The compatibility of ISDS clauses in intra-EU disputes with EU law - An analysis of the extent of application of the Achmea judgement on bilateral and multilateral investment treaties

Detta är en Uppsats för yrkesexamina på avancerad nivå från Lunds universitet/Juridiska institutionen; Lunds universitet/Juridiska fakulteten

Sammanfattning: Within the area of international investment law investor-state dispute settlement (ISDS) clauses are commonly used in order to provide investment protection. The ISDS mechanism can be described as a system under which an investor can arbitrate a dispute against a host state, based on an investment agreement concluded between the host state and the national state of the investor. As this system has been commonly used in bilateral investment treaties between EU Member States, the question of the compatibility of those provisions with EU law emerged in the Achmea judgement. This provided the fundamental basis for the research questions in this thesis. The purpose of this thesis is to analyse the extent of the application of the Achmea judgement and the effects on the future of investment arbitration within the EU. In order to approach the applicable sources appropriately, the comparative methodology is applied. The perspective will be an internal EU perspective, compared with a public international perspective, thereby outlining the differences in the approach. Firstly, this thesis analyses the argumentation by the Court of Justice of the EU in the Achmea judgement. Thereby demonstrating the importance of the exclusive jurisdiction of the Court of Justice of the EU and the autonomy of the EU legal order. Secondly, the extent of the application of the Achmea judgement is researched particularly regarding the Energy Charter Treaty, as it demonstrates a treaty signed by the Member States and the EU individually. This presents the divergence of the opinions between the EU institutions and the international tribunals. Thirdly, this divergence is further analysed, which indicates the practical effects of the issue regarding the compatibility of the existence of the ISDS mechanism within the EU. The reliability on investment arbitration within the EU is at the core of the concluding analysis.

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