling has any application and there's consideration of article 31 subsequent agreement regarding interpretation or application Etc so every uh Point fairly and squarely considered and 352 what is being said there is the EU has competence in the field of international relations to enter into an international agreement providing for the establishment of a court created or designated by such agreements as regards the interpretation and application of their provisions and whose decisions of binding on the institutions including the CGA are not in in principle compatible with EU law provided that the autonomy of the EU and this legal order is respected so that's referring to what AG the The Advocate General said and um just possibly speeding up a bit I mean if I take the court to the key paragraphs given the time um 355 this is uh the decision we've had opinion 109 um which is uh I I've already uh referred to briefly and then the essence of these decisions at 355 is contained in opinion 2113 the court of justice has admittedly already stated that in regards to National International agreement providing for the creation of Court responsible for interpretation of which Provisions whose decisions are binding on institutions including the court of justice is not in principle and compatable EU law as particularly case whereas in this instance the conclusion of such agreement is provided for by the treaties elves so it's pausing there um it it I haven't taken the court to all of the treaty me mechanics by which the court is bound by the international treaties but we have it within that quote already so it's it's there established um the court analyzes 4805 EU law as international law ju just before you do I mean the punch line for everything that you've done so far is 356 yes where the tribunal says we'll assume that uh Abbe would be appli the ECT so that's the starting point this is precc constru they make that assumption exactly so far everything is leading up to that it effectively is my Lord yes so then um so that that's that that's the the Assumption which they at that point some foresight because Com Drive follow exactly um so it's quite helpful as your lordship rightly points out but that is is included in the analysis it's an assumption that foreshadows com stri um and then at uh H EU law is international law and Primacy of EU law 359 in the view of the Tribunal the point that EU law or most of it is international law rulings of the cgu are part of international law is not in any sense conclusive question Still Remains as to whether EU law and the rulings of the cju are part of the applicable international law the second point is it's been established for more than 50 years it's a fundamental principle of EU law that the EU has created its own legal system which is an integral part of the legal system of member states which their courts are bound to apply the Third point is a system of references under what's now 267 uh to ensure proper application uniform application the EU law and then 362 but even if as a matter of EU law final determination of its content is reserved to the cju does not follow that non-eu courts and tribunals have precluded from deciding issues of EU law indeed it would be absurd if a court in a non-member state which otherwise had jurisdiction over a dispute but could not make a reference to the cju would have to refrain from dealing with issues of EU law raised by a party so breach of contract case in somewhere else and they say well I was required to do it by dired at which point everyone goes we got to stop the proceedings people deciding those points all the time um same must be true for a tribunals a for I for international tribunals and then although phrased in terms of interpretation of two provisions of the tfu it's hard to read the AC ruling is a normal case of treaty interpretation since article 267 is simply the latest iteration originally in article 177 of the treaty which is like what I took you to in Coster Andel of the power of national courts to make references and three for fall simply prevents prevents member states from submitting disputes concerning the interpretation or application of the treaties to any method and settlement other than providing treaties um then there's a residual remedy at 364 and then 36 five impossible to see on the face of Articles 267 and 344 tfu in ance with normal rules of treaty interpretation the effect of article 263 DCT is to prevent National courts from making references to the cju or to allow members states to submit disputes concerning interpretation or application of the treaties to any method of settlement otherwise than those provided in the treaties 366 the May ruling is a decision of on the Constitutional order of the EU in support of the policy of European integration rather than an orthodox application of the rules of treaty interpretation and I do respectfully say that is what we have seen it does look as if it really is just policy Le um as such the ruling of the cju is entitled the greatest respect from an international orbital tribunal such a finding is not in any sense uh but such tribunal is not in any sense Bound by the ruling nor consequently sorry sorry go no complete the parad nor nor consequently can the tribunal find but on any normal basis of interpretation under custom international