A European Perspective of Better Economic Integration without Treaty Arbitration

Abstract: For the last two decades, international investment arbitration has been the most effective and reliable mechanism utilised by investors as a shield under the international protection against excessive states’ intervention. Acknowledging the significance of preserving a safe environment for conducting investments as well as promoting foreign direct investment was the leading element in the process of concluding bilateral agreements between the Member States themselves and third countries. However, two problems have generated from the Member States’ exercised sovereignty and led to an increasing disruption in the relationship between the EU law and International law. On one side of the spectrum, investment tribunals refused to comply with the Commission’s assertion on observing the primacy of EU law, on the other end of the spectrum, EU law is regarding intra-EU BITs in general and investor-state arbitration in particular as contrary to the principles of the EU legal order. This contribution will examine the different norms used by investment tribunals to identify the nature of EU law. It will be argued that the status of EU law and how it is addressed in the investment agreements is the core element for understanding the interaction between the EU law and international law.