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Recognition of claims of foreign investors in investment arbitration and the situation of investors from EU Member States and Great Britain after Brexit
Weronika Stefaniuk
https://orcid.org/0000-0003-2661-4302Paweł Karkowski
https://orcid.org/0000-0002-4057-6253Abstract
RESEARCH OBJECTIVE: The scientific purpose of this publication is to determine the position of investors in connection with Investor-State disputes after Brexit. The authors present the legal basis and the reasons for the solutions adopted in TCA (Agreement on trade and cooperation, OJ EU L444/2) in the context of the global changes in ISDS (Investor-State Dispute Settlement Clauses) dispute resolution methods and the formation of the international investment judiciary system.
THE RESEARCH PROBLEM AND METHODS: The issues related to the method of Investor-State dispute resolution in investment arbitration is complex and varied. However, the existing common shortcomings of this method are the cause of the current global situation, in which many countries terminate agreements containing ISDS clauses. When carrying out the analysis, the authors use the dogmatic and historical methods.
THE PROCESS OF ARGUMENTATION: After presenting the characteristics of the arbitration method, the authors analyze the legal situation of investors in the EU in the context of, inter alia, the ruling of the CJEU in the Achmea case. Then, they present the regulatory framework of TCA, as well as BITs (bilateral investment treaties) still binding UK and individual EU Member States, to finally highlight the current legal situation for investors after Brexit.
RESEARCH RESULTS: The authors answer the question whether, under TCA, investors are entitled to submit proceedings against the country in which they made an investment, and whether BITs concluded by Great Britain with EU Member States still constitute the basis for initiating similar disputes by investors. The answer to the above questions seems to be negative.
CONCLUSIONS, INNOVATIONS, AND RECOMMENDATIONS: The Authors point out that investor protection after Brexit shall be regulated in greater detail, considering the experience of past arbitration proceedings and the shortcomings identified on that basis.
Keywords
investment arbitration, Brexit, investor, European Union, ISDS
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