law all the vclt of the dispute resolution provisions of the eect incompatible with articles 267 344 it goes on and as I understand it what you get from that paragraph in generally is two propositions first that an arbitral panel or court is not bound by what the CJ says about EU law exactly but secondly following on from that actually there is no conflict between the ECT and EU law correct the first conclusion only really matters if you then argue the second point now is it your case that the ECT is compatible with the Articles of the tfu yes completely and the contention by the EU that it's not we say is wholly inconsistent with the EU treaty architecture and constitutional order but we have to face the fact that the cju has declared that within the EU it is no I follow that but as a matter your case As I understood it this morning was that because the EU what exceeded to the ECT how it was put yes agreed to it that that it can't be argued that it's contrary to to EU EU law because they signed up to it yes and no one thought it's one of the treaties which the as you said a moment ago part of the treaty architecture exactly that's not sorry Nota has said oh no it isn't that's not the basis of the Lord Collins's decision cin says we're not bound by what the cju says and if we look at the substance there is no conflict between the treaties correct is that your case I hadn't understood it to case my lord it's slightly awkward we have to face the fact that Kroy has said that the the basis of disapplication has to be because there is a conflict that's that's the premise of of what we face when we look at comry and the argument from the other side but our primary case is that it that there is a conflict in practice there's a conflict because of what the court of justice said in constro but on a correct analysis on the international plane the issue can be resolved without any conflict on the basis of the reasoning here I I mean I followed the way I think I follow way way you're putting it I mean for this decision to be in point it has indeed to be the case we have to Grapple with whether the ECT is compatible with the provisions of the TF because that's the basis on which Lord Collins s Daniel Bley had yes reached their decision exactly and the short point is the the uh it is inconceivable that well there is no normal international law analysis which permits a conclusion that the ECT is inconsistent with the T tfu or te and we see that punch line in 370 11 and 12 exactly they say there's no conflict between article 26 and articles 267 and 344 such as to bring article 30 into pay and then they say it's not necessary to decide with the effect of article 16 M so we're very much in the territory you were rehearsing this morning but only in circumstances where the tribunal is actually addressing is a conflict between um the ECT and the substance of EU law yes and and my Lord the the the article 16 dispositive point only arises if contrary to to the international law analysis that it's perfectly plain what the position is and EU E Law doesn't Trump everything um they're not saying that EU law doesn't Trump everything but they're saying that if you look at the tfu it's not inconsistent yes we haven't really done that exercise well well my Lord the problem is that the only in we haven't done the exercise but the only inconsistency is uh the alleged inconsistency is on a totally false premise we say because the reasoning in act mayor stood on two bases one the specific provisions of article8 of the bit required the application of domestic law and that meant that included EU law that's one point and the other point was it was a treaty uh made between two member states and they couldn't take that right away from the EU but as a matter of international law the idea that the EU consenting to you doing that is contrary to the EU legal order I mean that's completely unsustainable we say and that that's why I haven't gone through the I haven't gone through a very detailed analysis and there was about four days of submissions available I've tried to do it reasonably in a reasonably focused way but the idea that the EU makes a treaty convenes a conference makes a treaty has its own detailed architecture within its own treaties constitutional treaties on the uh on whether or not uh proposed International treaties are compliant and doesn't use any of that and enters into that agreement and then everyone only realizes 20 years later that it's uh totally contrary to EU law on the most fundamental principles it's laughable I'm sorry to say it's laughable and it and it's and it's not in ance with EU law with international law to have a Contracting party a force you're right the party trying to convene the signature of the convention the ECT contending that it didn't have competence which is what it says in Conroy to enter into that treaty it's flatly contrary to the vclt for it to be entitled into international law to pray that in Aid I mean for for our purposes the two seems to me the two important subparagraphs of the conclusion in 370 are really nine yes if the principles in the AC May ruling apply to the ECT as a matter of EU law that cannot affect the jurisdiction of the tribunal exactly the applicable international law namely the ECT and the exit convention exactly so they're saying