European Law and Investment Treaties

Abstract

The interrelation between European law and investment treaties is becoming ever more important. Recently,international arbitral tribunals had to consider questions such as the validity of bilateral investment treaties (BITs) concluded or in force between EU Member States and the applicability of EC law in investment disputes. An Advocate General (AG) at the European Court of Justice (ECJ) opined that some of Austria’s and Sweden’s BITs would violate EC law. In the course of the most recent enlargement processes of the EU, the Commission demanded adjustments to BITs of the now new Member States. In addition, the Commission’s Minimum Platform on Investment (MPoI) encroaches upon Member States’ competence to conclude and amend their BITs. Both the Communities and the Member States are parties to the Energy Charter Treaty (ECT). Under this treaty, third state nationals may bring claims against both the Communities and the Member States, but whereas EU nationals are barred from bringing claims against the Communities, they may still bring claims against other Member States. While the fate of the Treaty of Lisbon is still unclear, its entry into force would have fundamental consequences for international investment law.