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

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