that's the applicable International correct and then they go on at 17 to say the fact that the EU law has Primacy under the principle of Costa does not affect the position that principle is concerned with Primacy over national law not international law whether customary law or treaty law exactly and I Al the there's one factual point which is factually at um paragraph 8.8 on 4810 now the question is did as a matter of international law did Spain or did Spain not give its unconditional sent consent to consent uh to submit to the dispute submit dispute to International arbitration and there's only one answer available factually it did and the EU agreed that it could as well in the ECT so there is really only only one answer uh we respectfully say that is available um on on that point my lords can I just end well you say this reasoning although obviously it's not binding on this in any sense because it's arbitration Tri is compel compelling reasoning it's it's completely vanilla International La reasoning applying treaty Provisions in a normal way and it anticipated com stra yes what is said in 366 and 379 we said Leal Force even exactly I I was going to do my Lord Justice Nei flushed that paragraph out I was going to do a little reveal at the end and it anticipated I still have trouble because I absolutely follow the tribunal says we're not found by what the CG uses yes and I see the force of that but that's only stage one stage two is they say well let's look at whether the tfu is inconsistent with the ECT yes and we we'll form our own view yes we haven't really had that argument but we we haven't and my Lord the reason I I've given a very short version and I've shown you that firstly uh International treaties concluded by the EU are part of the EU legal order and bind the institutions including the court now that if that's the key Point that's not in this reasoning at all this reasoning is about looking at articles 267 344 and comparing them with the ECT exactly and then they say doing that exercise we find there's no problem yes well any ordinary principle of treaty interpretation no problem but that's completely different from it is the points that you're no my Lord you're completely right I'm I'm hope I hope I'm adopting what they say on that because it makes total sense and I'm adding fortifying points which I've tried to elucidate which are the the Constitutional order of the EU including the treaty making power and the con quence of the EU entering into an international treaty being binding on the court and and that is binding on the Court's interpretation of the foundational treaties but if we're not worried about what the court says why are we worried about um whether it's binding on the court I mean Lord Collins says forget about what the court says interesting so that doesn't seem to I I was cheekily trying to ride the Conroy horse at the same time and just say that you know that does on an international normal international law analysis it's very difficult to get from the Constitutional structure the ca opinion which is exactly the same in terms of applying treaty made by the EU applying international law standards and not EU law exactly the same as the EC and that's the tribunal isn't suggesting otherwise the tribunal is saying we will construe these two treaties together how it comes out exactly and I I would adopt their reasoning just on the treaty comparison there only three paragraphs yes it's very short but but my Lord I adopt their reasoning but but I would also that's why I've sought to fortify it by demonstrating that you just can't justify the ca opinion on a treaty made by the EU that applies international law being fine and the ECT made by the EU applying International law not being fine when they specifically consider the same reason yeah so that the fact that the CER opinion found as it did strongly supports I would respectfully submit the analysis that there's no actual conflict but you adopt 363 to 365 I do yeah on that side of the argument can I just uh end if I may by uh uh going to bundle eight just to the the end of the article by uh sir Alan dashwood in tab 147 and he his commentary he lays out an analysis of how they actually decided the point over the first few pages which is um it self informative and then at 4403 he has his commentary on deciding the article 26 ECT in EU arbitration issue by OB dict and at the bottom of that page for lines up on the left hand margin he says the complete absence from the debate of the perspective of Inu investors the private parties most directly affected by the Deni of the right so uh and he's looking at that in the context of the over to dict sorry I couldn't find that where oh sorry it's it's a bottom left of 4403 left hand margin the word complete another serious procedural defect exactly sentence begins yes yeah that's the point we made a few times yes and then that's the point about it being over exactly and then there's another separate point above which we've touched on but it's at the top of just above the top hole punch the Constitutional objection is the court chose deliberately to act in a manner falling outside its jurisdiction because the question wasn't referred to it and the parties before it were not involved in a Inu um dispute and he then deals with the core argument on 4404 and he