Dispute Settlement Alternatives in Future EU BITS

Building the Framework for Investment Protection
1 / 2012
Günes Ünüvar

Abstract

Following the inclusion of the Common Commercial Policy in the exclusive competences of the European Union, a handful of policy adjustments have occurred. Among these adjustments, investment protection has been a remarkable one - given its new, exclusive framework and an already established, state-level practice. As the new policy stands, Bilateral Investment Treaties, which had been negotiated and executed by the EU Member States in the pre-Lisbon period, can now only be negotiated and executed by the EU. These prospective ‘EU BITs’, inter alia, aim for an even stronger mechanism for the protection of investors both in the EU and in third states. A strong protection mechanism inevitably calls for a strong Dispute Settlement Mechanism, and the establishment of a DSM may prove to be challenging. The EU currently faces several questions on its path to a tangible and reliable ‘EU BIT’, and arguably the most outstanding one is the question of the DSMs to be incorporated in these new agreements. What are the alternatives of a DSM for these new BITs? Which alternatives are currently utilizable and which ones are not? What are the current problems that the EU face, and how can those problems be tackled? Is the International Centre for Settlement of Investment Disputes an alternative, and if not, why? Following a thorough overview, this paper aims to analyse the DSM alternatives for the EU to be used in the new EU BITs and ultimately provide a solid DSM proposal.

About the author

Günes Ünüvar holds an LL.M. degree in International and European Law from Vrije Universiteit Brussel, Belgium and an LL.B. degree in Law from Bilkent University, Turkey. He currently serves as a researcher at TÜSIAD (Turkish Association of Business and Industry) EU Representative Office. He is also an attorney-at-law, admitted to the Ankara Bar Association in Turkey. His research interests include international investment law, international arbitration, WTO, trade law, environmental law and energy law.