Martin Jarrett

Dr. iur., Senior Research Fellow

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

Main Fields of Research:

Academic Career:

Employed Positions:

Since Apr. 2021: Adjunct Lecturer, Ruprecht Karl University of Heidelberg (link)

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
  

• Link to Book Reviews for 'Contributory Fault and Investor Misconduct in Investment Arbitration'

• The Investment-Protection Status of Fossil Fuel–Related Investments in International Investment Law. In: Global Energy Transition and Investment Disputes, Rahmi Kopar, Volker Roeben (eds.). Hart Publishing, Oxford 2023, x-x, forthcoming.
  
• Rebalancing Asymmetries between Host States and Investors in Asian ISDS: An Exception for Systemic Corruption. In: Corruption and Illegality in Asian Investment Arbitration, Bruno Jetin, Luke Nottage, Nobu Teramura (eds.). Springer, Singapore 2023, x-x, forthcoming.
  
• 
  The International Validity of Domestic Law in Investment-Treaty Arbitration. In: Arbitration International 39(1), 1-18 (2023). doi: https://doi.org/10.1093/arbint/aiad001. Link to Text (Open Access)
  

[more]



Legality Requirements: Managing the Tension between the Domestic and the International Rule of Law. In: Investment Protection Standards and the Rule of Law, August Reinisch, Stephan Schill (eds.). Oxford University Press, Oxford 2023, 215-232. Link to Book




Implicit Legality Requirements in Investment-Treaty Arbitration: A Doctrinal Critique of the Current Jurisprudence. In: Czech Yearbook of International Law 13, 3-22 (2022). Link to Text (Open Access)




Book Review: Van Harten, Gus: The Trouble with Foreign Investor Protection, Oxford, 2020. In: Heidelberg Journal of International Law, 82(1), -x, 2022. Link to Text (Open Access)




Extracting Legal Causation from International Investment Law. In: Secondary Rules of Primary Importance: Attribution, Causality, Standard of Review and Evidentiary Rules in International Law, Gábor Kajtár, Başak Çalı, Marko Milanović (eds.). Oxford University Press, Oxford 2022, x-x.




Extricating the Illegality Element from Judicial Expropriation. In: Global Values and International Trade Law, Csongor István Nagy (ed.). Routledge Publishing, New York 2022, 163-185. Link




The Triumph of European Union Law in International Investment Law – The Phenomenon, the Problems, and the Solution. In: Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 81(4), 885-895 (2021). doi: https://doi.org/10.17104/0044-2348-2021-4-885. Open Access




Investor Accountability: Indirect Actions, Direct Actions by States, and Direct Actions by Individuals. In: Journal of International Dispute Settlement 13(2) (2022) (with Sergio Puig, Steven Ratner). Open Access




A New Frontier in International Investment Law: Adjudication of Host Citizen-Investor Disputes? In: Heidelberg Journal of International Law 81(4), 969-1001 (2021). doi: https://doi.org/10.17104/0044-2348-2021-4-969. Open Access




Contributory Fault and Investor Misconduct in Investment Arbitration. In: German Yearbook of International Law 62 (2019), 629-633 (2021). Link




Responding to Investor Misconduct: The Line between Lawful and Unlawful Responses and Apportionment in Cases of Unlawful Responses. In: Investors' International Law, Jean Ho, Mavluda Sattorova (eds.). Hart Publishing, Oxford 2021, 169-191. 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

• Germany’s Trusteeship over Gazprom Germania: A Brewing Expropriation Claim?. EJIL:Talk!, 2022 (with Sergio Puig, Steven Ratner). Link
  
• New Options for Investor Accountability in ISDS. EJIL:Talk!, 2021 (with Sergio Puig, Steven Ratner). Link
  
• 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

A Strategy for Defeating Objections to Jurisdiction Based on Investment-Establishment Illegality


You are the legal counsel for the investor an investment-treaty arbitration. The investor looks like it has a good claim. It also looks like the arbitral tribunal has jurisdiction to hear this claim, but your opposition surprises you: the investor has participated in corruption in the process of making its investment. The evidence is overwhelming. The case looks lost. Is there anything that you can do? In this video, I introduce a new strategy for defeating such jurisdictional objections, specifically using the doctrine of duress.


The Rise of Domestic Courts in International Investment Law


This video introduces a new research project: ‘The Rise of Domestic Courts in International Investment Law’. For more details on this research project, please use the following link: https://martin-jarrett.com/research-project-the-rise-of-domestic-courts-in-international-investment-law After detailing the background behind this research project, the main research question is introduced, which is: on account of the increasing involvement of domestic courts in investment-treaty disputes, how are they changing international investment law? This question is being tackled from multiple angles in the project.


The Zombification of the Energy Charter Treaty


Over the past few months, a great drama has been played out in respect of the Energy Charter Treaty. After the long process of the modernisation of this treaty was brought to an end with the conclusion of a final draft in June 2022, various European states signaled their intention to withdraw: first Poland, then the Netherlands, Spain, France, and Germany. Now the European Union, Slovenia, and Austria are now mulling the possibility of withdrawing. Despite the conclusion of the modernisation process, why are these states withdrawing? Put simply, they do not believe that the Energy Charter Treaty is compatible with the implementation of the policies that we will be needed to achieve the energy transition. Interestingly, however, withdrawing from the Energy Charter Treaty does not mean that the treaty no longer binds a withdrawing state. Rather, its provisions can still continue to apply to it. What this means is that by withdrawing from the treaty, contracting states are effectively trying to kill the Energy Charter Treaty, but even after this ‘death’, the Energy Charter Treaty continues to survive, hence ’the Zombification of the Energy Charter Treaty’. In this video, I investigate whether, in its ‘zombified state’, the Energy Charter Treaty still inhibits the energy transition, with particular reference to how things would have been if the withdrawing states had signed the modernised Energy Charter Treaty.


