The External Dimension of EU Investment Law: Jurisdictional Clashes and Transformative Adjudication

EU trade and investment policy is in flux. The rate at which the global trade and investment architecture is evolving through the mega-regional Free Trade Agreements (“FTAs”) is unprecedented. In this context, we explain how European lawyers and trade negotiators are addressing the newly acquired investment competence, while at the same time reforming investment arbitration and proposing new systems of dispute resolution at the international level. EU trade negotiators have put forward transformative proposals for investment chapters in their FTAs to safeguard, above all, the autonomy of the EU legal order in its relationship with international arbitration law.

By mapping the clash between the investor-State adjudication regime and the EU legal order, we identify the possible legal tools needed to overcome them. Moreover, while supporting the new EU judicial architecture and its procedural rules through an Investment Court System (“ICS”), rather than traditional Investor-State Dispute Settlement (“ISDS”) clauses, we propose greater engagement with State-to-State arbitration and further substantive reforms for a truly transformative adjudication system addressing global inequalities created by the current investment regime.