The Impact of EU Law on Dispute Resolution in International Investment and Trade Agreements

Abstract

The resolution of international investment disputes between investors and States through arbitration has been an established feature of public international law (PIL) for many decades. As is well known, Bilateral Investment Treaties (BITs) between States provide, in essence, that investors in one State party are granted certain rights, such as fair and equitable treatment and protection against unlawful expropriation, in the other State party.1 BITs generally provide a mechanism for investor to state dispute settlement (ISDS) which is by means of an arbitration tribuna. However, this method of dispute resolution has come into conflict with another legal system, namely the European Union (EU) legal system. In this chapter the general relationship between the EU and PIL is analysed first before looking at the case law of the Court of Justice of the European Union (CJEU) on BITs between EU Member States (‘intra-EU BITs’) and on the Energy Charter Treaty (ECT) and subsequent developments arising from that case law.