The relationship of EU law and bilateral investment treaties

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1 The relationship of EU law and bilateral investment treaties The possible enforcement implications of intra-eu ICSID awards in conflict with EU law Tahmina Sahibli Autumn 2015 Master Thesis, 30 HE Credits Master of Laws, 270 HE Credits Supervisor: Professor Pär Hallström

2 Table of contents List of Abbreviations Introduction Purpose Materials and Methodology Delimitations Structure Introduction to investment law Introduction to Investment Treaties Investment Arbitral Institutions Introduction to ICSID Convention Binding force, Recognition and Enforcement of ICSID awards Investment Treaty Conflicts and European Union Law The Common Commercial Policy of the EU The New Investment Powers of the EU under the Lisbon Treaty EU s Internal Relationship to intra-eu BITs The MOX Plant Case The Arbitral Tribunals on intra-eu BITs Eastern Sugar v. Czech Republic Conclusions on Eastern Sugar Eureko v. Slovakia Conclusions on Eureko v. Slovakia Electrabel Conclusions on Electrabel Possible Implications of intra-eu BITs Micula et. al. v. Romania Background Amicus Curiae of the European Commission The Award Developments after the issuing of the Award The complexity of the Award Analysis EU Law perspective

3 5.1.1 Primacy and Supremacy of EU Law The Exclusive Competence of the CJEU Public International Law perspective Article 59 VCLT Article 30 VCLT Micula Enforcement of the Award Concluding remarks Bibliography Official documents of the EU Official documents of Sweden Bilateral Investment Treaties Table of case-law Literature Other sources

4 List of Abbreviations BIT Bilateral Investment Treaty CCP Common Commercial Policy CJEU Court of Justice of the European Union ECT Energy Charter Treaty EU European Union FDI Foreign Direct Investment FET Fair and Equitable Treatment ICSID International Centre for Settlement of Investment Disputes ICSID Convention Convention on the Settlement of Investment disputes between States and Nationals of Other States 1965 ISDS Investor-state dispute settlement PCA Permanent Court of Arbitration SCC Stockholm Chamber of Commerce TFEU Treaty on the Functioning of the European Union UN United Nations UNCITRAL United Nations Commission on International Trade Law UNCITRAL Arbitration Rules United Nations Commission on International Law Arbitration Rules VCLT Vienna Convention on the Law of treaties

5 1 Introduction Investment arbitrations have become more complicated lately where internal bilateral investment treaties (BITs) between Member States of the European Union (EU) have created questions about the relationship of investment treaties and EU treaties. The topic is hotly debated in academic literature as well within the EU. The European Commission (Commission or EU Commission) has questioned the BITs concluded between EU Member States (intra-eu BITs) and their compatibility with EU law. In particular the provision on investor-state arbitration, enabling investors from Member States party to such BITs to bring the host state, also party to the BIT, before an arbitral tribunal, is a subject of discussion. With the newly acquired competence of the EU in the field of Foreign Direct Investment (FDI), new problems have arisen with regard to intra-eu BITs, some of which I will discuss in this thesis. The fundamental principles of EU law, such as the principles of primacy and supremacy are in conflict with the requirement of unconditional enforcement of International Centre for Settlement of Investment Disputes (ICSID) arbitral awards. 1 EU Member States, who are bound by their obligations under EU treaties, are also bound by their international obligations they have acquired by the concluding BITs amongst themselves. The Commission sees this development as undesirable and has started to require its Member States to terminate their intra-eu BITs, one of them is Sweden. 2 The actions of the EU is triggered by the Micula 3 award according to which Romania has to pay compensation to Swedish investors for breach of the Sweden-Romania BIT, a compensation, if paid, would constitute illegal state aid under EU law. The Commission has prevented Romania from executing the award, even though the Convention on the Settlement of Investment Disputes between States and Nationals of other States (ICSID Convention) that the award is based on and the parties are bound by requires immediate and unconditional enforcement of the award. Romania is bound by both legal orders, why regardless of which actions Romania would take, it would either breach its EU law obligations or its international ones. Thus, the question of the relationship of intra-eu BITs and EU law still remains unanswered. 1 See infra section 2. 2 See infra section See infra section

