How 'New' EU Member States Should Approach Investment Claims by EU Investors

European Perspectives on Foreign Investment (EPFI), Berlin Occasional Law and Policy Papers 1/2013

8 Pages Posted: 9 Jul 2015

See all articles by Markus Burgstaller

Markus Burgstaller

Hogan Lovells

Steffen Hindelang

University of Southern Denmark - Department of Law; Humboldt-Universität zu Berlin Walter Hallstein Institute for European Constitutional Law

Ingolf Pernice

Humboldt University of Berlin

Date Written: November 16, 2013

Abstract

Investment arbitration against Central and Central‐Eastern EU Member States is on the rise. A significant number of these claims are brought by EU investors despite the fact that the European Commission has opined that international arbitral tribunals established under these intra‐EU BITs are not competent to decide these disputes with EU law relevance. In the wake of the Commission's relative inaction in respect of these intra‐EU BITs, Member States have been tasked with responding to this increasing number of claims. To date, however, they have had limited success. This brief policy paper outlines likely causes of this unsatisfactory situation in particular for new Member States. It identifies the structure of the legal arguments in these arbitrations and the lack of a comprehensive overall policy approach as likely main causes. To remedy these shortcomings, the paper suggests new Member States adopt a three pillar strategy, consisting of legal, policy and public awareness elements.

Keywords: EU, European Union, investment arbitration, ISDS, intra-EU BIT, BIT, bilateral investment treaty

Suggested Citation

Burgstaller, Markus and Hindelang, Steffen and Pernice, Ingolf, How 'New' EU Member States Should Approach Investment Claims by EU Investors (November 16, 2013). European Perspectives on Foreign Investment (EPFI), Berlin Occasional Law and Policy Papers 1/2013. Available at SSRN: https://ssrn.com/abstract=2525067

Markus Burgstaller

Hogan Lovells ( email )

555 13th Street, NW
Washington, DC 20004
United States

Steffen Hindelang (Contact Author)

University of Southern Denmark - Department of Law ( email )

Odense
Denmark

HOME PAGE: http://www.steffenhindelang.de

Humboldt-Universität zu Berlin Walter Hallstein Institute for European Constitutional Law ( email )

Unter den Linden 6
Berlin, D-10099
Germany

HOME PAGE: http://www.steffenhindelang.de

Ingolf Pernice

Humboldt University of Berlin ( email )

Unter den Linden 6
Berlin, AK Berlin 10099
Germany

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