Until very recently, the term ‘EU Investment Law’ may have raised eyebrows among investment arbitration specialists. After all, one may only speak about either international investment law or EU law – or about the relationship between the two. On 19 July 2018, however, the European Commission issued its Communication to the European Parliament and the Council on the Protection of intra-EU investment in a clear attempt to set out the fundamentals of what it arguably envisages will become EU Investment Law.

The Communication comes four months after the Court of Justice of the EU (CJEU) rendered its landmark decision in the Achmea case, holding that EU law “must be interpreted as precluding a provision in an international investment agreement, such as Article 8” of the Netherlands-Slovakia bilateral investment treaty (BIT) on dispute resolution. The judgment held that because arbitral tribunals are not part of the “judicial system of the EU” they may not make a preliminary reference to the CJEU and the dispute resolution clause in question therefore “adversely” affected the autonomy of EU law. The Achmea judgment was widely interpreted as signalling the end of intra-EU investment arbitration based on BITs. Nevertheless, this ruling left some room for interpretation about its scope. There were still possibilities to distinguish other cases which related to BITs, other than the Netherlands-Slovakia BIT and, importantly, the judgment did not address the status of intra-EU claims based on the Energy Charter Treaty (ECT).

Oct-Dec 2018 issue

University of Nottingham