Introduction: Investment protection in intra-EU BITs and EU law

Abstract

Achmea judgment deepened the divide between the advocates of EU law and defenders of investment treaties that has been present at least since 2007. In the absence of intra-EU BITs Chapter 1 of this monograph presents why reaching a conclusive answer as to whether investors are better off finding procedural and substantive protection under the framework of EU law instead of intra-EU BITs is of extreme significance for the future of intra-EU investment policy. It defines three main objectives of the monograph, approach, and its structure. The objectives are: i) to analyse as to whether the legal regimes of intra-EU BITs and EU law provide for a different scope of substantive and procedural safeguards in the core guarantees present in most bilateral investment treaties, i.e. national treatment, most-favoured nation treatment, fair and equitable treatment, free transfer of funds, protection against expropriation, and the provision of an international dispute settlement mechanism (Chapters 2 to 7); 2) to evaluate how the removal of intra-EU BITs impacts investor decisions made in skill-intensive, labour-intensive, regulatory framework-dependent, and indirect and financial market-oriented investor interests (Chapter 8); and 3) to analyse whether a normative proposition of creation of an intra-EU investment court (the EUFIC) would overcome the gravest of concerns resulting from the Achmea judgment – the inability to resort to arbitration in intra-EU cases.