Watch for the Ripples, Not Just the Splash

How the EU Position on Investment Arbitration Has Affected the Enforcement of Awards

Abstract

The European Commission’s attempts to end intra-European Union (EU) investment arbitration, and the decisively helping hand lent by the Court of Justice of the European Union (CJEU) have produced massive splashes, rightfully attracting much attention. However, the ripples after the several splashes have had limited effects. This paper briefly outlines the splashes and goes on to analyze the ripples: investment tribunals retaining jurisdiction and issues around recognition and enforcement within and outside the EU. Although the judgments of the CJEU have had limited effects outside the EU, they have made it more difficult to enforce intra-EU awards within the EU and sometimes also outside of it. The study also examines some of the tools used by the EU to effectively shut the door on intra-EU investment arbitration, which mostly burden its Member States, such as infringement proceedings and decisions on unlawful state aid.