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ICSID Trumps State Aid in the UK but Uncertainty Remains Regarding Enforcement of New York Convention Awards in post-Brexit UK journal article

Ana Stanič

European State Aid Law Quarterly, Volume 19 (2020), Issue 2, Page 165 - 171

On 19 February 2020, the UK Supreme Court unanimously held that by virtue of Article 351 TFEU UK’s obligations under the ICSID Convention trump its duty of sincere co-operation under Article 4(3) TFEU to give effect to a State aid decision of the European Commission. In doing so, the UK Supreme Court also made clear that ICSID arbitral awards rendered by arbitral tribunals established pursuant to intra-EU BITs and ECT will be enforced in the UK. Whether in post-Brexit UK enforcement of intra-EU BITs and ECT arbitral awards will be refused on the grounds of being contrary to EU State aid law if sought pursuant to the terms of the New York Convention remains unclear given that State aid currently forms part of the on-going negotiations between the UK and EU regarding their future relations. Keywords: Micula, State aid, ISDS, Achmea, duty of sincere cooperation, public policy


State Aid and Access to Sport – Lessons for VAT Law? journal article

Jacob Kornbeck

European State Aid Law Quarterly, Volume 18 (2019), Issue 2, Page 138 - 156

Whereas discussions of the applicability of EU law to the sport sector have tended to focus on the ‘specificity’ of the private rules (lex sportiva) of sports governing bodies (SGBs), embracing ‘specificity’ carries the risk of exempting specific legal entities rather than specific activities worthy of exemption because linked to specific public policy objectives. However, as this exercise has yielded dissimilar results in different areas of EU law, there is scope for one area to learn from the decisional practice and case law of another area. It is submitted that an emerging ‘access to sport’ doctrine can be identified in the field of EU State aid law, already inherent in the relevant legal requirements, including Commission Reg. 651/2014 and Notice C/2016/2946, as confirmed by the decisional practice of the Commission as well as recent case law including Alpenverein [2016] and Hamr Sport [2016]. The field of EU VAT law could benefit from some of the insights generated within State aid law for, while the legal framework is different, as defined in Article 113 TFEU, the recent case law has engendered a questionable doctrine, notably in English Bridge Union [2017], making the physicality of the activity the yardstick while, crucially, dependent on formal recognition by SGBs. The paper will argue in favour of adopting a health-enhancing physical activity (HEPA) doctrine, as already enshrined in relevant EU sport soft law and, indirectly, within the area of EU State aid law. Keywords: VAT; Sport; Specificity; Access to sport; Public policy; Health-enhancing physical activity (HEPA).

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