The EU as an actor shaping the future of ISDS : unveiling the interplay between the clash of two autonomies and the reform of investor-State arbitration

Abstract

This thesis examines the manifestations of the clash between two competing regimes: EU law, on the one hand, and international (in particular, investor-State) arbitration on the other. This examination (approached through the lens of the respective contradicting claims of autonomy) reveals the interrelation between this clash and the current initiatives to reform ISDS. The first part of this thesis is devoted to the EU interference with international arbitration at the intra-EU level. It maps out the intraEU BITs controversy focusing, first, on the general issue of compatibility of intra-EU ISDS with EU law in the aftermath of the Achmea judgment and, second, on the specific issue of the intra-EU face of the ECT. The future of enforcement of investment arbitral awards in the EU emerges as the lynchpin of the controversy. In the second part, the focus shifts to the developments at the extra-EU level. The thesis reflects on the EU competence on FDI and underscores the decisive way in which the EU has shaped its policy towards ISDS. With the contours of the competence in mind, and after reflecting on the main critiques against investor-State arbitration (as they are mirrored in the EU-led initiatives), the proposal for the establishment of an investment court system (bilateral or multilateral) is discussed in detail. The thesis explores the internal questions of compatibility with EU law (Opinion 1/17) and also discusses the (de-)merits of a court solution as ‘the’ corporate governance of investorstate disputes in the future.