The evolution of European policies on investment arbitration.

Kotelnikov, Andrey G.; Voropaev, Konstantin A.

Abstract

Over the last two decades, the European Commission radically altered its attitude towards investment arbitration and became its fierce opponent. This article considers the history of this change, attempts to fathom the pragmatic thinking of the European policy-makers, and considers its wisdom. The article analyses legal instruments that allowed the EU to implement the reform, examines their compliance with the Washington Convention 1965 and the Energy Charter Treaty and considers their practical effects on investment in Europe. It makes use of the historical and comparative legal methodology and occasionally relies on statistical data. The reasons behind the EU policies might have included the global backlash against the current system, the dissatisfaction with the Member States being targeted as respondents, the aspirations to move the Union towards a more centralised federation, and possibly the populist motives. Having started with the intra-EU BITs, the EU authorities are now leading the way of the global reform of ISDS with the idea of permanent tribunals bearing a strong resemblance to the state judiciary. Many remain sceptical, and the initial economic effects were unfavourable. A surprising aspect was the role the CJEU had to play. It delivered a decisive blow to the existing system in alignment with the Commission's policies, but without openly admitting the motives behind its decisions, and relying instead on the principle of autonomy of the EU law.

Citation

KOTELNIKOV, A.G. and VOROPAEV, K.A. 2019. The evolution of European policies on investment arbitration. Herald of the Euro-Asian law congress [online], 2019(1), pages 68-83. Available from: https://doi.org/10.34076/2619-0672-2019-1-68-83

• Journal Article Type: Article
• Acceptance Date: Aug 27, 2019
• Online Publication Date: Dec 31, 2019
• Publication Date: Dec 31, 2019
• Deposit Date: Jul 1, 2019
• Publicly Available Date: Dec 31, 2019
• Journal: Herald of the Euro-Asian Law Congress
• Print ISSN: 2619-0672
• Publisher: Ural State Law University
• Peer Reviewed: Peer Reviewed
• Volume: 2019
• Issue: 1
• Pages: 68-83
• DOI: https://doi.org/10.34076/2619-0672-2019-1-68-83
• Keywords: Bilateral investment treaties; Intra-EU investment arbitration; Investor-state dispute resolution; ICSID; Energy Charter Treaty; Judicial politics; Multilateral investment court
• Public URL: https://rgu-repository.worktribe.com/output/316838
• Contract Date: Jul 1, 2019