Dr. Martin Jarrett

Senior Research Fellow

jarrett@mpil.de
Tel. +49 (6221) 482-633

Main Fields of Research:

General International Law (causation and role of domestic law); International Public Law (adjudication of investor-state disputes); and International Investment Law (investor misconduct and role of human rights)

Academic Career:

Employed Positions:

Since Jan. 2020: Senior Research Fellow MPIL

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)

Recent Publications

• Contributory Fault and Investor Misconduct in Investment Arbitration. Cambridge University Press, Cambridge, 2019, 182 p. Link
• “In Accordance with Host State Law”-Clauses, Inherent Legality, and Good Faith Requirements. In: Investment Protection Standards and the Rule of Law, August Reinisch, Stephan Schill (eds.). Oxford University Press, Oxford 2021, forthcoming.
• Extricating the Illegality Element from Judicial Expropriation. In: Global Values and International Trade Law, Csongor István Nagy (ed.). Routledge Publishing, New York 2021, forthcoming. Link
• Reprisals Against Illegal Investments. In: Investors' International Law, Jean Ho, Mavluda Sattorova (eds.). Hart Publishing, Oxford 2021, forthcoming. Link
• A New Energy Charter Treaty for the Clean Energy Future. In: The Global Energy Transition: Law, Policy and Economics for Energy in the 21st Century, Peter Cameron, Xiaoyi Mu, Volker Roeben (eds.). Hart Publishing, Oxford 2021, 217-240. Link
• Contributory Fault in Foreign Investment Law. In: Versicherungsmechanismen im Recht, Caspar Behme, Martin Fries, Johanna Stark (eds.). Mohr Siebeck, Tübingen 2016, 45-70. Link
• Legally Protecting Upstream Investments. In: University of Eastern Finland Energy Law Review 1, 50-79 (2016).
• Optional Dispute Resolution Clauses and Conditional Arbitration Agreements. In: Asian International Arbitration Journal 9, 39-53 (2013). Link

Blogposts

• Causation in International Investment Law. Jus Mundi - Wiki Notes, 2020. Link
• The Only Thing We Have to Fear About Judicial Expropriation is the Fear of It. OpinioJuris, 20 May 2020. Link
• Standing Up to Investor Misconduct. Fifteeneightyfour, 25 June 2020. Link

Working Papers

• Extricating the Illegality Requirement from Judicial Expropriation. MPIL Research Paper Series, 2020. Link
• Extracting Legal Causation from International Investment Law. MPIL Research Paper Series, 2020. Link

Media

The Covid-19 Pandemic and Investment-Treaty Arbitration (10 December 2020)

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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?

Legitimate Expectations in International Investment Law (4 November 2020)

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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.

Love / Thoms v. Commonwealth – Non-Citizen Indigenous Australians (2 November 2020)

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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.

Curing the Phobia of Judicial Expropriation (19 August 2020)

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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.

Energy Charter Treaty - Clean Energy Debate: Appreciating the Legal Complexities (8 July 2020)

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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.

The Modernisation of the Energy Charter Treaty (22 June 2020)

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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.

Presentations

Teaching

Participation in Conferences at Home and Abroad

Memberships

Miscellaneous