Originally from EU Law and International Investment Arbitration - IAI Series No. 11

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I. INTRODUCTION

1. In this report, I was asked to address the existence, or lack thereof, of systemic conflicts and incompatibilities between international investment law and arbitration, on the one hand, and EU law, on the other.  This is by no means a new issue.  On the contrary, it has preoccupied investors, EU Member States and the European Commission since at least the 2004 enlargement of the EU to the East.

2. Since the 2004 EU enlargement, several EU Member States and the European Commission have unsuccessfully tried to fend off the so-called “intra-EU” arbitrations by claiming not only that the substantive standards of investment protection are incompatible with the EU Treaties but, further, that the very idea of resorting to arbitration is incompatible with those Treaties.  This argument was partially successful in the recent judgment rendered by the European Court of Justice (ECJ) in Achmea.   The pending proceedings regarding the compatibility with EU law of the investor-State dispute settlement (ISDS) provision contained in the Comprehensive and Economic Trade Agreement (CETA) deal with the same issue on the extra-EU side.