6 1.1 Purpose The subject of this thesis is to analyse the possible incompatibilities of intra-eu BITs with EU law, both out of an EU perspective, based on EU law and the Commission s view in the issue, and from an international investment law perspective based on public international law. After an examination of the relationship between intra-eu BITs and EU law, I will discuss the circumstances in the Micula case and the possible implications of enforcement of awards that are in conflict with EU law. Thus I will: - Present and discuss the relationship between EU law and intra-eu BITs and the possible incompatibilities of the treaties, out of an EU and public international law perspective; - Analyse with basis on the Micula award, the possible implications of enforcement of intra-eu ICSID awards that are to be unconditionally and immediately enforced, but are in conflict with EU law, and how the conflict between the treaties could be solved; and - Discuss the possible future of intra-eu BITs. 1.2 Materials and Methodology With regard to the aim of this thesis I have applied a de lege lata method, i.e. legal dogmatics which is the systematization, description, interpretation and analysis of existing law with the aim of solving concrete legal problems. 4 I have therefore executed my legal research by examining the actual wording or text of a legal text, paragraph of a code or statue. Thereafter, I have tried to find support primarily in decisions by courts and tribunals in order to clarify what the relevant provisions stand for and the intent behind them. 5 Furthermore, I have used legal literature to clarify existing law and more importantly, bring different points-of view and arguments of how to interpret and analyse other law-sources. 6 I have been careful with choosing legal literature by authors who are acknowledged and known for their expertise within international investment law and EU law. With regard to the EU part of the thesis, focus will be on the Treaty on the Functioning of the European Union (TFEU), since the EU treaties constitute primary law within the EU, which 4 Lomio, Wilson and Spang-Hanssen, 2011, p Lomio, Wilson and Spang-Hanssen, 2011, p Lomio, Wilson and Spang-Hanssen, 2011, p

7 has the highest place in the hierarchy of norms, meaning that they are binding upon the EU and its Member States, who must comply with them. Primary law, because of its character, cannot be questioned. 7 In principle, the same can be said with regard to the case law of the Court of Justice of the European Union (CJEU), since contrary to Scandinavian legal system, the EU legal order has a more Common-law approach. A big part of the EU law is unwritten and created by the CJEU case law. The factual role of the CJEU is therefore not only to interpret and apply EU law but also to develop EU law. Many times the EU regulations can be vague why the CJEU s case law is important in applying the provisions. 8 In other words, CJEU s case law is of utmost importance for deciding the hierarchy and contents of norms within the EU legal order, why I will to a large extent refer to and apply CJEU case law in this thesis. The major example of the importance of the Court is the fact that the Court has through its case law created the principle of direct effect, i.e. an obligation to Member States to apply EU law to its fullest within their national authorities and respect the rights given by EU law to their nationals, and the principle of the primacy of EU law, meaning that Member States must set aside their conflicting national provisions and apply EU law. 9 These principles established will also be applied in the thesis, as they have become some of the defining characteristics of EU law and are binding upon the Member States of the EU. As the reader will notice, the thesis will present the Commission s standpoint and arguments quite broadly throughout the thesis. The Commission is an independent institution from national governments, which represents the European perspective and has exclusive competence to initiate legislation. It has also a shared competence with the courts of the EU to enforce EU law. 10 With basis on this, and the Commission s competence within the FDI, I have given space for the Commission s view with the aim of presenting the EU view of point. Furthermore, also Opinions have been used even though they do not confer rights or obligations, as their purpose it to give guidance on the interpretation of EU law Hettne and Eriksson, 2011, p Hettne and Eriksson, 2011, p. 40 & Lomio, Wilson and Spang-Hanssen, 2011, p Lomio, Wilson and Spang-Hanssen, 2011, p Fact Sheets on the European Union, 2015, Accessed

8 As to the public international law part of the thesis, I will primarily focus on the Vienna Convention on the Law of Treaties (VCLT), which, according to its Article 1, is applicable to treaties concluded between states and governs their interpretation. The relationship of the intra-eu BIT and EU treaties is that of successive treaties in public international law. Consequently, in case of conflicting treaties concluded between states, the Convention s rules of conflict between international treaties apply. 12 There is differing opinion on this regard in the literature whether EU law and its treaties are to be treated and considered as international treaties. I have chosen not to discuss this in my thesis but in accordance with international tribunals, considered EU treaties as international treaties in the meaning of the VCLT. Even though Romania has not ratified the VCLT, both Romania and Sweden agreed upon in Micula that the Convention gives expression to the customary law within the field of interpretation of treaties. 13 Therefore I will examine the VCLT, as the treaties and customary law are considered to be the most important law sources in public international law. 14 Similar to the case of EU law, I will use the case law of a variety of arbitral tribunals in order to clarify the applicable provisions of the VCLT and find support in how the tribunals have interpreted and applied them. This is in accordance with my legal method of legal dogmatics, where case law is used to bring clarity to existing laws. 1.3 Delimitations As written above, the reader will be introduced to investment law and treaties, but the focus will remain on intra-eu BITs. The thesis will briefly touch upon extra-eu BITs in order to clarify EU s new competence within FDI and to compare in few points extra-eu BITs with intra-eu BITs. Otherwise, the thesis will not be discussing extra-eu BITs. The reason to this is because it is not within the purpose of this thesis and the frames of the highlighted problems and questions. Naturally, only situations where there are conflicts between intra-eu BITs and EU law, that puts conflicting obligations on the same state, will be discussed. The thesis will focus on investment arbitrations commenced under the ICSID Convention, and such awards relationship to the EU law. However, also awards from other institutions will be referred to, mainly in order to examine how different tribunal s have discussed and interpreted EU law and their possible impact on intra-eu BITs. The enforcement and recognition of such 12 Hindelang, 2012, p Dahlquist, 2014/15, p. 189, footnote Lomio, Wilson and Spang-Hanssen, 2011, p

