Arbitration Under Investment Protection Agreements between the EU and Non-Member States

Abstract

This paper analyzes the issues relating to investment protection agreements and arbitration in the light of the European Union’s newly acquired exclusive external competence in investment matters. It first considers the status of existing bilateral investment treaties between Member States and third States and the transitional regime established by Regulation (EU) No 1219/2012. It then goes on to examine the developing EU policy in respect of investment protection agreements, including the relations between the competence of the EU and that of Member States and Regulation No. 912/2014 on Financial Responsibility linked to Investor-State Dispute Settlement, which implies that the EU accepts the principle that future investor protection agreements concluded by the EU will provide for investor-state arbitration. It then goes on the examine the substantive and procedural rules in the investment chapters of the agreements that the EU is negotiating with Canada, Singapore and the United States and the results of the European Commission’s public consultation on such provisions. In light of the current criticism against investor state investment protection and Investor State Dispute Settlement, the article considers the possible future evolution of investor state protection and arbitration, and foresees that the current regime might face considerable changes.