The Infringement Proceedings over Intra-EU Investment Treaties – An Analysis of the Case against Sweden

Swedish Institute for European Policy Studies (SIEPS) 4epa, 2016

12 Pages Posted: 21 Mar 2016  

Hannes Lenk

Göteborg University, Department of Law, Students

Love Rönnelid

Uppsala University, Faculty of Law, Students

Joel Dahlquist

Uppsala University, Faculty of Law, Students

Date Written: March 1, 2016

Abstract

On June 18, 2015, the European Commission initiated infringement proceedings against five Member States over the termination of intra-EU bilateral investment treaties (BITs). In spite of targeting selected agreements, the outcome of these proceedings is bound to have broader ramifications for all existing BITs currently in force between Member States. Engaging in an assessment of the Sweden-Romania BIT, it is of pivotal importance to determine whether the substantive or procedural protections provided for investors under the agreement are compatible with the internal market. Notably, investors from Member States that are not party to the Sweden-Romania BIT are excluded from its protection. In circumstances where these investors are in a similar situation to Romanian and Swedish investors the provisions of the BIT are likely to constitute a violation of the principle of non-discrimination. However, even though the termination of intra-EU BITs appears to be the only pragmatic solution, this cannot have retrospective effect or affect currently pending disputes. Whether or not termination can avoid the prolonging effects of sunset clauses, on the other hand, primarily depends on the view of the investor-state tribunal examining the issue in accordance with international law. However, in anticipation that Sweden decides to negotiate the termination of its BIT with Romania, it is imperative that sunset clauses are addressed explicitly.

Keywords: BIT, investment, European Union, external relations, foreign investment protection, non-discrimination, sunset clause, VCLT

Suggested Citation

Lenk, Hannes and Rönnelid, Love and Dahlquist, Joel, The Infringement Proceedings over Intra-EU Investment Treaties – An Analysis of the Case against Sweden (March 1, 2016). Swedish Institute for European Policy Studies (SIEPS) 4epa, 2016. Available at SSRN: https://ssrn.com/abstract=2749153

Hannes Lenk (Contact Author)

Göteborg University, Department of Law, Students ( email )

Viktoriagatan 30
Göteborg
Sweden

Love Rönnelid

Uppsala University, Faculty of Law, Students ( email )

Uppsala
Sweden

Joel Dahlquist

Uppsala University, Faculty of Law, Students ( email )

Uppsala
Sweden

Register to save articles to
your library

Register

Paper statistics

Downloads
134
rank
194,719
Abstract Views
409
PlumX