Vilčinskaitė, Solveiga

The study proposes a reimagination of the arm’s length standard, putting forward a series of integrated solutions, based on a combined systematic introduction of both rational business conducts and formula-based alternatives to the arm’s length praxis. This reimagination effort is necessary to tackle the main identified challenges to the different core elements of the arm’s length standard, i.e., rationale, results, compliance requirements, roles and coordination nature, which, as the study demonstrates, render the current arm’s length variant a random and inefficient standard, severely undermining the fulfilment of its roles. With a strong legal theory backbone, but a tax policy orientation, the study assesses both the time and space evolutions of the arm’s length standard, establishing, therefore, the content of and limits to the arm’s length core elements, based on which the proposed solutions are designed, respecting a feasibility framework of implementation, for short-term action.

Šio darbo tyrimo tikslas buvo nustatyti ar draudimas piktnaudžiauti teise yra reikšmingas teisės principas sutarčių teisėje. Nustatyta, kad nors sąžiningumo principas tapatinamas su draudimo piktnaudžiauti teise turiniu, tačiau tai yra atskiras principas. Draudimo piktnaudžiauti teise principas apima tuos atvejus, kai: veikiama prieš teisės tikslus, neteisingai naudojamasi teise, naudojantis teise nesiekiant sau naudos, o siekiant sukelti kitam asmeniui nepatogumus. Soft law šaltiniuose šis principas priskiriamas prie sąžiningumo principo turinio, tačiau tokiu būdu siekiama principų ekonomiško apibrėžtumo, o ne teisingesnio principų taikymo. Europos Sąjungos teisėje pripažįstamas draudimo piktnaudžiauti teise principas. Europos Sąjungos teisingumo teismo praktikoje randama pavyzdžių susijusių su draudimo piktnaudžiauti principo taikymu sutarčių teisėje. Užsienio praktikoje gausu skirtingo draudimo piktnaudžiauti teise principo taikymo. Dalis šalių draudimo piktnaudžiauti teise principą taiko tiesiogiai, kitos – pasitelkiant kitus institutus. Lietuvos Respublikos teismų praktikoje taip pat taikomas draudimo piktnaudžiauti teise principas, jis išskiriamas ir sutarčių teisėje.

The dissertation focuses on the problems of regulation of the concept of indirect expropriation in international law and how the interests of a foreign investors could be protected in case of in- direct expropriation. It seeks to assess the concept of indirect expropriation and identify the issues related to its application in practice. The dissertation also focuses on the development of protection against indirect expropriation in international treaties with the special emphasis on the policy and protection to investor granted by the international investment protection treaties by the Republic of Lithuania. Also, the research deals with the procedural questions related to the actual protection of investors’ rights in international investment law. One of the main problems which has emerged recently - what are the possible ways of settlement of State and investor disputes after the Achmea judgement in the EU. The uncertainties left after this judgment are assessed in this research. Finally, the practical issues related to indirect expropriation with regards to the situation of protection of investors in Crimea and patents of COVID vaccines are analysed in this dissertation.

The research represents the comprehensive study of the competence-competence principle in international commercial arbitration. The following are the primary and key objectives of the present research: 1-reviewing the peculiarities of the Competence-Competence principle; 2- Identify and explaining the gaps between international and local approaches; and show the potential of keeping the balance between the court and the arbitral tribunal. During the research, the concept is analyzed deeply. Fundamental problems regarding the theoretical and practical legislative standpoint are analyzed. The approaches used by France, Sweden, Georgia, and Lithuania are discussed. Specific interviews have been undertaken with Georgian and French field professionals. The research provides the analysis and the results of the particular survey conducted for the current study. The research contains the specific recommendations based on both, theoretical and practical information addressed in the present study. The major leitmotiv of the viewpoint is that uniform practices do not exist, and the applicability of the competence- competence principle is substantially dependent on the county-by-county approach. The existence of the uniform practices, both reflecting in binding and soft in nature, is the major solution, coupled with cooperation-communication between the actors and players in the international commercial arbitration vicinity.

