ESIL 2016 Workshop: Blerina Xheraj, “The Europeanisation of Investment Arbitration”

As mentioned earlier, EUglobal is hosting a workshop in the margins of the ESIL 2016 Conference in Riga. The papers for this workshop are posted here on the Interest Group blog. Today’s paper is written by Blerina Xheraj, and is entitled “The Europeanisation of Investment Arbitration“. Here is the abstract:

“The interrelation between EU and international investment law provoked a lot of contention during the past 10 years of international legal practice and scholarship. Many issues concerning this type of interaction remains unsettled (consider the recent announcement of the German Federal Court to refer the question to the CJEU for a preliminary ruling on intra-EU BITs). Still, the interplay between EU and investment law has effected both disciplines. This paper focuses on the role of the EU in the development of a ‘contemporary’ international investment law.

Since the EU acquired exclusive competence over FDI in December 2009, the EU became a global actor capable of reshaping the contours of international investment arbitration. As a result of the shift of competence from MS to the EU, the latter is now participating in investment treaty-making activity as the lead negotiator. The EU is also setting the new standards of the future international investment protection policy by adopting a ‘no lower protection’ policy. In addition, the EU is the dynamo of the most significant development in this area of law i.e., the creation of a two-tier international investment court. Moreover, the direct involvement of the EU in future investment dispute settlement will transform the regime of international responsibility applicable to investment dispute. It can be anticipated that under the new regime, the EU will become the finest guarantor for investment award creditors. To conclude, this paper shows the growing role of the EU in the investment arena and the overall ‘Europeanisation’ effect it will have on the practice of international investment arbitration.”

(Not available for download.)