Arbitration in intra-EU bilateral investment treaties
Produced in partnership with Ben Sanderson of DLA Piper
Arbitration in intra-EU bilateral investment treaties

The following Arbitration guidance note Produced in partnership with Ben Sanderson of DLA Piper provides comprehensive and up to date legal information covering:

  • Arbitration in intra-EU bilateral investment treaties
  • Intra-EU BITs—the key issues
  • The impact of Slovakia v Achmea
  • Declarations by EU Member States
  • Announcement of a plurilateral treaty
  • Timeline of the debate
  • Table one—intra-EU BITs
  • Table two—BITs between Member States and non-Member States
  • The future?

BREXIT: As of exit day (31 January 2020), the UK is no longer an EU Member State. However, in accordance with the Withdrawal Agreement, the UK has entered an implementation period, during which it continues to be subject to EU law. This has an impact on this Practice Note. For further guidance, see Practice Note: Brexit—arbitration law and practice in England and Wales and News Analysis: Brexit Bulletin—key updates, research tips and resources.

UNDER REVIEW: This Practice Note is under review in light of recent decisions concerning the relevance of the Achmea judgment in investment treaty arbitration proceedings.

The use by investors of intra-EU bilateral investment treaties (BITs) has been the source significant debate in recent years. The debate highlights a tension between the rights and protections established by EU law and those provided for in BITs between Member States. This Practice Note summarises the key developments in arbitration in this important area.

A number of European institutions, notably the European Commission and the European Court of Justice (ECJ), have taken the view that intra-EU BITs are incompatible with EU law. Unsurprisingly, these concerns have garnered little support in the arbitration world to date. However, following the Slovakia v Achmea, decision (discussed below) and the declarations made by all EU Member States in January 2019 regarding the termination of intra-EU BITs (discussed