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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 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)

Recent Publications

  • Contributory Fault and Investor Misconduct in Investment Arbitration. Cambridge University Press, Cambridge, 2019, 182 p. Link
  • Implicit Legality Requirements in Investment-Treaty Arbitration: A Doctrinal Critique of the Current Jurisprudence. In: Czech Yearbook of International Law 13 (2022), forthcoming.
  • 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, forthcoming.
  • 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, forthcoming. 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 2022, forthcoming.
  • 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) (2021), forthcoming.
  • Investor Accountability: Indirect Actions, Direct Actions by States, and Direct Actions by Individuals. In: Journal of International Dispute Settlement 12 (2021) (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) (2021), forthcoming.
  • 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

  • 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

    Investment-Treaty Arbitration after Achmea (19 November 2021)

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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.

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

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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.

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

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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.

    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

15 Nov 2021

Investment-Treaty Arbitration after Achmea

Referentenbesprechung

Max Planck Institute for Comparative Public Law and International Law

Video of Presentation

29 Oct 2021

Competition Authorities and Foreign Investors: Managing the Litigation Risk under the AfCFTA Investment Protocol

10th Annual Conference of the African Society of International Law: Africa and International Trade Law

African Union, Addis Ababa

Link

08 Sep 2021

Overcoming the Assumption of Inevitable Bias of Judges on the Multilateral Investment Court: Time for a Doctrine of Precedent?

2021 ESIL International Economic Law Workshop

University of Stockholm

Link

12 Jul 2021

BayWa v Spain: A Jurisprudential Turn for the Worse

Referentenbesprechung

Max Planck Institute for Comparative Public Law and International Law

10 May 2021

European Union - China Comprehensive Agreement on Investment

Referentenbesprechung

Max Planck Institute for Comparative Public Law and International Law

Video of Presentation

15 Apr 2021

A New Frontier in International Investment Law: Adjudication of Host Citizen-Investor Disputes?

Tagung: Workshop of the ESIL International Economic Law Interest Group at the 2021 ESIL Catania Research Forum

University of Catania (online event)

Programme

08 Feb 2021

The Quiet Rise of the Investment Court System

Referentenbesprechung

Max Planck Institute for Comparative Public Law and International Law

Video of Presentation

30 Nov 2020

The Covid-19 Pandemic and Investment-Treaty Arbitration

Monday Meeting (MPIL)

Max Planck Institute for Comparative Public Law and International Law, Heidelberg, Germany

Video of Presentation

02 Nov 2020

The Status of Non-Citizen Indigenous Australians under The Australian Constitution

Monday Meeting (MPIL)

Max Planck Institute for Comparative Public Law and International Law, Heidelberg, Germany

Video of Presentation

22 Jun 2020

The Modernisation of the Energy Charter Treaty

Monday Meeting (MPIL)

Max Planck Institute for Comparative Public Law and International Law, Heidelberg, Germany

Video of Presentation

29 Feb 2020

The Challenges of Creating a Doctrine of Precedent for International Investment Law

Conference: South Asia in the Era of International Courts and Tribunals

South Asian University, New Delhi, India

29 Jan 2020

Overcoming the Challenges of Embedding Counterclaims into the Framework of International Investment Law

Workshop: Trade and Investment Law Timeout Session

Department of Foreign Affairs and Trade, Canberra, Australia

24 Oct 2019

Imposing Directive-Based Human Rights Obligations on Investors in International Investment Law

Conference: Socially Responsible Foreign Investment under International Law

Catholic University of Portugal, Lisbon, Portugal

19 Sep 2019

The Potential for Creating Consistent Investment Treaty Case Law via the Investment Tribunal System

Conference: ILA 2019 Regional Conference

University of Minho, Braga, Portugal

Programme

15 Sep 2019

Shaping the Multilateral Investment Court System into the Chinese Mould

Conference: Multilateral Reform of Investor-State Dispute Resolution: A Dialogue among Different Approaches