9 awards will not be discussed, since all BIT arbitration awards go under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention), except for the those commenced under ICSID Convention and its Arbitration Rules. 15 Therefore the legal system for the recognition and enforcement of non- ICSID awards is not within the interest of fulfilling the purpose of the award. Thus, the ICSID Convention and its rules for recognition and enforcement will remain the focus of the thesis. Lastly, EU state aid law will not be addressed, since it is not within the frames of this thesis to examine if the Micula award is in accordance with EU state aid law and whether or not it should be enforced for that reason. The subject of the thesis would be broader if I would attempt to answer that question, why I have left out the details of EU state aid regulation. 1.4 Structure Firstly, I will introduce the reader to the subject in the first chapter and give the reader a general overview of investment law. Moreover, I will present the ICSID Convention and some its fundamental provisions that are relevant for the object of the thesis. I will move on to present EU law and its widened competence in the area of FDI and introduce the reader to the EU s internal relationship to intra-eu BITs. Furthermore I will present three arbitral awards commenced between two EU Member States, the Commission s point of view and the reasoning of the members of the tribunals. I will continue by presenting the Micula award, the complexity of the questions arisen therein and the developments since the award was rendered. I will discuss both the Commission s and the tribunals arguments in the awards presented and apply them to the Micula award in an attempt to clarify the relationship of intra-eu BITs and EU law, and which implications a conflict between the two legal orders can have on the enforcement stage of an arbitral award. Finally, I will conclude by discussing the future of intra-eu BITs. 15 Born, 2012, p

10 2 Introduction to investment law 2.1 Introduction to Investment Treaties Traditionally, any disputes between a foreign investor and a host state has been regulated through public international law, where the investor depended on their own governments support 16 This has however changed the past years. Through the existing of approximately 3000 investment treaties, most of them bilateral, the investors can anticipate what level of protection that is offered in the host states where they have interest of investing. The BITs are concluded and binding between two Contracting States and most of the BITs share common structure and substance. 17 Some of their elementary characteristics are protection against discrimination, unfair and inequitable treatment, and expropriation without compensation. 18 Interestingly, the BITs regulate the obligations of the states and do not, normally, impose any obligations on investors. Most BITs contain dispute resolution provisions in case a state is suspected for breaching the BIT. The provision contains the host states consent to an investor from the other Contracting Party to resolve the dispute by means of investment arbitration without exhausting any local remedies in beforehand. 19 In other words, the BITs contain a binding consent to arbitration of investment disputes from the two High Contracting Parties, even though there is no contractual relation between the investor and the sovereign state, except for the eventual investor contract. Through the possibility of investment arbitration, the BIT enables the investors to avoid national courts of the host states and the sensitive question of their objectivity. There are exceptions, however, in case of disputes about taxation and government procurement, where the investor has limited chance of bringing the host state before an arbitral tribunal Investment Arbitral Institutions There are a number of different arbitration institutions to choose amongst. The institution that is most commonly used is undoubtedly ICSID, which is a part of the World Bank Group 16 Dalhquist, 2014/15, p Born, 2012, p Bilateral Investment Treaties- how they work, Kommerskollegium [National Board of Trade], p.2. Available at: Accessed (Kommerskollegium). 19 Strik, 2014, p Born, 2012, p

11 based in Washington, and its rules of arbitration. Also United Nations Commission on International Trade Law (UNCITRAL) and the Arbitration Institute of the Stockholm Chamber of Commerce (SCC) are popular institutions. 21 The investors are bound to choose the institution that is agreed upon in the BIT. All BIT arbitral awards are subject to the New York Convention and general national arbitration legislation, except for awards commenced under the ICSID Arbitration Rules Introduction to ICSID Convention The ICSID Convention is a multilateral treaty that regulates the procedural framework for the settlement of investment disputes. The convention does not mention any substantive rules of investment protection. Important to notice is that, Contracting States do no consent to arbitration simply by becoming a member of the ICSID Convention. 23 As mentioned above, through their BITs, states can give their consent to arbitration under the ICSID Convention. This consent is binding and any investor who is a national of another Contracting Party can, by means of these provisions, commence arbitration towards the host state. The convention limits its jurisdiction to legal disputes emerging from an investment. The dispute must arise between a Contracting State and an investor from another Contracting State to the Convention. Neither legal dispute nor investment is defined by the Convention. The tribunals have interpreted the term investment as a contribution of money or other assets, during a longer period that sustains some element of risk and contributes to the development of the host state. 24 Some guidance can be found in most BITs that contain a general phrase on the definition of the term and several groups of illustrative categories. For example in the US-Argentina BIT, an investment includes both tangible and intangible property, i.e. both a piece of land and intellectual property can be an investment. 25 According to Dolzer and Schreuer, the negotiating history of the ICSID Convention speaks for a partydefined approach of the term, which means that an investment is interpreted as those laid down by the parties in a BIT or an investor contract. 26 Regarding legal dispute, the International Court of Justice has interpreted the term as a disagreement on a point of law or fact, a conflict of legal views or interests between parties. 21 Kommerskollegium, p Born, 2012, p Dolzer, and Schreuer, 2012, p Born, 2012, p Dolzer, and Schreuer, 2012, p Dolzer and Schreuer, 2012, p

