You are here: Institute People Academic Staff et al. Jarrett, Martin
jarrett@mpil.de
Tel. +49 (6221) 482-633
Employed Positions:
Since Oct. 2021: Adjunct Lecturer, Ruprecht Karl University of Heidelberg (link)
Since Jan. 2020: Senior Research Fellow, Max Planck for Comparative Public Law and International Law
Aug. 2018 - Dec. 2019: Senior Lecturer, University of Mannheim
Jul. 2012 - Jul. 2018: Lecturer, University of Mannheim
Academic Qualifications:
- Doctor of Laws (summa cum laude), University of Mannheim (Supervisor: Prof. Dr. Oliver Brand, LL.M.)
- Graduate Diploma of Legal Practice, College of Law (Sydney)
- Bachelor of Laws (first class honours), University of Newcastle (Australia)
- Bachelor of Arts, University of Newcastle (Australia)
Research Stays:
Dec. - Mar. 2019: Visiting Researcher, University of Sydney
Aug. - Sep. 2018: Visiting Researcher, University of Helsinki
Jul. - Aug. 2018: Visiting Researcher, George Washington University
Jul. - Aug. 2017: Visiting Researcher, University of Sydney
Professional Qualification:
Solicitor and Barrister (New South Wales, Australia) (not active)
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In March 2018, the European Court of Justice handed down its decision in Slovakia v Achmea. This decision let off a Krakatoa-like eruption in the world of international investment law. Effectively, the European Court of Justice sought to interdict investment-treaty arbitrations between European investors and EU Member States, noting that these disputes make up a large portion of all investment-treaty arbitrations. As the dust has now settled after the initial blast, it is time to take stock and ask: what impact has the Achmea Decision actually had? In this video, I give an overview of the legal issues that arose in international investment law post-Achmea and examines the responses to those issues.
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In December 2020, China and the European Union concluded the long-awaited China-EU Investment Agreement, officially known as EU-China Comprehensive Agreement on Investment. Its significance cannot be overstated – it will provide the legal framework for European investment into China and Chinese investment into Europe. In this presentation Dr. Martin Jarrett, Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law, gives an overview of the contents of the treaty and identify its positive and negative aspects.
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As part of its broader push to ‘Unionise’ international investment law, the European Union has proposed the Investment Court System (from which the Multilateral Investment Court derives) to replace traditional investor-state arbitration (ISDS). In this presentation I give an overview of the two distinctive features of the Investment Court System relative to traditional investor-state arbitration, namely the random appointment of arbitrators from a pool of state-chosen potential arbitrators and the appellate tier. These overviews highlight the legal problems that the introduction of these two innovations could give rise to. To conclude, some comments are offered on the future challenges that the European Union has to overcome in making the Investment Court System a reality.
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When governments began implementing tough Covid-related measures and the business world started hurting, law firms were quick to remind investors that they have possibilities to complain about these measures under investment treaties. Civil society groups saw the threat of a flood of investment-treaty claims. An offensive was started in the media to bring attention to this apparent problem. Further, a draft treaty was produced that would operate to stop the flood – 'Agreement for the coordinated suspension of investor-state dispute settlement with respect to COVID-19 related measures and disputes’. In this video, Dr. Martin Jarrett, senior researcher at the Max Planck Institute for Comparative Public Law and International Law, analyses some of the legal technicalities of this proposed treaty. Three issues are in focus: - Can investors’ access to arbitration be suspended without their consent? - If a state exercised its discretion and elected to suspend investors’ access to arbitration, would that suspension affect jurisdiction, admissibility, or merits? - Is this proposed treaty necessary considering the defences that are available to states to defend themselves against Covid-related claims?
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Legitimate expectations is the most controversial concept in the substantive law of international investment law. For many, it’s an unruly horse that investors ride to (undeserved) compensation. Working from this foundation, a doctrinal innovation has been developed to tame it: the idea that the investor cannot have legitimate expectations of certain performance by the state if it foresees that the state will probably not so perform. In this video, Dr. Martin Jarrett, Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law, argues that this idea is doctrinally incorrect. But this doesn’t mean that the investor’s lack of due diligence is irrelevant to the state’s international responsibility. It is rather relevant via another concept, contributory fault. In the conclusion, he demonstrates how it assumes this relevance.
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Could Indigenous Australians, who were not Australian citizens, be considered ‘aliens’ under the Australian Constitution? In a 4 – 3 decision, it decided that they could not. In this video, Dr. Martin Jarrett, Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law, reviews the reasoning of the majority judges and the minority judges.
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The bad news: there is a phobia among arbitral tribunals for investor-state arbitrations – the ‘phobia of judicial expropriation’. Now, to the good news: there is a cure for this phobia. That cure involves a two-step treatment regime. The first step is dropping the requirement that any taking of an investment by a domestic court must also involve some kind of serious procedural illegality before it can be labelled expropriatory. The second step is fully appreciating the role of causation in making any determination of judicial expropriation. This video explains those steps. The payoff is the realisation that the only thing we have to fear about judicial expropriation is the fear of it.