refers to the ca opinion which I've taken the court to top hole punch for that reasoning and uh takes a number of points there and then uh the intended scope of the international obligations at 4405 we've already touched upon and then he deals with his um on 4406 he between the two hole punches he doesn't understand what must be interpreted as not being applicable means because that's not something that's very easily matched to the terms of the ECT um and he says halfway down between the two old bues the court surely cannot mean that the consent given by the EU and member states to the intra euu applicability of the mechanism is negated by its lately perceived incompatibly incompatibility with EU law and then he brings the conclusion together at the bottom of that page and the only bit I wanted really to identify this cour is a new point that he raises as his fourthly paragraph the final paragraph and it starts off as sounding like quite an aesthetic legal constitutional point about direct effect on individuals he says fourthly and finally there's an issue which it is thought has never been fully to argued before the court of justice whether article 3440 feu provision of which the court says uh the principle of autonomy is enshrined um is capable of having direct effect for individuals more concretely if the interu EU applicability of arbitration under article 26 ECT must be seen as an infringement by the member states of their undertaking in article 344 not to submit disputes concerning interpretation application of EU treaties to any method of settlement other than those provided for in the treaties themselves would this necessarily entail the invalidation I would say at the words even but in the eyes of EU law of the offer of arbitration made to investors by article 262 and 263 26 3 ECT such an infringement of article 34 would be the fault of the member states that concluded the ECT without subjecting article 26 to a disconnection FL as well as the EU itself whereas investors who had accepted the offer of arbitration in good faith by commencing arbitration proceedings would be entirely blameless and one can also say they accepted the reassurance of the offer off of offer of arbitration in good faith in making the Investments um the disabling of such investors from relying on the unconditional offer in 263 would thus have the consequence of allowing a member state to profit from its own wrongdoing it is hard to think of any precedent where member states have been able in this way to exploit the principles of direct effect and Primacy of EU law to gain an advantage in litigation against a private party in the case law on direct effect of directives the court of justice has always insisted the direct effect flows upwards rather than downwards in other words while an individual May rely on Provisions contained in a directive that are unconditional sufficiently precise in proceedings against the member state that has failed to implement the directive properly this principle does not reply apply in Reverse member states authorities may not rely directly on the provisions of a directive they thought to they ought to have implemented where this would have been to the detriment of an individual if given binding binding Force Through the future ruling on article 267 feu the position taken by the court of justice constro would condone a gross instance of member states profiting from their own wrong through the reverse application of direct effect can the court of justice really intend such an act outome my lords that is a striking and fair summary of the effect of the Judgment in uh Kroy being taken to effectively have direct effect against individual investors in that way and for those reasons that's another reason um that's another reason why even with the within the eu's own legal architecture it is analyzed from the outside an astonishing result to have reached that Al unless I can help the court further um thank you very much my Lord could we possibly take a five minute break so I can we can all SWAP position reply finish oh he's got to reply um do you want to reply and then we'll have a break I I'm in your hands I will be 15 minutes we thought the break may be used to uh why don't you reply and then we'll we'll break that we've got to finish at 4 4 today so one one thing I'd like you all think about is whether we need to start earlier tomorrow partly because we can't stop before 10: but also um it occurs to us that given the Zimbabwe represent the representatives in the Zimbabwe appeal again have the opportunity to at least to comment to some extent on what submissions been made on behalf and against spay um the obverse may also be true in fence it may be that you and Mr Green want to say something it's on stage not encouraging you to do so don't have to don't feel obliged but it just occurred to us that um that it may be that something that could be factored into tomorrow and that might also lead to needing a little bit more time my my we are obliged and uh we certainly on our side both States would welcome the extra time sure we also are aware where we don't need to speak we will not and so far I hope if there's nothing else we agree on we have stayed away from overlapping issues to possible um my Lord I will be short there's obviously a lot one could say but can I start