EPFI - Berlin Occasional Law and Policy Papers
EPFI 1/2013 - How "new" EU Member States should approach investment claims by EU investors
Markus Burgstaller, Steffen Hindelang and Ingolf Pernice
Investment arbitration against Central and Central‐Eastern EU Member States is on the rise.
A significant number of these claims are brought by EU investors despite the fact that the
European Commission has opined that international arbitral tribunals established under
these intra‐EU BITs are not competent to decide these disputes with EU law relevance. In the
wake of the Commission's relative inaction in respect of these intra‐EU BITs, Member States
have been tasked with responding to this increasing number of claims. To date, however,
they have had limited success.
This brief policy paper outlines likely causes of this unsatisfactory situation in particular for
new Member States. It identifies the structure of the legal arguments in these arbitrations
and the lack of a comprehensive overall policy approach as likely main causes. To remedy
these shortcomings, the paper suggests new Member States adopt a three pillar strategy,
consisting of legal, policy and public awareness elements.
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