The future of ISDS is at a historic crossroads. In this final chapter we provide an overview of the ISDS reform process in the UNCITRAL and discuss the EU proposal for a Multilateral Investment Court in the context of this reform. First, we contextualise the current ISDS reform against earlier attempts to negotiate multilateral international investment agreements to explain how the current reform is different. Second, we discuss the scope of the reform and its process in the framework of UNCITRAL, particularly focusing on the identified ISDS concerns. Third, we outline the reform options that have emerged in the discussion and explain their correlation to the EU’s MIC proposal. In the final part of this chapter, we consider the potential contributions that an MIC could make to the rule of law and the legitimacy of international investment law. While the negotiations are set to conclude in 2025, the aim of this chapter is to place the EU’s proposal in the broader ISDS reform context and reflect on its external challenges in this reform process.

In this final chapter of Part II, we analyse the key legal issues related to the allocation of international investment competence within the EU and examine their implications for policy efficiency and choices in external EU trade and investment relations. Following the Lisbon Treaty of 2009, the EU has gained competence for international investment treaty-making, which previously fell within the scope of the Member States’ competence. Given the relevance of international investment for the EU, on the one hand, and the cross-cutting nature of investment within the range of domestic policy areas on the other, the exercise of competences relating to foreign investment has been surrounded by controversies. Importantly, treaty-making procedure in the EU is not a matter of political inter-institutional preference but it is defined by the delineation of competences, grounded in primary law. The focus of our analysis in this chapter is placed on the internal EU institutional framework regarding competences between the EU and its Member States for investment and the conclusion of EU international investment agreements, and the role of the CJEU in defining the scope of EU policy. The content of EU international investment policy is then analysed in Part III.

International investment law (IIL) and its dispute settlement mechanism is a rare model in international law that allows foreign investors to bring claims for monetary awards directly against States in an international forum, on the basis of international law. Traditionally, individuals have not been subjects of public international law, while State sovereignty has been the main tenet of public international law. How then could individuals, let alone foreign private entities, compel States to engage in dispute resolution with far-reaching consequences? Born out in the 1960s of necessity to protect cross-border investment flows, this area of international law has developed into an extensive and yet fragmented system of instruments for protection of foreign investments and liberalisation of international markets. The development of IIL in a relatively short period of time has been stimulated by an increase in the number of international investment agreements (IIAs) and driven by the rise of investment treaty arbitration (ITA) and jurisprudence. Consequently, the institutional design for investment disputes has become the focus of intense criticism. Debate has evolved around questions of the legitimacy of the international investment regime and its compliance with the rule of law.

Public and political controversies over Investor–State Dispute Settlement (ISDS) have prompted reform processes at international and regional levels. As an emerging actor in this field, the European Union (EU) has been particularly active in shaping new developments, within and outside the EU, and proposing the establishment of a Multilateral Investment Court (MIC). This research examines the underlying reasons and ways in which the EU has been shaping the field of international investment law (IIL) in order to address its own and global ISDS problems. The analysis of EU law and policy solutions envisioned to reform investment law in this book is undertaken in light of the IIL controversies, the EU constitutional and legal framework and the rule of law and legitimacy, as the normative goals of the ISDS reforms. In doing so, this book evaluates the contribution of the EU to the development of international law in the field of investment.

In this introductory chapter to Part II, we will examine the key specifics of the EU legal order and investment protection mechanisms under EU law, with a view to expose systemic similarities and differences between the EU legal order and international investment law (IIL). First, we will explain the basic features of the EU legal order. Second, we will expose the modus operandi of the EU judicial system and the Court of Justice of the European Union (CJEU) as its integral part. Finally, we will explain the scope of investment issues in the EU legal order to understand the reasons which render IIL more attractive to intra-EU investors than EU law. This chapter thus provides the context to the discussion on intra-EU dispute settlement in the next chapter. The divergent approaches to intra-EU ISDS between investment tribunals and the CJEU epitomise the fundamental differences of the two legal orders discussed in this chapter. The tensions between these two legal orders can only be understood in light of the constitutionalisation of the EU legal order, the process in which the CJEU plays the key role.

With the foreign investment competence in the Lisbon Treaty, the EU has set an objective to develop a coherent international investment policy. This policy is now being implemented through EU (mixed) international investment agreements and the Member States’ extra-EU BITs concluded with third countries in the post-Lisbon period. Both set of agreements serve to replace or supplement the existing extensive network of pre-Lisbon extra-EU BITs of Member States. As a matter of principle, a coherent EU policy could ensure the same level of protection for all EU economic operators investing abroad, contributing to the uniformity of the Common Commercial Policy. Further, it supports the EU in the global reform of international investment governance. Ultimately, a coherent external approach of the EU and its Member States could improve consistency between the regulation of investment internally and externally, thus endorsing the EU vision of constitutionalism in international law. In this chapter we examine the extent to which the EU has achieved coherence between EU’s and Member States’ investment agreements. We analyse substantive and procedural provisions of pre- and post-Lisbon Member States’ extra-EU BITs and EU international investment agreements in light of primary EU law, the existing transitional arrangements in EU secondary law and the CJEU case-law.

In this introductory chapter to Part III, we examine the context of EU international investment regulation. We will analyse the objectives of EU trade and investment strategy, and shifts between multilateralism, bilateralism and unilateralism, effectively endorsing pragmatic-lateralism. First, EU values, objectives and principles are briefly introduced, to the extent to which they shape and define the EU’s international action. This is followed by the examination of EU strategy for its integration with the wider world through trade and investment agreements, and the consideration of circumstances which led to the EU’s international investment policy reform. The aim of this chapter is to provide the political background of EU international investment regulatory framework, which is analysed in Chapters 8 and 9.

In Part I of this study we undertook a historical overview of IIL and its institutions and examined the core substantive and procedural rules (Chapter 1), mapped tensions (Chapter 2) and normatively conceptualised the reform challenges (Chapter 3). The complexity of this field of international law is magnified by its internal fragmentation – the large number of different legal instruments and their mixed private–public nature. The manner in which the field operates autonomously from other areas of international law supports the wider phenomenon of fragmentation in international law. Finally, the high financial stakes involved in investment have led to further politicisation of this already politicised field of international law.