by perhaps addressing just one of the thinking overnight about trying to be helpful at least one of the questions that uh Lord Justice Phillips asked me my Lord can I just give you two references you asked me about the governing law of the treaty and then the governing law of the arbitration agement the ECT and then the governing law of the arbitration agreement that arises out of it in terms of the treaty and that that being governed um by international law that's just vclt article 21A my Lord I I won't take you to it because I don't have time but I will if you look at the case of gpf and Poland gpf that's a high that's a decision of this jurisdiction gpf in Poland bundle 3 tab 42 paragraph 9 you'll see their confirmation that the arbitration agreement that comes out of an investment treaty so there's a standing offer then there's an arbitration agreement that comes out of the acceptance by the investor is also governed by international law and that was first established in the case of Ecuador and Occidental which is referred to there from I think 2006 but that case so my all that that's just a reference for you for your purposes a question I um staying on Lord Justice Phillips's question um my my Lord you asked a question and I will probably not recollect it properly so I'm going to try you'll tell me if I'm wrong this is the interaction between section n and section two um you were concerned that if the analysis I put to you is correct how does that interact with or does that undermine section two of the siia and um section one of the 1966 act I if I understood you correctly my Lord the first point to make on that if I may is that that um that would be true of any award that's not just an IID award because section nine asks a question was there an agreement to arbitrate second point is my lord your question is exactly the point we're trying to make which is arbitration Awards get through immunity under Section N9 not under section two so we do not see an inconsistency there because it really should Al always be about section 9 that's the first point we also don't see an inconsistency with section one of the 1966 act because my Lord as I emphasized strongly um in the beginning of my submissions that stage you do not even reach until you've cleared the immunity hurdle and you will not have cleared the immunity hurdle because of section nine my Lord I know that article 16 um there was some time spent on that uh and that's article 16 of the eect uh could I just briefly give you our submissions on why we say that is not applicable here and and we do not believe it it's a conflict SC either could I invite you to go to it my lords it's um in Bundle 7 106 page 3611 the bundle Lord while you're doing that my lords could you also keep handy my learned friend skeleton in paragraph 81 that's I when one looks at uh the if we can start with a text of the treaty in article 16 you'll see that it is about uh treaties which concern part three or five of this treaty which is the investment protection uh regime my Lord so it's about treaties that both have an investment protection regime and that's why um and my Lord as as I think my friend even confirmed around 1254 I timed it the the EU treaties do not have an investment protection regime so this provision doesn't apply which is why in his skeleton when he discussed it in 1812 he said to the extent that the tfu cover the same subject matter of the ECT quad n and then he carries on well we say that they don't have the they the the tfu does not have an investment protection regime and that provision doesn't apply that's how first point the second point is my Lord we submit despite what the Swiss Court may have said this is not really a conflict SCE it's more of an interpretation Clause the conflict Clause very clearly will say this is disapplied as I showed you when I showed you article 30 and I showed you one of the cases that's our the mission on article 16 my Lord there was a lot of critique of the cju B on its reasoning on Professor dashwood on The Advocate General's opinion and internal inconsistency that uh uh my learning friend um articulated and took you obviously I should say Spain does not agree or accept that critique of the CJ but that's we say neither here nor there because we were not sure whether they were just prejudicial statements or whether they were actually inviting this court to find that there is no conflict that was a question we had on this side um and if that is what is being done which I now think is the case then we say it's frankly too late because as I said at the very beginning of my submissions on section nine the judge very clearly accepted there was a conflict and that part of his judgment has not been appealed or challenged and I can show you it again if you would likee it's at paragraph 87 of his um judgment it's the first sentence I consider that there is a clear conflict between the EU treaties as their application to National arbitration and the ECT I in no I put so so it's paragraph 87 87 my you'll remember this this was a paragraph I used as as as a starting point because what I was I was trying to and the reason why we did not address whether there was a conflict or not we did not understand this to be challenged and so I took that as my starting point to then say well where the judge goes