The German Federal Court of Justice’s (Mis-) Use of Effet Utile to Override International Law in Mainstream v. Germany: Shaking the Foundations of the ICSID Convention?

This episode of the Völkerrechtliche Tagesthemen focuses on the jurisdiction of the German Federal Court of Justice (FCJ). On 27 July 2023, the FCJ affirmed its jurisdiction to rule on the admissibility of pending arbitration proceedings instituted under the Convention on Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention).

The FCJ invoked broad principles of European law to override the self-contained regime established by the ICSID Convention, which shields arbitrations from interference by domestic courts. This presentation will analyse fundamental questions the decision raises regarding the interplay between German civil procedure law, European law and public international law as well as its potential implications for the future of dispute resolution under the ICSID Convention with its 158 contracting states.