12 This definition is also adopted by ICSID tribunals. According to Schreuer, the dispute must be a clearly identified issue, which is not merely an academic one, and be within the immediate interest of the parties. 27 The tribunals are most commonly composed of three arbitrators. The parties appoint one arbitrator each and the president of the tribunal jointly. If the parties do not agree after 90 days, they may request the Chairman of the Administrative Council to appoint the arbitrators, who, after consulting the parties, selects the tribunal from ICSID s list of arbitrators. The members of the tribunal cannot be nationals of the state or co-nationals of the investor party to the dispute Binding force, Recognition and Enforcement of ICSID awards ICSID awards are not subject to annulment by national courts but they have their own system for review of awards under Article 52 of the ICSID Convention. The Article provides a party the right to challenge an award before an ad hoc annulment committee, which is appointed by ICSID. The annulment committee may only remove the original decision without replacing it in contrast to appeals, which can result in replacement of the award by a new one. After an annulment the parties may resubmit the dispute to a new tribunal. The parties can request an annulment of the awards and not single decisions. 29 The five exhaustive grounds on which either party can request an annulment demonstrate the exceptionality of an annulment under the ICSID Convention. According to Article 52 (1) of the ICSID Convention, parties may request annulment on at least one of the following grounds; (a) improper constitution of the Tribunal, (b) manifest excess of power, (c) corruption of a member of the tribunal, (d) a serious departure from a fundamental rule of procedure, or (e) failure to state reasons the award is based on. 30 What significantly distinguishes ICSID awards from other investment awards is their binding force and enforcement, which is regulated in Articles 53 and 54 of the ICSID Convention. Article 53 excludes the possibility for a party that is dissatisfied with the award, to turn to any other remedy to seek relief for the same claim because of the issue of res judicata. According to Article 53(1) of the ICSID Convention: 27 Schreuer, et.al., 2009, p Dolzer and Schreuer, 2012, p. 279; ICSID Convention Article 37 (2). 29 Dolzer and Schreuer, 2012, p ICSID Convention, Article

13 The award shall be binding on the parties and shall not be subject to any appeal or to any other remedy except those provided for in this Convention. Each party shall abide by and comply with the terms of the award except to the extent that enforcement shall have been stayed pursuant to the relevant provisions of this Convention. No national court of any Contacting State is permitted to review the tribunal s jurisdiction, procedural decisions or other action, examine if the award is substantively correct or consider objections based on ordre public (public policy). 31 In conclusion, once the award is rendered and the possibility of annulment by ad hoc committee has been used, the same matter cannot be brought before another judicial forum such as national or international courts or another tribunal. The exception is in case where the ICSID tribunal renders an award where it finds that it does not hold jurisdiction over the dispute in matter. In such case, the party may take the dispute to another forum. 32 The immediate and unconditional recognition and enforcement of ICSID awards is regulated in Article 54 (1) of the ICSID Convention, which states the following: Each Contracting State shall recognize an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State. Recognition is the preliminary step before an enforcement or execution. By recognizing the award the states are formally confirming its authority and its legal consequences. The task of the national courts or any other authority is limited only to verifying the authenticity of the ICSID award. 33 In conclusion, recognition of an ICSID award may not be refused on grounds of national law. The recognition and enforcement of ICSID awards may be sought in any Contracting Party to the ICSID Convention, which gives the parties the opportunity to seek enforcement at the forum State in which territory the assets are available. 34 The Member State s obligation to enforce is restricted to the pecuniary obligations imposed in the award Dolzer and Schreuer, 2012, p Schreuer et al., 2009, p Schreuer et al., 2009, p Schreuer et al., 2009, p Scheuer, et.al., 2009, p

14 3 Investment Treaty Conflicts and European Union Law The closely linked principles of direct effect and primacy of EU law are some of the defining characteristics of EU law. According to the principle of primacy, EU law overrules any national law that is inconsistent with Union law, which means that national authorities, such as the legislators or national courts, are prohibited to apply domestic laws that are inconsistent with EU law. National courts confronted with this issue must therefore set aside their conflicting national norms and apply the EU law while the national legislators are required to modify their laws in order to make them compatible with their obligations under EU law The Common Commercial Policy of the EU The New Investment Powers of the EU under the Lisbon Treaty By the entry-into-force of the Treaty of Lisbon 37 (Lisbon Treaty) on 1 December 2009, EU was granted exclusive competence over foreign direct investment (FDI), as a component of its Common Commercial Policy (CCP). 38 The exclusivity meant that the power to negotiate and conclude investment treaties with third countries (extra-eu BITs) shifted from the Member states to the EU, more specifically, the European Commission. 39 Thus, if a Member State wishes to enter into a new BIT with a non-eu state, the Commission can give authorization to such Member State to do so. 40 The Union has also passed Regulation 1219/ (Regulation) establishing transitional arrangements for bilateral investment agreements between Member States and third countries, according to which Member states may keep their existing extra-eu BITs in force until they are replaced by treaties concluded by the EU. 42 The Council of the European Union has emphasized that the new legal framework provided to the EU by the Lisbon Treaty should not negatively affect the protection and guarantees investors enjoy under the existing agreements 36 de Witte, 2011, p Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, Dec. 13, 2007, 2007 O.J. (C 306) 1 of 17 December Reinisch, 2014, p Ghouri, 2015, p Stanič, 2015, p Regulation (EU) No1219/2012 (2012) OJ L 351, of the European Parliament and of the Council of December , establishing arrangements for bilateral investment agreements between Member States and third countries, available at: 42 Wilske, and Markert et al., 2015, p

