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The Last Bite of the BIT s—Supremacy of EU Law versus Investment Treaty Arbitration
Author(s) -
Miron Smaranda
Publication year - 2014
Publication title -
european law journal
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.351
H-Index - 54
eISSN - 1468-0386
pISSN - 1351-5993
DOI - 10.1111/eulj.12039
Subject(s) - arbitration , law , treaty , investment (military) , political science , bilateral investment treaty , respondent , legislation , interpretation (philosophy) , accession , business , international investment , european union , international trade , foreign direct investment , philosophy , politics , linguistics
According to Article 267 TFEU , national courts of the EU M ember S tates can (and sometimes must) ask for a preliminary ruling from the C ourt of J ustice on the interpretation and application of C ommunity law, including international treaties and recommendations, and on the validity of C ommunity secondary legislation. In this way, it is ensured that EU citizens are treated equally throughout the U nion. However, this is not applicable when it comes to arbitral proceedings, be they commercial or investment arbitrations. The C ourt does not accept references for preliminary rulings from arbitral tribunals. For this reason, respondent states in international arbitral proceedings have argued that arbitration and EU law are utterly incompatible. In their submissions as respondents in arbitral proceedings, EU M ember S tates have argued that, as a result of EU accession, bilateral investment treaties ( BIT s) have been automatically terminated. In subsidiary, they sometimes claim that, due to their incompatibility with EU law, BIT s cannot apply. But if BIT s are not applicable anymore, there are few remedies left for investors within the EU .