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Should the Energy Charter Treaty (‘ECT’) be modernised or terminated? As the contracting parties head into another round of negotiations for the modernisation process, numerous calls have been made in the media for termination. A key premise in the argument leading to that conclusion posits that the ECT will obstruct this energy transition. The reason for this obstruction is that as contracting parties implement the policies needed for the energy transition, they will have to pay out compensation under the ECT to investors in carbon-energy production. In this video, I critically examine the idea that governments will necessarily accrue legal responsibility under the ECT for transiting to clean-energy economies.
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No other investment treaty compares to the Energy Charter Treaty (the ‘ECT’). It has 53 contracting parties, more than any other investment treaty. Further, it has given rise to more than 130 investor-state arbitrations, again, more than any other investment treaty. Accordingly, when the contracting parties announced in the Bucharest Declaration that the ECT had to be modernised in light of new realities, it was a significant moment in the history of international investment law. This presentation examines this modernisation process, specifically focusing on the legal questions that will come up in this process. It begins with the legal mechanics for amending the ECT. The focus then shifts to the 'EU Text Proposal for the Modernisation of the Energy Charter Treaty’ (the ‘Draft Proposal’). First, it looks at the legal validity of the European Commission's attempts to harden the obligations of the Paris Agreement. Second, it compares the concept of legitimate expectations, as outlined in the Draft Proposal, to the jurisprudence on legitimate expectations that has emerged from the many recent ECT investor-Spain arbitrations. Third, the idea that withdrawing a subsidy to an investor by order of a 'competent authority’ could be a defence to a breach of a state's obligations vis-a-vis the treatment of investments is critiqued. It is argued that this idea is incompatible with a basic principle from the law on international responsibility, namely that domestic law should have no legally determinative role in answering the question of a state's international responsibility.
Max Planck Institute for Comparative Public Law and International Law
Video of PresentationAfrican Union, Addis Ababa
LinkUniversity of Stockholm
LinkMax Planck Institute for Comparative Public Law and International Law
Max Planck Institute for Comparative Public Law and International Law
Video of PresentationUniversity of Catania (online event)
ProgrammeMax Planck Institute for Comparative Public Law and International Law
Video of PresentationMax Planck Institute for Comparative Public Law and International Law, Heidelberg, Germany
Video of PresentationMax Planck Institute for Comparative Public Law and International Law, Heidelberg, Germany
Video of PresentationMax Planck Institute for Comparative Public Law and International Law, Heidelberg, Germany
Video of PresentationSouth Asian University, New Delhi, India
Department of Foreign Affairs and Trade, Canberra, Australia
Catholic University of Portugal, Lisbon, Portugal
University of Minho, Braga, Portugal
ProgrammeThe Silk Road Institute for International and Comparative Law, Xi'an Jiaotong University, China
ProgrammeNational and Kapodistrian University of Athens, Athens, Greece
PluriCourts, Oslo, Norway
ProgrammeStrathmore University, Nairobi, Kenya
European University Institute, Florence, Italy
Eötvös Loránd University of Budapest, Budapest, Hungary
McGill University, Montreal, Canada
University of New South Wales, Sydney, Australia
University of Sydney, Sydney, Australia
University of Canterbury, Christchurch, New Zealand
University of Dundee, Dundee, United Kingdom
University of Vienna, Vienna, Austria
Hungarian Academy of Sciences, Szeged, Hungary
Masaryk University, Brno, Czechia
University of Sydney, Sydney, Australia
Kobe University, Kobe, Japan
University of Luxembourg, Luxembourg City, Luxembourg
Ludwig Maximilian University of Munich, Munich, Germany
University of Eastern Finland, Joensuu, Finland
Exploratory Workshop, Evidence-Based Policy Making Around the African Continental Free Trade Area: Bridging the Gap between Research and Practice (link), , Deutsche Gesellschaft für Internationale Zusammenarbeit und Deutsches Institut für Entwicklungspolitik (online event), 29.03.2021 - 30.11.2021
40th Session, UNCITRAL Working Group III: Investor-State Dispute Settlement Reform Report of the Working Group, Vienna International Centre (online event), 08.02.2021 - 12.02.2021
39th Session, UNCITRAL Working Group III: Investor-State Dispute Settlement Reform Report of the Working Group, Vienna International Centre / Online Event, 05.10.2020 - 09.10.2020
Resumed 38th Session, UNCITRAL Working Group III: Investor-State Dispute Settlement Reform, Vienna International Centre, 20.01.2020 - 24.01.2020
Member, Academic Forum on Investor-State Dispute Settlement
Member, European Society of International Law
Member, Society of International Economic Law
Roster Member, International Development Law Organization - Investment Support Programme for Least Developed Countries
Since June 2021: elected representative of the scientific staff at Max Planck Institute for Comparative Public Law and International Law
Peer-Reviewer for:
- Cambridge Law Journal
- Heidelberg Journal of International Law
- Journal of International Economic Law
- Journal of World Investment and Trade
- Yearbook of International Investment Law and Policy
Standing Up to Investor Misconduct (10 October 2019).
• Source: Radio Regenbogen (link to interview)
• Description: radio interview for the programme 'Campus-Report' on sanctioning investor misconduct under international law and the desirability of an international court for investor-state disputes.
'It was hard to look at their faces': MH17 victim's mother welcomes charges (20 June 2019).
• Source: Sydney Morning Herald (link to story)
• Description: advised journalist on the options for seeking to hold Russia to account for the downing of MH17 under international law.
@M_A_Jarrett
