Originally from Energy Dispute Resolution: Investment Protection, Transit and the Energy Charter Treaty

I. INTRODUCTION

The possible conflict between investment protection by way of bi- and multilateral treaties – of which the latter the Energy Charter Treaty is the only example in a European perspective – and EC law (now European Union Law) has become an issue in recent years. The possible conflict inherent between EU law and a system of treaty-based investment protection ultimately sanctioned by access to international arbitration – intra-EU as well as between Member States and third states – may very well gain additional impetus since the advent of the Lisbon Treaty in December 2009.

However, although from a treaty perspective innocuous enough, European law and institutions will have an impact in different respects on the operation of investment protection. This has already been felt on a number of occasions.

A. The future of investment arbitration in Europe 

Of particular interest for this paper is to discuss what implications the EC Treaty – and now the Lisbon Treaty – will have for the future protection of cross-border investment – intra-EU and between Member States and third states – as presently offered by ECT and bilateral investment treaties. The promise – or perhaps the spectre – that this perspective raises is not specific to the Energy Charter Treaty. It will indeed engage the investment chapter of all the bilateral investment treaties, not only on the intra-EU plane1 but also investment treaties between Member States and third countries (and here we are speaking about something like a thousand existing treaties).