The compatibility of ISDS provisions in bilateral investment treaties and the Energy Charter Treaty with EU law

Since the 1960’s, EU Member States concluded a vast network of international investment agreements (IIA’s). Such treaties typically offer substantive investment protection standards and investor-state arbitration provisions (ISDS). It is disputed whether those treaties conflict with EU law and whether they can still be relied on against EU Member States and by whom. It is submitted that the relationship between international investment law and EU law can only be understood by clearly separating the issues of international validity and applicability of those treaties from their effects in the EU legal order. The first is determined by international conflict norms, while the second is determined only by reference to EU law itself. The thesis therefore adopts three parts. The first approaches the interaction between EU law and the IIA’s through the lens of the conflict norms of international law. After considering the framework of “harmonious interpretation” and “successive treaty” conflicts, the thesis concludes that despite the existence of a certain overlap or conflict between the EU treaties and IIA’s, the ISDS provisions of IIA’s remain valid and applicable under international law. Investors can therefore continue to rely on them against EU Member States. In a second part, the thesis considers the status and legal value of IIA’s in the EU legal order in light of the internal developments of EU law. The post-Lisbon transfer of competence on Foreign Direct Investment to the EU raised many questions with few answers. The second part therefore sets out the framework of EU law conflict norms and the legal effect of the ECT and BITs in the EU legal order. It is concluded that the BITs enjoy only limited recognition in the EU legal order through article 351 TFEU, which is however bounded by the notion of the autonomy of EU law. In the third part, the thesis examines whether the ISDS provisions of the BITs and the ECT are compatible with the autonomy of EU law. After constructing the role, meaning and requirements of autonomy in relation to international dispute resolution, the thesis concludes that the ISDS provisions in the ECT and BITs are incompatible with the autonomy of EU law. Thus, the ISDS provisions cannot be applied in the EU legal order, but remain valid internationally.