15 since the existing BITs of the Member States with third parties are recognized as the primary source of protection for European investors abroad. 43 Articles 206 and 207 of the TFEU regulate EU s new competence to conclude agreements with third countries with respect to trade and FDI. After the Lisbon Treaty, Article 206 TFEU is as follows: By establishing a customs union in accordance with Articles 28 to 32, the Union shall contribute, in the common interest, to the harmonious development of world trade, the progressive abolition of restrictions on international trade and on foreign direct investment, and the lowering of customs and other barriers. [emphasis added] Article 207(1) TFEU regulates EU s competence in the field of CCP and adds FDIs, since the entering into force of the Lisbon Treaty, to the list of EU s treaty-making powers: The common commercial policy shall be based on uniform principles, particularly with regard to changes in tariff rates, the conclusion of tariff and trade agreements relating to trade in goods and services, and the commercial aspects of intellectual property, foreign direct investment, the achievement of uniformity in measures of liberalisation, export policy and measures to protect trade such as those to be taken in the event of dumping or subsidies. The common commercial policy shall be conducted in the context of the principles and objectives of the Union s external action. As follows from the Articles there is no definition of the scope and application of EU s new competence, i.e. the term of FDI. The Commission defines FDI as to include any foreign investment which serves to establish lasting and direct links with the undertaking to which capital is made available in order to carry out an economic activity. 44 The Commission interprets EU s competence as not being limited to access and admission questions as some 43 Weiss and Steiner, 2013, p. 366; Council of the European Union, Conclusions on a Comprehensive European International Investment Policy, 2041 st Foreign Affairs Council Meeting, Luxembourg, 25 October 2010, para Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions, Towards a Comprehensive European International Investment Policy, COM (2010) 343 final, p 2. 15

16 argue, but argues that it comprises both pre-establishment questions and post-establishment investment protection, allowing it to conclude treaties that include the traditional substantive obligations of International investment agreements and state-to-state or investor-to-state dispute settlement mechanism (ISDS). In such a system, EU would replace its Member States as the respondent in the potential dispute. 45 The scope of FDI is not the only question that remains to be solved, but also the future of intra-eu BITs. In doctrine, the latter has been the focus of discussions. Stanič interprets the new EU competence as that the already existing BITs of the Member States with third countries will progressively be replaced by new agreements of the EU relating to the same subject matter. 46 As opposed to Stanič, Ghouri argues that even though the purpose of EU s competence within FDI is to create a uniform and wide foreign investment regime, the competence of the European Commission seems to concern new agreements only and appears not to empower the Commission to renegotiate or, more importantly, terminate the already existing BITs of Member States. 47 In other words, Ghouri does not consider that EU s new competence allows it to terminate the Member States BITs, inclusively their intra-eu BITs. There seems to be uncertainties amongst the Member States as well. In a report by the Economic and Financial Committee of 2008, it is emphasized that the majority of Member States are in favour of maintaining their intra-eu BITs in force, especially with regard to the investor-state arbitration provision. However, the Commission is also supported by some Member States who have declared an intention of terminating their BITs EU s Internal Relationship to intra-eu BITs Since the new EU competence, the issue of intra-eu BITs and their compatibility with Union law has arisen. The focus of the debate has been the intra-eu BITs relationship to the fundamental freedoms of EU law and the exclusive jurisdiction of the CJEU to interpret EU law under Article 344 TFEU. 49 In the Commission s view, the existing intra-eu BITs are incompatible with EU-law and may have to be terminated, which the Commission and some Member States have argued before various investment tribunals. However, the tribunals have 45 Reinisch, 2014, p Stanič, 2015, p. 33; See also recital 5 to the Regulation (EU) NO 1219/2012 (2012) OJ L Ghouri, 2015, p Weiss and Steiner, 2013, p Weiss and Steiner, 2013, p