The Silk Road Institute for International and Comparative Law, Xi'an Jiaotong University, China

Programme

12 Sep 2019

Ensuring the Fairness of Investor Obligations

Workshop: 2019 ESIL International Business and Human Rights Workshop

National and Kapodistrian University of Athens, Athens, Greece

04 Sep 2019

Granting Standing to Natural Persons and Local Communities for Human Rights-Based Claims in Investment Arbitration

Workshop: The Legitimacy of International Investment Law and Arbitration in Protecting Human Rights

PluriCourts, Oslo, Norway

Programme

19 Jul 2019

The Validity of Investor Obligations in Investment Treaties

Conference: Fourth African International Economic Law Network Biennial Conference

Strathmore University, Nairobi, Kenya

20 Jun 2019

Fighting Corruption via Effective Transparency Obligations and Civil Participation in Investment Treaties

Workshop: Corruption Democracy and Human Rights: Exploring New Avenues in the Fight Against Corruption

European University Institute, Florence, Italy

16 May 2019

A Theory of Causation for International Investment Law

Workshop: ESIL-ELTE Law School Joint Workshop on 'Attribution, causality and evidentiary rules: Mere technicalities or the heart of the matter? Secondary rules of primary importance'.

Eötvös Loránd University of Budapest, Budapest, Hungary

Programme (264.1 KB)

07 May 2019

The Reactionary Police Powers Defence

Conference: 12th Annual McGill Graduate Law Conference

McGill University, Montreal, Canada

02 May 2019

The Eastern Shift in International Investment Law

Workshop: 2019 CIBEL Global Network Young Scholars Workshop

University of New South Wales, Sydney, Australia

22 Feb 2019

State Responsibility for the MH17 Incident

Conference: 2019 SCIL ‘Year in Review’

University of Sydney, Sydney, Australia

15 Feb 2019

Reimaging Expropriation in International Investment Law

Workshop: ANZSIL International Economic Law Interest Group 2019 Workshop

University of Canterbury, Christchurch, New Zealand

13 Dec 2018

The Defence of Mismanagement in International Investment Law

Presentation for the monthly academic staff meeting of the Centre for Energy, Petroleum and Mineral Law and Policy

University of Dundee, Dundee, United Kingdom

03 Dec 2018

“In Accordance with Host State Law”-Clauses, Inherent Legality, and Good Faith Requirements

Workshop: ‘Investment Protection Standards and the Rule of Law’ (an event organised by the International Law Association’s Committee ‘Rule of Law and International Investment Law’)

University of Vienna, Vienna, Austria

04 May 2018

Rethinking Expropriation of Intellectual Property Investments

Conference: Free Trade, Public Interest and Reality: New Generation Free Trade Agreements and National Regulatory Sovereignty

Hungarian Academy of Sciences, Szeged, Hungary

20 Apr 2018

Environmental Warning Labels: the Perspective from International Investment Law

Conference: Contemporary Challenges to International Law and Policy on Sustainable Development, Energy, Climate Change, Environmental Protection, Intellectual Property and Technology Transfer

Masaryk University, Brno, Czechia

08 Aug 2017

An Overview of Contributory Fault Defences in International Investment Law

Workshop dedicated to topic

University of Sydney, Sydney, Australia

29 Jan 2016

Intellectual Property Investments and the Locality Condition for Jurisdiction

Conference: 2nd Kobe Seminar on International Investment Law 2016

Kobe University, Kobe, Japan

13 Nov 2015

Causation, Expropriation, and Taxation

Conference: ‘Settlement of Tax Disputes Under International Law’

University of Luxembourg, Luxembourg City, Luxembourg

08 May 2015

Contributory Fault in Foreign Investment Law

Workshop: Versicherungsmechanismen im Recht

Ludwig Maximilian University of Munich, Munich, Germany

26 Feb 2015

Expropriation of Upstream Assets

Conference: Energy Transitions

University of Eastern Finland, Joensuu, Finland

Teaching

Apr. – July Semester 2020

Foundations of Anglo-American Law

Faculty of Law, University of Heidelberg, Germany , Wednesday, 14:00 – 16:00

Sep. - Dec. 2019

Foundations of Anglo-American Law, 13 hrs.

