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

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The debates of the third day focused on the comparison between protection of foreign investors within the EU legal order and that offered to investors through international investment arbitration. After discussing whether it is even possible to compare these two fundamentally different mechanisms (1), the debate focused on the different philosophies underlying investment protection in these two frameworks: investment arbitration or national judges as recommended by the EU (2). Hence the participants discussed some structural problems generally evoked in the context of the current debate on the so-called backlash against investment arbitration, most notably accessibility to the system for small players (3) and transparency (4).  The participants also discussed issues of international responsibility in the EU framework (5).

All of these potential frictions between EU law and investment arbitration led to a discussion of the alternative to the latter proposed by the European Commission: the creation of an investment court (6).

I. COMPARISON BETWEEN INVESTMENT LAW AND EU LAW

The difficulties associated with comparing the two systems. The first comments following the Rapporteur’s presentation addressed the practical relevance of comparing investment law with EU law. It was argued that these are very different legal orders, and that it is therefore impossible to compare them. If EU law can be seen as one set of rules, international investment law is much more fragmented.