The master thesis examines the impact of the COVID-19 Pandemic on investment protection regimes. The paper begins with an analysis of possible ways of protecting investors’ rights, such as claims against the State due to a violation of direct or indirect expropriation measures, fair and equitable treatment standards, full protection and security, national treatment, and most-favored-nation regimes. Further research provides a description of the State’s urgent measures adopted to limit the spread of Coronavirus and decrease the negative impact of the Pandemic. Examined the possible ways of protecting the State’s interest during unpredictable crisis events and strategy of protection from investor claims. The author examines the State’s regulatory policy and the measures to protect public health. Additionally, the thesis analyzes the main changes in procedural frameworks of Arbitral Proceedings and the necessity of applying the hybrid format during hearings.

This master thesis contains an introductory part, two main chapters with subchapters, conclusion and recommendations. This research has following objectives: firstly, to analyze the existing system for resolving investment disputes in the EU and identify the problems that led to the policy change; secondly, to systematize the information on the Investment court system proposed by the EU, highlight its main characteristics and implementation risks. The first section focuses on the concept of arbitration and the analysis of available dispute resolution options between the investor and the host country. The second section is analytical in nature, it is devoted to the Investor-to-State Dispute Settlement and the concept of a Investment Court System. In conclusion are presented the generalized results of the study, ISDS problems, causes and dangers are presented and the main distinguishing features of ICS are deduced. In the part «Recommendations» suggestions for improving the effectiveness of ISDS are included.

The legal research is devoted to the category of overriding mandatory rules in the European Union private international law and private international law of Ukraine. The research covered the essence and place of overriding mandatory rules in private international law by analyzing doctrinal approaches and collating with the category of public order and jus cogens, comparing the current state of the approaches to the legislative consolidation, discovering the fundamental features, analyzing the judicial practice of the European Union and Ukraine. The relevance of the research is justified by the interests of international agents, in particular, the course of Ukraine to join the EU, which directly affects the prospects for the unification of legislation in the field of overriding mandatory provisions in Ukraine. The research highlighted the optimal approach towards defining overriding mandatory provisions, demonstrated the vision of overriding mandatory rules in the EU, emphasized the importance of the ECJ for determining and applying overriding mandatory rules, and provided the recommendations in regard to the legislative consolidation of the category of overriding mandatory rules and related law enforcement practices in Ukraine.

This research is dedicated to the legal analysis of the energy disputes under the arbitration method of dispute resolution, involving both commercial and investment disputes. In addition, the overview of the general basics, such as standards of protections, fair and equitable treatment, legitimate expectations, which are the grounds of the possibility to commence the arbitration procedure. Except this, Master Thesis analysis Energy Charter Treaty, which is the unique multilateral agreement for energy sector and require a lot of attention from lawyers, arbitrators, judges, scholars etc. Under the rapid changes, the ECT, EU legislation is not the exception, and the issue about the incompatibility of the EU law, Intra-EU BITs, and even the ECT arose. The Master thesis overviews the current developments, arbitration awards on these topics, influence on the arbitration awards. In addition, there is the advice on establishment the specific arbitration court in the energy sector in order to avoid and prevent the contradictions in the final arbitration awards in the different cases under the same circumstances, as well as to create the same rules, and make the expectations predictable for parties.

This research represents the analysis of the transition of Internet service providers’ responsibilities in the sphere of online illegal material in the EU, by studying the balancing of fundamental rights of users in obligations to block and filter the content, by examining possible voluntary measures applied by ISP sand evaluating the upcoming regulations in this field of EU law. Furthermore, the drawbacks of current EU legislation regarding Internet censorship established by online providers were found and recommendations in eliminating this issue were stated.

The Master thesis researched a question of changes in the state’s regulatory framework as a basis of the frustration of legitimate expectations of investors, and consequently breach of FET. The research starts with the analysis of the nature of the FET standard, in order to find out its most appropriate interpretation and content. Demand for such a study is argued by lack of harmonized practice of interpretation of the FET standard, and therefore legitimate expectations, and absence of a single legal instrument that clearly defines its structural components and methodology of its interpretation. Further research of the author is concentrated on analysing the legitimate expectations of investor in relation to the predictable and stable framework of a state. Also, it was discovered that the most appropriate approach in determining whether changes of the state’s legal regulation would be declared as inconsistent with FET - balancing approach, including arbitrariness and proportionality analyses. Such an approach considers all relevant circumstances that influenced on the existence of legitimate and reasonable expectations of the investor and on the emergence of the necessity of the state to adopt certain measures.