INTRA-EU BITS, ECT AND THE EU COMPETENCE ON FDI. GREENTECH V. ITALY AND THE TOWER OF BABEL

The paper analyses the issue of the relationship between international investment agreements (IIAs), with particular regard to intra-EU bilateral investment treaties (BITs) and the Energy Charter Treaty (ECT), on the one hand, and the EU treaties from the perspective of the argumentative structures underlying the arbitral investment awards and the positions of the EU institutions and Member States, on the other hand. The author argues that, following the Achmea judgment, the arbitration community is currently facing an embarrassing incommunicability between international investment law and EU law: a new Babel’s Tower that threatens the reliability of the EU legal order vis-à-vis investors and the arbitration system, as well. A reasonable coordination could and should be achieved not only at the level of jurisdiction, but also at the merits stage of the arbitral proceedings. Arbitral tribunals should retain their jurisdiction. However, they should pay the utmost attention to the substantive standards which have to be applied within the territory of EU Member States towards European investors. Indeed, the real risk of discrimination lies in the use of different legal standards in the appreciation of state measures depending on whether the dispute is decided by national judges and the CJEU (in dialogue with the ECtHR) or by arbitral tribunals in radically different ways. The efforts of substantive coordination between international investment law and EU law could reach a sustainable result suitable to constitute an appropriate reviewing parameter in the enforcement phase of arbitral awards before Member States’ courts.