This article examines the potential consequences of the termination agreement recently signed by 23 EU Member States, which will soon terminate the existing intra- EU BIT S of the signatory Member States. The author concludes that the retroactive application of the termination agreement to disputes that have been initiated before this termination agreement enters into force is a serious violation of the Rule of Law. He also finds that the Facilitator procedure offered by the termination agreement is not a suitable tool to settle any ongoing intra- EU BIT disputes. In light of the significant shortcomings in the judicial legal systems of many EU Member States, the author calls for the adoption of an EU Investment Protection Regulation as well as the creation of a European Investment Court. Finally, despite the fact that the termination agreement is not intended to apply to intra- EU ECT disputes, the author expects that the fallout of the Achmea judgment will lead to substantial “reforms” of the ECT in due course. All these developments will inevitably lead to a lower standard of investment and investor protection within the EU.
This contribution examines the use of third-party submissions, such as amicus curiae submissions, in investment treaty arbitrations. The author shows that a surprisingly low number of amicus curiae submissions have been submitted so far and consequently have not resulted in any discernible impact on the jurisprudence of arbitral tribunals. At the same time, interventions by non-disputing treaty parties appear to be more effective. The author also discusses the ambiguous nature of amicus curiae submissions made by the European Commission, which – it is argued – are actually more akin to non-disputing party interventions. The author concludes that amicus curiae submissions could be better crafted and used more often to achieve greater impact. In addition, they could also be targeted more often against States and their failures in implementing their international environmental obligations.
With Opinion 1/17, the Court of Justice of the European Union (CJEU) approved the Investment Court System (ICS) contained in the Comprehensive Economic Trade Agreement (CETA) between the EU and Canada. This means that the EU can proceed with the ratification process of the investment protection part of CETA and the other free trade agreements it has concluded, and which contain a similar ICS. However, as the author illustrates, the approval of the ICS is conditioned by a complete isolation of EU law from international investment law. More specifically, the CJEU made clear that the ceta tribunals operate outside the EU legal order and have no power to interpret or apply EU law. At the same time, the CJEU highlighted the importance that the ceta Parties adopt supplemental rules for reducing the financial burden for access to the ICS for small and medium-sized enterprises (SMES). Additionally, the CJEU rejected the currently existing possibility that binding joint interpretations of the ceta Parties could have retroactive effect. In sum, the approval of the ICS by the CJEU enables the European Commission to continue to develop the multilateral investment court (MIC) within the uncitral Working Group iii as long as it follows the blueprint of the CETA ICS.