Protection of foreign investment in an intra-EU context: Not One BIT?
12 December 2016
Universiteit Antwerpen, Stadscampus, De Tassiszaal, Hof Van Liere - Prinsstraat 13 - 2000 Antwerpen (route: UAntwerpen, Stadscampus
Gert Straetmans en Alexia Herwig
PhD defence Dominik Moskvan - Faculty of Law
Since the first bilateral investment treaty was signed in 1959, investment treaties have established themselves as well-known instruments of international economic law. In the light of disputed compatibility of intra-EU bilateral investment treaties with EU law, the present thesis aims to ascertain as to whether interests of foreign investors are equally protected under European law in comparison to investment treaties. The urgency to compare investment protection in BITs with investment safeguard in European law stems from the invoked, yet judicially unconfirmed incompatibility of BITs with EU law and the lack of legal certainty as to whether investors may still rely on guarantees contained in investment treaties.
With the exception of the expansive interpretation of fair and equitable treatment in investment treaty arbitration, EU law offers a functionally comparable alternative to substantive investment rights in investment treaties. However, should investors claim that a violation of their investor rights has occurred, they are likely to face rather lengthy, unspecialised, and potentially biased procedures in front of national courts that apply compensation schemes that are not equivalent to those found in investment treaties. As a result, the significance of the fact that EU law replicates the efficiency of the systems of recognition and enforcement pursuant to the Washington and the New York Conventions is diminished.
Consequently, whereas labour-intensive and regulatory framework-dependent investments could benefit from EU investment safeguards, skill-intensive risk-averse investors involved in costly sophisticated long-term projects may be particularly discouraged to structure their investment under EU law in comparison to investment treaties. Indirect and financial market-oriented investors, on the other hand, may adapt to both legal frameworks.
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