Protection-Status of Fossil Fuel–Based Investments under International Law


In late June 2022, important news broke on the international legal regime applicable to states’ treatment of energy-focused investments: the contracting states to the Energy Charter Treaty had reached an in-principle agreement to amend it. In diplomatic speak, this amendment sought to ‘modernise’ the Energy Charter Treaty, particularly in light of the challenge posed by climate change. One of the pivotal changes in this new modernised Energy Charter Treaty is the change to the definition of ‘investment’. The importance of this definition cannot be overstated. It defines exactly what investments receive protection-status under the Energy Charter Treaty. Accordingly, if fossil fuel–based investments are excluded from its scope, it means that they do not have protection-status under the Energy Charter Treaty, with the result that investors with such investments cannot sue states under this treaty. The European Union pushed for such an exclusion, but there was pushback from other contracting states. What emerged was a kind of compromise: states could opt out of protection for fossil fuel–based investments. Does this political solution stand up legally, however? This video investigates this question. It identifies a number of issues that the drafters will have to address as they go about drafting up this compromise.


A Doctrine of Precedent for ISDS 2.0?


The reform process for ISDS at UNCITRAL is reaching its climax. Within the next few years, a treaty for ISDS 2.0 should emerge from this process. It is expected that one feature of ISDS 2.0 will be an appellate mechanism. It would hopefully address one of the main issues that has plagued ISDS 1.0, specifically the disunity of adjudicator-made jurisprudence in international investment law. Given this role for the appellate mechanism, a question that has frequently arisen during the negotiations at UNCITRAL has been: should a doctrine of precedent be adopted into ISDS 2.0? In this video, I offer my preliminary thoughts on this question.


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The Adventures of the Anton v Spain Arbitral Award: Chapter 3?


In this video, I recount the adventures of the Antin v Spain arbitral award. And ‘adventures’ is the right word. While most arbitral awards are performed after their issuance, the arbitral award from Antin v Spain has been on a roller-coaster ride. The first section of that ride was the jurisprudence of the European Court of Justice that culminated in the decision of Moldova v Komstroy. In that case, the European Court of Justice effectively ruled that the investment-treaty arbitration that was Antin v Spain was illegal under European law. Enforcement of the arbitral award in the European Union is now impossible. Where could the arbitral award be enforced? One potential jurisdiction was Australia. And, indeed, Australian courts have enforced the arbitral award. But that action has provoked a response from the European Commission, which is now investigating whether payments to Antin under the Australian judgment would constitute (unlawful) European state aid. In a world where the European Commission does order Spain to retake the amount that it pays to Antin pursuant to the Australian judgment, does that amount to a good faith breach by Spain of the ICSID Convention? This is the question of the third chapter of this story and it is one that this presentation casts a light on.


The Djokovic-Australia Saga: Legal Issues Behind the Drama (20 Jan 2022)


It has been the news story of the year so far: the Djoković-Australia saga. There are many fascinating elements to this saga, from the vaccination issue to the sporting story, specifically whether Djoković could win his 21st grand slam at the Australian Open. But this saga was fundamentally a legal story. In this video Dr. Martin Jarrett, Senior Researcher at the Max Planck Institute for Comparative Public Law and International Law, gives a comprehensive account of the legal story. It focuses specifically on the difficult legal issues that the Djoković-Australia saga raised. After looking through the various legal proceedings, a provocative question is considered at the end: what does this saga show about the health of the rule of law in Australia?


The Legality Requirement in Legitimate Expectations in International Investment Law (14. Jan 2022)


No other legal concept in international investment law provokes controversy like legitimate expectations. When arbitral tribunals have to apply it, they have to engage in a delicate balancing act. On the one side, there is investors’ interest in a stable regulatory regime for their investment activities, while, on the other side, there is states’ interest in changing that regime to better fit to the changing circumstances in the society over which they govern. Because balancing these interests is such a difficult task, any new jurisprudence on legitimate expectations is always significant. This video reports on such new jurisprudence: the legality requirement in legitimate expectations in International investment law. In this video, Dr. Martin Jarrett, Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law, describes this new jurisprudence, doctrinally critiques it, and proposes alternative jurisprudence to take its place.


Investment-Treaty Arbitration after Achmea (19 November 2021)


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, Dr. Martin Jarrett, Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law, gives an overview of the legal issues that arose in international investment law post-Achmea and examines the responses to those issues.


European Union - China Comprehensive Agreement on Investment (17 May 2021)


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.


The Quiet Rise of the Investment Court System (18 February 2021)


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.


Interview on Euronews about China-EU Investment Agreement (5. Jan 2021)


In this video, Dr. Martin Jarrett, Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law, is interviewed on ‘Euronews Tonight’ (30 December 2020) on the China-EU Investment Agreement.


Link


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


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)


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)


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)


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)


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.


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


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.

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