from that is really the question for you my Lord but even if you are now willing to accept that that's what you're being invited to do we we reserve our rights on that because obviously we we did not think that that was being challenged and that's not been done properly we say that what the cju has done and what it does when it um uh declares a conflict and why we don't think the Calum reasoning works is that it is announcing an authentic interpretation and that authentic interpretation my Lord is uh is a very specific has a very specific meaning in the bclt you'll find the provision at 313a which is treaty parties can by subsequent practice provide an authentic interpretation of how their treaty relations work there's a lot of alarmism about the whole EX system coming down etc etc this is just about the E the masters of their own treaty relationships telling you what they believe their treaty means and my all this is a new reference sorry just before you go on yeah that means you're not accepting that point of Lord Collins Lord Collins I think says well who cares about what the cju says we can make up our own minds you're not accepting that I'm not accepting that but my Lord that is only if you are are willing to entertain the idea that you are being invited to write a judgment that says there's no conflict and on that point can I understand um do you do you say there is a conflict because the court of justice has decided something and that fins or do you say there's a conflict or I suppose the real question is on what basis was the judge approaching it was he approaching it on the basis of a conflict because the cju says so or was he approaching it on the basis that there's a conflict because of the substance of um I'm trying to understand I'm afraid I don't know what he what was going but I can tell you what we submitted to him very similar argument was played out and we said to him that this is not for you my lord and he seemed open to that idea as you can tell by his conclusion for him to go behind the reasoning of what essentially treaty parties are telling you their treaty means and I follow that by that again is inconsistent with Lord Collins because Lord Collins definitely goes into whether or not there is an underlying he does he does and we don't agree with that but that's only if you accept that as I said to you we say that part of the judge the persons and judges um finding has not been challenged so we don't think we get there but if you do get there I'm about to take you to a paragraph to explain why we say you can't go behind what the cju as expressing 27 you member states is um understanding of their of their CH relationships but can I just take you two well the judges the judges reasoning I read it in paragraph 87 that four lines down he says if intra arbitration constitute El law principles governing either the primary the CJ EU EU principles generally then this must and can only arise from the EU treaties themselves I cannot see how it can arise in any other way therefore if that is the case the must must be a conflict so that's the basis on which he says there were the conflict and then he goes on to to say that doesn't mean that doesn't mean that that um that either the cju or the EU treaties um have have um effectively trumped the ECT quite right my Lord and that's why I said that the key question for you was what is the effect of that conflict is it as my friend seems to be urging you to conclude that there is this two level or two legal orders that govern interpretation of a treaty one that's internal and one that's external that binds you I've never seen any book that said that I don't remember him taking to a book that says there is two laws of interpretation of treaties but that is what we say there is only one law that governs treaty relationships and that is international law and and the whole point of taking through the rules of EU Primacy and then Article Five was to explain why if you accept the conflict like he did that is um that that's applying the rule of U premacy which is the rule of treaty conf but of course you you may come to a different conclusion but the point is the starting point was conflict we did not think that was being challenged but if it is then can I just show you why it is not open to a court or anybody to go behind what the treaty parties say is an authentic interpretation of their treaty relationships sry which which treaty parties the EU member EU EU member states one sorry so yeah to the ECT and the tfu can I just show you um uh it's a new it's volumes nine my Lord I have 164 ither that's a great start neither do I very pass sorry for that do do you my what I wanted to show you was on page 4826 um paragraph 16 it's on the right hand side as you look at the page it starts um paragraphs 2 and subparagraphs 3 and b which is referring back to 31 3A and B uh represent forms of authentic interpretation these are things that happened post the treaty relations the treaty and the agreement being concluded whereby all parties themselves agree on or at least accept the interpretation of treaty terms by means which are intrinsic to the treaty here it's a practice um which we say as as contained in the CJ's cases on Primacy and as a result the party's authentic interpretation what the treaty terms is not only particularly