The Arbitrability of Disputes Arising From Intra-EU BITs

The present article has analyzed the issue of arbitrability of disputes arising from intra-EU BITs and it has argued that such disputes are still arbitrable notwithstanding any allegation of invalidity or inapplicability based on EU law. This is based on the fact that the validity of the arbitration clauses contained in BITs is still governed by international law and not by EU law. In order to establish that the arbitrability of such disputes is still governed by BITs, it has been demonstrated that Articles 59 and 30 of the VCLT are inapplicable to the relationship between BITs and EU law and, moreover, that all the arguments alleging the invalidity of intra-EU BITs on the basis of EU law are unfounded. States are therefore not facing competing obligations under the two regimes. Finally, it has been argued that – even if in the future the CJEU should rule that intra-EU BITs are invalid or inapplicable – the arbitrability of disputes arising from such treaties may be still ensured through the application of the principle of irrevocability of consent, the effect of which – that is equal to the one of the doctrine of separability – is to protect and ensure arbitral jurisdiction even if an allegation of invalidity of the main treaty should be made by a party.