Over the past several decades itwas only the states modifying the contents of the investment treaties1.
But after Lisbon Treaty, the EU and it institutions asserted their powers in EUIIAs2.Governments and members of Parliament3(both European and national ones) as well as the European Commission are thenew additional actors, who shape the future EU investment policy on the basisof other factors than was the case in the past4.These institutions like the Council stressed “the need for an effective ISDSsettlement mechanism in the EU IIAs5.”The EU institutions involved in the formulation of the EU’s investment policyhave clearly indicated that EU investment agreements must provide an effectiveISDS system6. TheCommission has expressed the view that the absence of provision for investmentarbitration – the latter being such an established feature of investmentagreements would discourage investors and lower the attractiveness of aneconomy as an investment destination7.However not all institutions are in favor of the current development, especiallya European’s Parliaments opposition to the establishment8of ISDS that may infringe the right to regulate and circumvent ordinary courtsin this way posing significant risks and can be dispensed with9”.
But these may not be the only problem wih ISDS. EU law and investment law maybe two separate worlds and that it is going to be very difficult to bridge thegap between those worlds unless both worlds introduce some more flexibility intheir perspectives10.1 Jan AsmusBischoff, Just a little bit of mixity? The EU s role in the field ofinternational investmentprotection law, (2011) 48 Common Market Law Review1527–1570, p.
1534.2 M. Bungenberg, A. Reinisch andCh. Tietje,supra note 57, p. 17-36.3 European Parliament resolutionof 6 April 2011 on the future European international investment policy, (2010/2203(INI)); available athttp://www.europarl.
4 European Commission,Communication from the Commission to the European Parliament, The Council, theEuropean Economic and Social Committee and the Committee of the Regions,Towards a comprehensive European international investment policy, 7 July 2010,COM(2010) 343 final 4; available at:http://trade.ec.europa.eu/doclib/docs/2010/july/tradoc_146307.pdf.5 Council Conclusions, 3041st Foreign Affairs Council Meeting, para.
18.6 European Parliament resolution,supra note 70.7 European CommissonCommunication, supra note 71.8 European Parliament resolution,supra note 70.9 European Parliament, Report on theProposal for a Regulation Establishing a Framework for Managing FinancialResponsibility Linked to Investor-State Dispute Settlement TribunalsEstablished by International Agreements to which the EU is party, Doc.
COM(2012)0335–C70155/2012–2012/0163(COD), 26 March 201310 Dimopoulos, A. Creatingan EU Investment Policy: Challenges for the Post-Lisbon Era ofExternal Relations (2012) p. 9.