reliable it is also endowed with binding force uh it provides ex hypothesi the correct interpretation among the parties in that it determines which of the various ordinary meanings should apply it has been argued above that article 31 par 1 does not permit The Interpreter to legislate or revise the treaty but authentic interpretation presents a different situation since the parties to the treaty are their own masters but it's it's a bit of a jump to say that doesn't just apply in relation to dispute about the tfu but it applies in relation to whether there is a conflict between the ECT and the tfu because the passes to the ECT definitely haven't all sign I it's very important what what I'm saying this represents in terms of authentic interpretation is the rule of Primacy what that rule does in terms of disapplication is obviously not interpretation so it's just a rule of Primacy that the treaty parties based on the tfu through the CJ are telling you is there conflict all I I don't know if that I wasn't saying that it also goes to explain what this doesn't address at all an issue where there's where there's a conflict between the the signatories of the treaty I mean what we have here is what is essentially a political dispute with respect in which it would appear 22 of the 28 on one side five are on the other and I think Hungary isn't is not not playing ball at all th this doesn't really deal as I read it with an with an issue about where they don't agree amongst themselves to direct interpretation of their treaty Am I Wrong my that's that's prec construct but I'm not sure that we accept that there is this 225 result the Declarations were taken you were taken to were precc constr for the five parties and all they said was because it's still being decided by one of the courts we will hold fire but they did accept acmea in that same declaration so we do not accept that this idea that what the cju said in relation to the conflict with ucct is does not represent the unanimous view of the EU member states and you've not been shown any document that says they don't agree with that uh with that following up from my Lord Justice ne's point I'm also struggling I can see that the EU member states possibly speaking through the cju can can authorit determine what their treaty means why does that mean that they an authority determin what that means in relation to another treaty to which they are not a so sign I mean surely that's that would that would be an extraordinarily unilateral and high-handed result my can I can I if I may just do a little Q&A as it were if it was just another treaty between two EU member states I don't think you would find it as extraordinary I think what you're if I may assume you're finding extraord is that you're saying it's an ECT with many other non-eu members and that's where my bilateral analysis kicks in because what we're saying to you is that the best way to analogize this is the EU member states amongst themselves saying this is how our treaty relationships work and how they're prioritized when they're conflicting it's nothing more ambitious than that to affect third party member states now of course you may take the view that it does and then you it's a multilateral if it's a multilateral treaty the fact that they between themselves may have agreed something bilateral but bilaterally doesn't help and that's really the point I think my Lord's put into you that there are a whole load of other countries including the UK which are signatories to the ECT um members of the EU quite right my Lord but our analysis does not impact those non um EU member states they've never complained about this either for that reason what we are saying is that accepted your analysis well my Lord they could have said this they could have sued under the ECT if what we're doing is incorrect and it harms them but what I'm saying is that this is analogous to well it's it's the member State parties in relation just to their relationship under the ET that is being disapplied it's not more than that it's not impacting the UK Kazakhstan or any other nonu member my lords just um one more Point by May and that's really this um it's my learned friend approach to te treaty interpretation I don't have enough time but can I just make some high level points um the first is um there is no doubt that conflict rules exist I've taken you to multiple international law texts that show that they also show that those conflict rules as a matter of international law and not just in the TCH in the treaty they can be in practice and they can be concluded and set out in subse practice after a treaty is concluded but if my learned friend is right with his analysis of why didn't you agree a disconnection Clause why didn't you modify why didn't you do this under the vclt then essentially you would never have uh a a very good conflict argument because you would just say well you should have just always put a reservation in so there is no idea of this Mutual EX exclusivity of what one can do when it comes to outcomes and I want to take you back to the text the leading international law text which showed you that when there is a conflict the parties are encouraged to terminate but before that termination those obligations are disapplied so when he took you to the sunset Clause that's all well and good but