Developments and challenges in investment treaty cases concerning intra-EU BITs

This article deals with current legal issues on intra-EU Bilateral Investment Treaties (BITs) with regard to their validity and enforceability. There are approximately 190 BITs between the EU Member States and many of them have already generated a great number of investment disputes initiated by investors from EU Member States against other Member States. The position of EU is that intra-EU BITs amount to “anomaly within the EU internal market”, therefore it is expected that all existing intra–EU BITs will be terminated or allowed to lapse. This article, firstly, examines the problem of continuing applicability of intra-EU investment treaties, discussing their possible overlap with the protection afforded by EU law. In this context, this article seeks to analyze the main arguments which have been invoked in support of the proposition that intra-EU BITs are no longer effective and/or may not be applied by the Respondent States in investment disputes and the European Commission itself in the context of one of the most important Eureko BV v. Slovak Republic case. Secondly, it provides the opposing position of arbitral tribunals in number of cases and academic works on the issue and analyses why the proposition of invalidation and inapplicability of the intra- EU BITs may not be successfully invoked. Eventually, the article discusses the consequences of the entry into force of the Lisbon Treaty on the issue and the general importance of the developments of EU law in this area for the future.