Faculty of Law and Economics, University of Mannheim University of Mannheim, Mannheim, Germany

Sep. - Dec. 2019

International Investment Law, 3 hrs.

Faculty of Law and Economics, University of Mannheim, Mannheim, Germany

Feb. 2019

The Regulation of Investor Misconduct in International Investment Law

Faculty of Law, University of Sydney, Sydney, Australia

Sep. - Dec. 2018

English Contract Law, 2 hrs.

Faculty of Law and Economics, University of Mannheim, Mannheim, Germany

Sep. - Dec. 2018

Foundations of Anglo-American Law, 18 hrs.

Faculty of Law and Economics, University of Mannheim, Mannheim, Germany

Sep. - Dec. 2018

International Investment Law, 2 hrs.

Faculty of Law and Economics, University of Mannheim, Mannheim, Germany

Feb. - Jun. 2018

Foundations of Anglo-American Law, 13 hrs.

Faculty of Law and Economics, University of Mannheim, Mannheim, Germany

Sep. - Dec. 2017

Foundations of Anglo-American Law, 11 hrs.

Faculty of Law and Economics, University of Mannheim, Mannheim, Germany

Sep. - Dec. 2017

International Investment Law, 2 hrs.

Faculty of Law and Economics, University of Mannheim, Mannheim, Germany

Feb. - Jun. 2017

Foundations of Anglo-American Law, 14 hrs.

Faculty of Law and Economics, University of Mannheim, Mannheim, Germany

Sep. - Dec. 2016

Foundations of Anglo-American Law, 18 hrs.

Faculty of Law and Economics, University of Mannheim, Mannheim, Germany

Feb. - Jun. 2016

Foundations of Anglo-American Law, 14 hrs.

Faculty of Law and Economics, University of Mannheim, Mannheim, Germany

Sep. - Dec. 2015

Foundations of Anglo-American Law, 18 hrs.

Faculty of Law and Economics, University of Mannheim, Mannheim, Germany

Feb. - Jun. 2015

Foundations of Anglo-American Law, 18 hrs.

Faculty of Law and Economics, University of Mannheim, Mannheim, Germany

Sep. - Dec. 2014

Foundations of Anglo-American Law, 18 hrs.

Faculty of Law and Economics, University of Mannheim, Mannheim, Germany

Feb. - Jun. 2014

International Commercial Arbitration, 2 hrs.

Faculty of Law and Economics, University of Mannheim, Mannheim, Germany

Feb. - Jun. 2014

Law of Upstream Petroleum and Natural Gas, 2 hrs.

Faculty of Law and Economics, University of Mannheim, Mannheim, Germany

Nov. 2013

Foundations of Anglo-American Law

The School of Humanities, Social Sciences and Economics, International Hellenic University, Thessaloniki, Greece

Sep. - Dec. 2013

International Commercial Arbitration, 2 hrs.

Faculty of Law and Economics, University of Mannheim, Mannheim, Germany

Feb. - Jun. 2013

International Commercial Arbitration, 2 hrs.

Faculty of Law and Economics, University of Mannheim, Mannheim, Germany

Participation in Conferences at Home and Abroad

Exploratory WorkshopEvidence-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 SessionUNCITRAL 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 SessionUNCITRAL 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

Memberships

Miscellaneous

Administrative Duties

Since June 2021: elected representative of the scientific staff at Max Planck Institute for Comparative Public Law and International Law

Peer-Review Activities

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​​​​​​​


Research Featuring in Mass Media:

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.


Twitter:

 @M_A_Jarrett