Over the past several decades it
was only the states modifying the contents of the investment treaties1.
But after Lisbon Treaty, the EU and it institutions asserted their powers in EU
Governments and members of Parliament3
(both European and national ones) as well as the European Commission are the
new additional actors, who shape the future EU investment policy on the basis
of other factors than was the case in the past4.
These institutions like the Council stressed “the need for an effective ISDS
settlement mechanism in the EU IIAs5.”
The EU institutions involved in the formulation of the EU’s investment policy
have clearly indicated that EU investment agreements must provide an effective
ISDS system6. The
Commission has expressed the view that the absence of provision for investment
arbitration – the latter being such an established feature of investment
agreements would discourage investors and lower the attractiveness of an
economy as an investment destination7.
However not all institutions are in favor of the current development, especially
a European’s Parliaments opposition to the establishment8
of ISDS that may infringe the right to regulate and circumvent ordinary courts
in 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 may
be two separate worlds and that it is going to be very difficult to bridge the
gap between those worlds unless both worlds introduce some more flexibility in
1 Jan Asmus
Bischoff, Just a little bit of mixity? The EU s role in the field of
protection law, (2011) 48 Common Market Law Review
1527–1570, p. 1534.
2 M. Bungenberg, A. Reinisch and
Ch. Tietje,supra note 57, p. 17-36.
3 European Parliament resolution
of 6 April 2011 on the future European international investment policy, (2010/2203
(INI)); available at
4 European Commission,
Communication from the Commission to the European Parliament, The Council, the
European 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:
Council Conclusions, 3041st Foreign Affairs Council Meeting, para. 18.
6 European Parliament resolution,
supra note 70.
7 European Commisson
Communication, supra note 71.
8 European Parliament resolution,
supra note 70.
9 European Parliament, Report on the
Proposal for a Regulation Establishing a Framework for Managing Financial
Responsibility Linked to Investor-State Dispute Settlement Tribunals
Established by International Agreements to which the EU is party, Doc.
COM(2012)0335–C70155/2012–2012/0163(COD), 26 March 2013
10 Dimopoulos, A. Creating
an EU Investment Policy: Challenges for the Post-Lisbon Era of
External Relations (2012) p. 9.