Rules of the Organization: Article 5 of the Vienna Convention on the Law of Treaties and the Relevance of European Union Law in Investment Arbitration

Abstract

Abstract As per several judgments of the Court of Justice of the European Union (CJEU), intra- EU investment arbitration is incompatible with the EU treaties. Therefore, and due to the primacy of the EU treaties over other international agreements concluded by the EU or its Member States, provisions in investment treaties conferring jurisdiction on investment tribunals are inapplicable in intra-EU cases. Nonetheless, investment tribunals continue to exercise jurisdiction in these cases, relying on an alleged dichotomy between EU law and international law, as well as on the general law of treaties as codified in the Vienna Convention on the Law of Treaties (VCLT). This paper counters tribunals’ arguments by introducing Article 5 VCLT, a norm collectively overlooked by investment tribunals. It shows how Article 5 VCLT translates relevant norms of EU law into an international legal concept – the ‘rules of the organization’ – and endows them with precedence over pertinent other VCLT provisions. In consequence, the position of investment tribunals is untenable not only under EU law, but also under international law.