International Investment Protection within Europe: The EU’s Assertion of Control

ISBN-13: 9780367610647 / Angielski / Miękka / 2023 / 238 str.

Julien Berger

Opis

The steadily rising number of investor-State arbitration proceedings within the EU has triggered an extensive backlash and an increased questioning of the international investment law regime by different Member States as well as the EU Commission. This has resulted in the EU’s assertion of control over the intra-EU investment regime by promoting the termination of bilateral intra-EU investment treaties (intra-EU BITs) and by opposing the jurisdiction of arbitral tribunals in intra-EU investor-State arbitration proceedings. Against the backdrop of the landmark Achmea decision of the European Court of Justice, the book offers an in-depth analysis of the interplay of international investment law and the law of the European Union with regard to intra-EU investments, i.e. investments undertaken by an investor from one EU Member State within the territory of another EU Member State.

It specifically analyses the conflict between the two investment protection regimes applicable within the EU with a particular emphasis on the compatibility of the international legal instruments with the law of the European Union. The book thereby addresses the more general question of the relationship between EU law and international law and offers a conceptual framework of intra-European investment protection based on the analysis of all intra-EU BITs, the Energy Charter Treaty and EU law, as well as the arbitral practice in over 180 intra-EU investor-State arbitration proceedings.

Finally, the book develops possible solutions to reconcile the international legal standards of protection with the regionalized transnational law of the European Union.

Spis treści

Introduction  1. Setting the stage  I. European foreign direct investment  II. Development of international investment law – A European story  III. International investment law within the EU – Unexpected difficulties 2. Comparison of the investment protection regimes  I. Introduction  II. Scope of application  III. Substantive protection   IV Procedural protection   V. Conclusion   3. Conflict between intra-EU IIAs and EU law  I. Nature of EU law and its relationship to public international law  II. Alleged invalidity of intra-EU BITs   III. Incompatibility of intra-EU BITs with EU law  IV. Energy Charter Treaty and EU law   V. Result  4. What future for intra-EU investor protection?  I. Introduction  II. Termination of intra-EU BITs  III. Energy Charter Treaty  IV. Effects on EU member state courts and other domestic courts  V. Effects on investment arbitration proceedings  VI. Why a substitute might be necessary  VII. Possible substitutes  VIII. Assessment  General conclusion

O autorze

Julien Berger is a lawyer specialized in public international law and the law of the European Union. He completed his legal studies at the Humboldt-Universität zu Berlin and holds a Maître en Droit (Paris II – Panthéon-Assas), a Magister Juris (University of Oxford) as well as a PhD from the Universität Potsdam. Julien Berger is currently completing his legal clerkship at the Higher Regional Court of Berlin.