|Help

Arbitrability of Disputes Arising from Intra-EU BITs - ARIA - Vol. 25, Nos. 3-4, 2014

Author(s): 
Giovanni Zarra
Page Count: 
28 pages
Media Description: 
1 PDF Download
Published: 
April, 2015

PDF673.71 KB

$40.00
Description: 

Originally from American Review of International Arbitration - ARIA

Preview Page

 

I. INTRODUCTION AND SCOPE OF THE WORK
 
1.1 The issue of the jurisdiction1 of arbitral tribunals in international
investment disputes between an investor, whose home State is a Member of the
European Union (“EU”), and a State which is, in turn, also a Member of the EU, is
one of the most discussed topics in recent years by international investment law
scholars and practitioners. These disputes are initiated by investors on the basis of
so-called “Intra-EU BITs,” i.e. Bilateral Investment Treaties (“BITs”), stipulated
between two EU Member States prior to the accession in the EU of one of them.
As of today, pursuant to the expansion of the EU that occurred mainly in 2004 and
2007, there are more than 100 Intra-EU BITs in force, in particular between the
former States of the Union and the later-joining States from Eastern Europe.
Pursuant to these expansions, as it will be further explained below, the validity
and/or effectiveness of such treaties – and subsequently the arbitrability of the
disputes regulated by intra-EU BITs – have been questioned by the EU
Commission, by certain States, and on the part of scholars. The reasons for these
objections are based on arguments of both international and EU law. With regard
to the former, it has been argued that intra-EU BITs have become invalid or
inapplicable in light of the provisions on conflict of norms provided for in the
1969 Vienna Convention on the Law of Treaties (“VCLT”); concerning the latter
arguments, it has been stated that intra-EU BITs violate the principles of
supremacy of EU law, uniform interpretation of EU law, and non-discrimination
on the basis of nationality set forth in the EU treaties.
 
 
The debate on the matter is therefore still very much open2 and it will
probably be so, at least until the Court of Justice of the European Union (“CJEU”)