EU Law and Member States’ Investment Treaties: With Reference to the Lisbon Treaty

After entry into force of the Lisbon Treaty and extension of Jurisdiction European Union to foreign investment, certain conflict between investment agreements and EU rules come to light, which caused difficulties to third states and even to EU member States. The European Union tried to resolve the problem with third countries through a specific Regulation. However, with respect to the investment treaties concluded between the members States, the European union made its mission to terminate these treaties. On the other hand, reference of investment disputes to arbitration involving EU member States, has led to decision by the respective arbitral tribunals on the basis of international law rather than EU Law. This has Caused, Opposition by the EU institutions. The strongest of these reaction was made in the Micula Case. The European Commission Expressed the view that the enforcement of the arbitration award was unlawful as it constituted state aid, which is prohibited under the EU law. However, despite the European Commission’s Opposition, the award remains enforceable under the ICSID system. In summary, the EU law in this area contains ambiguities and is capable of generating uncertainty as to the fate and enforceability of bilateral investment treaties.