the text that I took you to told you that before termination disapplication occurs I audit the um schmalenbach text in volume 8 tab 141 you took us to that in your main I did I did as long as you have it but I I just want to remind you my laws with this idea that because there's termination the suggestion will there something in consistent it's very clearly here says states must terminate the agreement but even before termin ation and this is the book on international law and treaty uh uh treaty law even before termination its Provisions are not applicable so there's no idea and I've not seen anything suggested of mutual exclusivity as to how these people work and I know you need to that can I just just be absolutely clear in my own mind going back to the Vienna convention you don't suggest article 41 applies no do you suggest that article 30 applies no M because because that's you may recall I showed you that that is um a default provision and we have a special conflict rule of the Primacy yeah and it's the same subject matter as well we do not accept the same my Lord um you've got the references in what I said in my submissions when I took you to the same book which showed you the problems the limitations of article 30 as being a default rule that is limited and that often you have to go outside to see what the treaty par have agreed so to be clear once again yeah you're parting company from Lord Collins because he says but we're not bound by what the cju says and then he says but we'll look at principles of interpretation by reference to the vien convention and doing so we conclude there's no problem right my Lord and and when when I reason why I took you to the text I did there is nothing inconsistent or incorrect as a matter of international law to go outside the vclt when it comes to conflict rules because those conflict rules in there are not supposed to be comprehensive my Lord can I just end by correcting something and jumping back to ground one and then I will sit down unless your Lordships have further questions um my Lord the chancellor yesterday said that the Sia had a list of um treaties or proceedings that were excluded or or repealed to which the Saia didn't apply but I I just want to make clear that that's not what the provision says it's a list of excluded matters so proceedings to which it doesn't apply and that is of course a significant difference because the 1966 um Act is not listed there um unless your Lordships have any further questions I I didn't have anything more say my lords could I just correct one tiny point because it's a bit important it wasn't addressed by un friend in opening um it's just on the point he made about article 30 and article 16 I think my Lord will justce knew he has it already probably but the the point is in article 16 the the overlap of subject matter is confined to part three and five which is fair and Equitable treatment and so it's remedies and the isds provisions in 16 and for for 30 you have to have same subject matter of the whole treaty I don't think that okay just just to be clear what the that what they're not the same yeah they're not the same and my we we I never said they will what I'm saying is at article 16 the isds regime does not exist in the tfu so that particular provision cannot apply because it can only apply to Provisions that treaties that contain that regime yeah as Patrick green well I think we should definitely take half three just slightly after r a MO right morning have you switched over the clock you you can use it for your SK Supreme ofield small I'm ready forid they're all there they made a supp could put it on the front of my k yeah probably qu R if able please the court uh in this appeal I appear for the board parties together with Mr canelli and Mr ramond my learned friends Mr Mulan Kings Council Mr Tomkins Mr rius appear for Zimbabwe uh my lords whilst it may appear slightly old for me to be going first yes um since Mrs Justice Das ruled in favor of my clients uh the reason for that is as your Lordships have no doubt understood that we do not seek to uphold the leared judge's order for the reason she gave uh and since the Lear of Judge found against my clients on both sections 2 and nine we are effectively the appellant my other friend graciously recognized that and you will hopefully have seen the correspondence that was sent to the court last week reflecting that in terms of the order of submissions um Lords I propose to in the light of my Lord flows comment earlier that we've got to 4:15 today um I've spoken to Mr Mulan and we agree that it would make sense to begin at 10: tomorrow morning if if the court is able yes for and and we also would suggest that we try to reserve perhaps 15 minutes in case there are any additional points that the uh other parties want to raise at the end in sir reply whatever I say that on the basis that as as the court will have seen both Spain and the self parties have left quite a lot of the work on section two and section nine for us um and those are obviously important points and they will take a certain amount of time to develop sure um so what I was proposing is that I will speak for the remainder of today which is just under 45 minutes I will then uh probably have an hour and a half perhaps a little bit more tomorrow morning to conclude my primary