17 not shared the Commission s view and in stead declared the on-going validity of intra-eu BITs. 50 As stated above, Member States of the EU cannot act in a way that might be a breach of their obligations under the EU law and policy. 51 According to Article 351 TFEU, Member States have an obligation to remove incompatibilities between agreements concluded before their accession to the EU and the TFEU. 52 Some of the provisions of the Member States BITs have been considered to be incompatible with the Member States obligations under the TFEU. This issue has been addressed by the CJEU in cases against Austria, Sweden and Finland 53 where the Court found that the Member States had violated Article 351 TFEU by not removing provisions of their extra-eu BITs that were inapplicable with EU law. 54 According to Weiss and Steiner, although these cases concern extra-eu BITs, the conclusions of the Court could be mutatis mutandis applicable to intra-eu BITs since the only difference is the legal consequences that arise out of the incompatibility of the treaties. Weiss and Steiner argue thereby that in case of extra-eu BITs, the legal consequence would be the removal of the provisions pursuant to Article 351 TFEU while in case of intra-eu BITs it would be the automatic inapplicability of the contested provisions. 55 Regarding intra-eu BITs, the Commission has expressed concerns about the application of some of its provisions, which might lead to a more favourable treatment of investors who are nationals of Member States party to the BIT by excluding the same protection to investors from other Member States. In other words, the rights granted exclusively to investors of Member States party to the BIT would not be given to investors from other Member States who are not party to the BIT. This would consequently discriminate against investors from other Member States, which would not be in accordance with the relevant Treaty provisions. This concern is articulated particularly regarding the right of investors to international investment arbitration Reinisch, 2014, p Bermann, 2012, p Importantly, the Article applies only to pre-accession treaties and does not extend to post-accession ones. 53 Case C-205/06, Commission v. Austria; Case C-249/06 Commission v. Sweden; Case C 118/07, Commission v. Finland. 54 Weiss and Steiner, 2013, p Weiss and Steiner, 2013, p von Krause, Christopher, The European Commission s Opposition to Intra-EU BITs and its Impact on Investment Arbitration, Kluwer Law International Arbitration Blog, 28 September 2010, available at: 17

18 Not only does the Commission consider application of intra-eu BITs as a potential risk to create inequality between EU citizens, it has also voiced concerns about intra-eu BITs to hinder a harmonized development of EU law. The Commission has expressed these concerns in some cases, which I will give more detail about below, where the source of this concern seems to be the potential risk of an arbitration taking place without the relevant questions of EU law being submitted to the CJEU The MOX Plant Case According to Article 344 TFEU, Member States undertake not to submit a dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided for therein. Concerns have been expressed from the CJEU regarding the implications of other dispute settlement institutions and their possible threat to the autonomy of EU law and the Court s exclusive power to interpret EU law. The claim is not only based on the exclusive competence of the Court but also the explicit prohibition for Member States to choose other fora to settle their EU-related disputes. 58 These concerns were voiced in the MOX Plant 59 case, amongst others, where the Commission brought infringement proceedings against Ireland that had initiated arbitral proceedings against UK under the UN Law of the Sea Convention. The Court found that the issues raised in the arbitration was within the EU competence, why it was a question of interpreting and applying EU law, which the Court had exclusive jurisdiction to do. 60 Thus, the Court affirmed its own exclusive jurisdiction to interpret EU law by asserting that: an international agreement cannot affect the allocation of responsibilities defined in the Treaties and, consequently, the autonomy of the Community legal system, compliance with which the Court ensures / / That exclusive jurisdiction of the Court is confirmed by Article [344 TFEU], by which Member States undertake not to submit a dispute concerning the interpretation or application of the EC Accessed Weiss and Steiner, 2013, p Reinisch, 2014, p Case C-459/03, Commission v. Ireland (MOX Plant). 60 Reinisch, 2014, p

19 Treaty to any method of settlement other than those provided for therein / /. 61 The act of submitting a dispute of this nature to a judicial forum such as the Arbitral Tribunal involves the risk that a judicial forum other than the Court will rule on the scope of obligation imposed on the Member States pursuant to Community law. 62 The decision implies that in cases where there are questions about application and interpretation of EU law, the arbitration tribunal is not entitled to decide if or to what extent EU law is to be applied. 63 There is a difference of opinion regarding the applicability of the MOX Plant case to the situation of investment arbitrations commenced under intra-eu BITs. Reinisch argues that MOX Plant and the Article 344 TFEU that it is based on, refers to inter-state disputes why they should not affect investor-state arbitration since such arbitration would not be regarded as incompatible with the Court s exclusive jurisdiction. 64 Weiss agrees that in contrast to investment arbitration, the dispute in MOX Plant is between two Member States and not between an investor and a Member State, but admits that the Court would not have a different approach to arbitrations commenced under BITs. 65 Clodfelter finds Reinisch statement regarding the inapplicability of the provision on investorstate arbitration under intra-eu BITs, as incorrect. Even though MOX Plant concerns a dispute between two Member States, Clodfelter argues that there is no support for claiming that the Article 344 TFEU itself would be limited to inter-state disputes. In stead, Clodfelter suggests that the absence of limitation in the Article could mean that any submission by a Member State, regardless of who its counterpart is, to a dispute settlement other than the CJEU would constitute a breach of the Article. The mere fact that the Article does not apply to disputes between private parties does not mean that it is also inapplicable to disputes between a Member State and a private party. 66 Clodfelter does not mention, however, that only a Member State is entitled to submit a dispute to the Court according to Article 344 TFEU, not investors. 61 MOX Plant, para MOX Plant, para Weiss and Steiner, 2013, p Reinisch, 2014, p Weiss and Steiner, 2013, p Clodfelter, 2014, p

