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1
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Implementing Achmea: The Quest for Fundamental Change in International Investment Law

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Kułaga Ł.
Polish Yearbook of International Law
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2019
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vol. 39
227-250
EN
The judgment of the Court of Justice in the Achmea case evoked significant repercussions regarding the application and operation of the bilateral investment treaties (BITs) concluded between EU Member States. As a result of this decision, EU Member States have decided to terminate almost 190 intra-EU BITs. Nevertheless, full implementation of the Achmea judgment remains a complex issue, entangled in political and legal controversies concerning intra-EU BITs which have been present for more than a decade. On a more general level, the implementation process is simultaneously entwined in two other significant debates: the specifics of the rights of investors, and the relationship between EU law and international law.
2
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W kierunku zmiany paradygmatu międzynarodowych porozumień inwestycyjnych

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Kułaga Ł.
Forum Prawnicze
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2016
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issue 5 (37)
31–48
EN
The article addresses the problem of profound changes in international investment law that currently occur. One-sided development of this branch of international law has met considerable criticism from non-governmental organizations and numerous academic writers. Initiated reforms, discussed in the article, cover the relate to right to regulate, and changes in the substantive as well as procedural rights of investors with particular focus on correcting deficiencies of the ad-hoc arbitration mechanism. Conclusions indicate that the process of change that we witness can be considered as gradual recalibration of the paradigm of international investment agreements, which sets out to embody, to greater extent than before, values such as protection of human rights or environment.
3
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Ochrona praw człowieka w międzynarodowym arbitrażu inwestycyjnym

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Kułaga Ł.
Forum Prawnicze
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2014
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issue 1 (21)
41-59
EN
Article describes significance of human rights norms in international investment arbitration. Firstly, two theoretical issues are analyzed: nature of investor rights in international investment law and methods of importing human rights norm to investment arbitration. As regards the latter three methods were singled – systemic interpretation, analogy and comparative argument. Importance of this part flows from the fact that on the one side investment tribunals seems to consider impossibility of taking into account human rights norm when adjudicating on the basis of investment treaty, and on the other side occasional invocation of human rights jurisprudence by these tribunal without any explanation whether such invocation is legally possible. Secondly, different kind of using human rights in investment arbitration are presented: as a sword when invoked by investor, as a shield when invoked by a host state and as a double shield when invoked by amicus curiae. In conclusion it is stated that there exist legal techniques of bringing before investment arbitral tribunal human rights norm as an applicable law nevertheless often they are not used appropriately by parties and in consequence they are rarely taken into account in jurisprudence.
4
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A Brave, New, International Investment Court in Context. Towards a Paradigm Shift of the ISDS

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Kułaga Ł.
Polish Yearbook of International Law
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2018
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vol. 38
115-139
EN
The idea of a Multilateral Investment Court seems to be one of the most prominent initiatives of the “multilateralization” of international investment law during this century. The creation of a new international, permanent court concentrated on settling investor – state disputes is an extraordinary challenge. Possible problems relate not only to the negotiations concerning the organizational and procedural aspects necessary to ensure the efficient operation of this type of body. It is also necessary to take into account the dynamics of the functioning of international adjudication as such, as well as the controversies surrounding the international legal protection of foreign investments.
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Udzielanie wsparcia wojskowego stronie międzynarodowego konfliktu zbrojnego z perspektywy prawa międzynarodowego w kontekście agresji rosyjskiej przeciwko Ukrainie

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Kułaga Ł.
Przegląd Legislacyjny
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2022
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issue PL 3 (121)/2022
10-31
EN
Russia’s aggression against Ukraine and military support provided to Ukraine by third countries resumed the discussion on the continuation of the right to neutrality and its importance in the era of the United Nations Charter. Although some issues in this respect remained disputed in the doctrine, in practice the military support provided to the victim of aggression, i.e. Ukraine, is not considered by states (overwhelmingly) to be contrary to international law. At the same time, the scale of military aid provided to Ukraine has revived the discussion on the threshold required for the transformation of the status of a neutral state into a participant of military conflict. This topic has been analyzed in the last two decades primarily from the perspective of non-international conflicts (combating terrorist groups). The international Russian–Ukrainian military conflict made it necessary to re-verify this issue – both in terms of the scale and types of military equipment supplied, as well as new issues, in particular intelligence support and satellite data.
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Debata dotycząca możliwości powołania się na prawo do samoobrony przeciwko podmiotowi niepaństwowemu. Implikacje konfliktu zbrojnego w Syrii

