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The Day After: Alternatives to Intra-EU BITs

In: The Journal of World Investment & Trade
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Intra-EU bilateral investment treaties (BITs) are the dinosaurs in the multi-level legal system of the European Union (EU). They sit uneasily with EU law, yet they provide an important tool for foreign investors to manage political risk in some EU Member States. This paper suggests, that alternatives to intra-EU BITs should best be developed from existing functional equivalents in EU law, ie substantive standards of protection in EU law should be made more transparent by the way of a ‘restatement’ of the pertinent legal practice. On principle, foreign investors should make use of functioning domestic courts. Where such institutions lack quality, the EU and the EU Member States should work towards their improvement. Meanwhile, a ‘safety net’ should be provided for foreign investors in case domestic courts fail to dispense justice. This ‘safety net’ may take the form of a PCA-administered arbitral forum or that of a ‘Unified Investment Court’.

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