20 Reinisch does not exclude, that the CJEU might find ISDS proceedings as incompatible if they deal with questions of EU law. In order to avoid such incompatibilities with EU law, Reinisch refers to the European and Community Patents Courts Opinion 67 where the CJEU was asked to rule on the compatibility of the draft agreement, establishing European and Community patents courts, with the EU treaties. In its opinion, the CJEU seems to suggest that the cause of incompatibility is the patent courts lack of access to preliminary reference proceedings. 68 Even if investment tribunals would allow preliminary rulings, such a system would cause new problems with regard to Article 267 TFEU, which governs the right and obligation of any court of tribunal of a Member State to request the Court to give a preliminary ruling in a dispute. In the Nordsee 69 case, the Court stated that commercial arbitral tribunals could not qualify as tribunals entitled to request preliminary rulings in the meaning of Article 267 TFEU, since they were a form of private and not state dispute settlement. Reinisch argues that the same could be applied to investor-state arbitral tribunals since it might be hard to prove the link of such a tribunal to a Member State, despite the argument that one could regard treaty-based arbitration as arbitration based on national law. 70 Consequently, since investment tribunals do not exercise public authority on behalf of Member States, it seems highly unlikely that they could be entitled to request a preliminary ruling under EU law. Clodfelter agrees that the investor-state tribunals are not courts or tribunals of Member States as required by Article 267 TFEU. Contrary to Reinisch, however, Clodfelter argues that the cause of CJEU s concerns was the mere fact that such patent courts, by interpreting and applying EU law, would deprive national courts of Member States of their jurisdiction over the same disputes and thereby their ability to refer questions of EU law to the CJEU. Clodfelter argues that the same is applicable to investor-state arbitral tribunals commenced under intra-eu BITs, since they deprive Member States domestic Courts of their named rights to request CJEU for preliminary rulings and concludes that the jurisdiction given to tribunals under intra-eu BITs are incompatible with the exclusive jurisdiction of the CJEU. 67 Opinion 1/09, European and Community Patents Courts, CJEU, 2011 ECR I-01137, para Reinisch, 2014, p Case 102/81, Nordsee Deutsche Hochseefisherei. 70 See Reinisch, 2014, p

21 Clodfelter concludes, thus, with basis on Opinion 1/09, that it is doubtful that the CJEU would consider such tribunals as compatible with Article 267 TFEU. 71 Regardless of which of these views one supports, the CJEU seems to be concerned about being the only interpreter of EU law, through both direct interpretation and preliminary rulings. This system would therefore be threatened by any other dispute settlement that would interpret EU law without referring the questions to the CJEU. 3.3 The Arbitral Tribunals on intra-eu BITs There have been several investment arbitrations under intra-eu BITs, against EU Member States that have implemented obligations under EU law into their domestic regulations, which has arguably violated their obligations under the BIT, causing the investor to commend arbitral proceedings. This is especially the case for new EU Member States that amend their national laws in order to accede to the EU. The respondent states as well as the Commission have argued for the termination of EU Member States intra-eu BITs after the Member States accession to the EU. Articles 59 and 30 VCLT are recurring in this debate. Article 59 VCLT concerns the termination of an entire treaty: A treaty shall be considered as terminated if all the parties to it conclude a later treaty relating to the same subject-matter and: (a) it appears from the later treaty or is otherwise established that the parties intended that the matter should be governed by that treaty; or (b) the provisions of the later treaty are so far incompatible with those of the earlier one that the two treaties are not capable of being applied at the same time. Article 30 VCLT, on the other hand concerns the priority between particular provisions of an earlier and later treaty and states that: 1. Subject to Article 103 of the Charter of the United Nations, the rights and obligations of States parties to successive treaties relating to the same subjectmatter shall be determined in accordance with the following paragraphs. 2. When a treaty specifies that it is subject to, or that it is not to be considered as 71 Clodfelter, 2014, p ; See also Opinion 1/09 supra note 54, para