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Kułaga Ł.
Przegląd Legislacyjny
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2019
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issue PL 1 (107)
55-82
EN
The right of self-defense in response to an armed attack by a non-state actor is considered as one of the most interesting and controversial issues of contemporary international law. It may be argued that this issue has replaced other important and so far widely debated topics concerning the use of force, such as humanitarian intervention. What these issues have in common is undoubtedly an important element in the philosophy of international law and the triad of values: sovereignty, human rights, justice. The right of self-defense in response to an armed attack by a non-state actor affects not only the classical ius ad bellum issues, but also relations between customary and treaty norms, the principles of attributing responsibility to a state, and the concept of positive obligations. The importance of this topic has been revealed in the context of efforts of international community for an adequate response to armed attack by terrorist organizations, especially Al. Qaida at the turn of the century and, recently, the so-called Islamic State of Iraq and the Levant (hereinafter ISIL or Daesz). The issue of the right of self-defense in response to attack by a non-state actor is not explicitly regulated in the Charter of the United Nations. For this reason, a critical approach to this type of practice was prevalent throughout the Cold War period. Significant changes in the positions of states have begun in the second half of the 1990s, and an important precedent in this respect were actions in response to the attacks of September 11, 2001. In view of the skeptical stance of the International Court of Justice in its Advisory opinion of 2004, a possible change in approach in this respect can be derived from the practice of combating ISIL since 2014 and UN Security Council Resolution No. 2249. These actions, according to many commentators, seem to lead to the conclusion that international customary law, which is an integral part inherent in the right of self-defense, has evolved towards the recognition of the right of self-defense in response to the aggression of a non-state actor.
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Sankcje Unii Europejskiej wobec Federacji Rosyjskiej w rezultacie agresji przeciwko Ukrainie z perspektywy prawa międzynarodowego

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Kułaga Ł.
Przegląd Legislacyjny
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2023
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issue PL 2 (124)/2023
8-39
EN
Russia’s aggression against Ukraine was met with an unprecedented level of sanctions applied by a number of states. These sanctions were autonomous in nature, i.e. implementing individual or collective (as in the case of the EU) initiatives of states. This approach was a consequence of the failure of the Security Council to adopt a resolution declaring that Russia’s armed attack constituted an act of aggression and ordering states to apply appropriate measures. The aim of the article is to show the spectrum of sanctions applied by the European Union (i.e. a non-party to the Russian-Ukrainian conflict) and to try to assess them from the perspective of general international law. In particular, the article identifies that sanctions adopted by the EU can be considered from the perspective of international law (i.e. EU and Member State obligations) as either retorsion or countermeasures by a third state. At the same time it was noted that the diversity of Member States’ bilateral international obligations towards the sanctioned state/entity may mean that while for some members of EU sanctions may be retorsion, for others they may turn out to be (sometimes only at the stage of possible legal proceedings) countermeasures.
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Udział Polski w transformacji międzynarodowego prawa inwestycyjnego. Aspekty prawnomiędzynarodowe i konstytucyjne

100%
Kułaga Ł.
Przegląd Sejmowy
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2018
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issue 3(146)
103–122
EN
International investment law is in the process of profound reforms, aimed at guaranteeing a better balance between the interests of foreign investors and the interests of host states. Such a process is strictly connected with the dispute resolution mechanism included in the bilateral investment treaties. The controversy resulting from the application of these treaties has led some states to take measures to denounce them. Poland has also taken such an actions, which are currently focused on BITs concluded with other EU Member States due to their potential inconsistency with EU law. The main aim of the article is to present the specifi cs of fi nal clauses of bilateral treaties on the protection and promotion of investments, describing solutions adopted by states in order to terminate those treaties and to present Polish practice in this regard.
9
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Glosa do wyroku Międzynarodowego Trybunału Sprawiedliwości z 1 października 2018 r. w sprawie obowiązku negocjacji dostępu do Oceanu Spokojnego (Boliwia v. Chile)

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Kułaga Ł.
Przegląd Sejmowy
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2019
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issue 3(152)
141–150
EN
The judgment of the International Court of Justice of 1 October 2018 in the case concerning the obligation to negotiate access to the Pacific Ocean refers to a territorial dispute between Bolivia and Chile, resulting from the loss of the access to the sea by Bolivia as a consequence of an armed conflict with Chile in 1880s. Filing a complaint in 2013, Bolivia demanded that the Court rule that Chile is obliged to enter into negotiations therewith as regards obtaining an agreement guaranteeing its full, sovereign access to the Pacific Ocean. Bolivia derived this duty from agreements it concluded with Chile, Chile’s unilateral acts, general principles of law, particularly estoppel, acquiescence and justified expectations, as well as resolutions of the Organisation of American States. Chile interpreted the bilateral relations in this scope differently and claimed that the duty of this kind had not arisen. This year, with the panel’s 12:3 decision, the Court decided that Chile does not have an obligation to negotiate with Bolivia its sovereign access to the Pacific Ocean. To the judgment there are attached: the declaration by judge A. Yusuf and dissenting opinions of judge P. Robinson, judge N. Salam and judge ad hoc Y. Daudet.
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