Dispelling Myths – The European Court of Human Rights as a Viable Alternative to Investor-State Dispute Settlement in the European Union (Winner of the Essay Competition 2023)

Abstract

This contribution will focus on the question of whether the European Court of Human Rights (ECtHR, the Court) can serve as an alternative forum for investment treaty disputes arising under bilateral investment treaties concluded between two EU Member States (intra-EU bits). Some authors have examined the question whether the European Convention on Human Rights (ECHR) can serve as an alternative to investor state dispute settlement (ISDS) in general. Their conclusion was that despite the similarities between the international investment arbitration system and the investment protection offered by the ECHR, the latter can merely complement the ISDS system but not replace it. However, following the annihilation of the intra-EU bit s regime, the landscape of ISDS in Europe has changed drastically. Consequently, the time is ripe to revisit the question. The paper posits that, contrary to common beliefs about the deficiencies of the proceedings before the Court, in recent years, due to certain developments in procedure and jurisprudence, the Court is now a viable alternative to ISDS.