22 incompatible with, an earlier or later treaty, the provisions of that other treaty prevail. 3. When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the latter treaty. 4. When the parties to the later treaty do not include all the parties to the earlier one: (a) as between States parties to both treaties the same rule applies as in paragraph 3; (b) as between a State party to both treaties and a State party to only one of the treaties, the treaty to which both States are parties governs their mutual rights and obligations. As said above, investment tribunals have rejected that intra-eu BITs would have become ineffective because of EU s new competence within FDI, and maintained their BIT-based jurisdiction. Some of the case law and the approach taken by tribunals will be examined closely below Eastern Sugar v. Czech Republic The question of the validity and inapplicability of intra-eu BITs with TFEU was first raised in Eastern Sugar B.V v. Czech Republic 72 (Eastern Sugar). The arbitration proceedings were initiated by a Dutch company against Czech Republic claiming that the Czech Republic had violated the fair and equitable treatment (FET) standard under the Czech-Dutch BIT, by enacting a series of three pricing decrees. Czech Republic argued however, that enacting the decrees was a mandatory requirement under the EU law, more specifically the requirement of non-discrimination under the current Article 18 TFEU, and that its obligations under EU law had priority over its obligations under investment treaties. 73 By referring to Article 59 VCLT, the Czech Republic argued that the treaties address the same subject matter and that the concerned BIT was inapplicable since Czech Republic s accession 72 Eastern Sugar B.V. (Netherlands) v. The Czech Republic, Partial award, Stockholm Chamber of Commerce (SCC) no. 088/2004 (Mar. 27, 2007). The arbitration was conducted under the UNCITRAL Rules. 73 Bermann, 2012, p

23 to the EU in The Czech Republic quoted a January 2006 letter from the Commission stating that where the EC Treaty or secondary legislation are in conflict with some of these BITs provisions / / Community legislation will automatically prevail over the nonconforming BIT provisions and intra-eu BITs should be terminated in so far as the matters under the agreements fall under Community competence. 75 However, the Commission also stated: the effective prevalence of the EU acquis does not entail, at the same time, the automatic termination of the concerned BITs or, necessarily, the non-application of all their provisions and meant that the Member States would have to strictly follow the relevant procedures in order to terminate their BITs. 76 Thus, the dispute settlement procedure under the BIT could not be applied by the Member States, for facts occurring after their accession to the EU, if the matter at hand was within the EU competence. The dispute should therefore be resolved under the EU law, based on the principle of prevalence of EU law from the date of a Member States accession. However, the arbitration clause of the BIT could be considered to be in force until the formal termination of the treaty, if the facts of the dispute occurred before the Member States accession to the EU. In such case, arbitral tribunals must consider and respect the primacy of EU law. 77 In a note from the Commission to the Economic and Financial Committee, cited in the award, Commission argues that the dispute settlement mechanism provided by a BIT could lead to arbitration taking place without relevant questions of EC law being submitted to the ECJ, with unequal treatment of investors among Member States as a possible outcome and encourages the Member States to formally rescind such agreements. 78 By referring to Commission s note, the Czech Republic argued that their obligations under the BIT would be superseded by obligations under EU law as of the date of the Czech Republic s accession to the EU. 79 Czech Republic argued, with basis on Commission v Italy, a member state may not exercise rights granted under an earlier agreement to the extent that such exercise conflicts with obligations under EEC treaty 80. Thus, for facts occurring after a 74 Eastern Sugar, paras Eastern Sugar, para Eastern Sugar, para Burgstaller, 2009, p. 185; Eastern Sugar, para Eastern Sugar, para Eastern Sugar, para The EEC treaty, which after the coming into force of the Lisbon Treaty became the TFEU. 23

24 Member States accession to the EU, the BIT would not be applicable for matters that are in conflict with obligations under the TFEU. For these reasons, the Czech Republic asked that the tribunal would consider the BIT as terminated why claimant s investments in Czech Republic would be governed by EU law. Since the respondent considered the BIT inapplicable, they argued that the tribunal lacked jurisdiction to hear the case if it related to the time after the respondent s accession to the EU. 81 Finally, the Czech Republic argued that the CJEU holds interpretive monopoly 82 why the tribunal should refer the matter to the Court. 83 The tribunal found the third out of three decrees to be a breach of the FET standard and argued that the principle of non-discrimination under Article 18 TFEU could not justify the breach of the BIT, especially since the principle did not require the enactment of such decrees. 84 The tribunal asserted that in order for Article 59 VCLT to be applicable, the successive treaties must deal with the same subject matter and be incompatible. Even though the tribunal recognized some commonality between the treaties, some of the most fundamental provisions provided by a BIT, such as the FET standard, guarantee against expropriation and dispute settlement mechanism were not considered to be reflected under the protection of EU law. 85 The fact that BIT could give rights to the Dutch investors that it does not give to other EU investors, did not make these rights incompatible, according to the tribunal who meant that it is up to other countries and investors to claim their equal rights. 86 Furthermore, the tribunal argued that the BIT was not superseded by EU law since neither the treaties marking the Czech Republic s accession to the EU, nor the BIT expressly say so, why the requisites in Article 59 VCLT weren t fulfilled. 87 Consequently, the tribunal found that the mere accession of Czech Republic to the EU had not automatically superseded the BIT why the BIT was still in force, giving the tribunal its jurisdiction. 88 Finally, the tribunal rejected the argument about the CJEU s interpretive monopoly with regard to EU law 89 and Czech 81 Burgstaller, 2009, p Eastern Sugar, para Eastern sugar, para. 109; See also paras Bermann, 2012, p Bermann, 2012, p. 433; Eastern Sugar, paras ; & Eastern Sugar, para See Eastern Sugar, paras ; More closely paras and Eastern Sugar, paras. 172 and Eastern Sugar, para

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