Investment Protection Significant Evolution in the European Union Multilateral Investment Arbitration Treaties

Significant Evolution of Investment Protection in the European Union

1. The Treaty of Lisbon, which was signed in December 2007 and entered into force on 1 December 2009, implemented a reform of the Treaty of Rome and the Treaty of Maastricht as well as the Treaty on the Functioning of the European Union (TFEU). Article 207 (1) of the latter provides now for the exclusive competence of the European Union (EU) to negotiate and enter into agreements with third countries (non-member states) with regard to foreign investments and their protection in the host countries.

For a number of decades, all member states signed hundreds of bilateral investment treaties (BITs) which, inter alia, have included provisions on investment protection agreed with other states. According to the UNCTAD (United Nations Conference on Trade and Development), about 3,000 BITs currently exist all over the world.

Under the TFEU, BITs that have been entered into with EU member states up to the present time shall be gradually replaced by multilateral investment agreements (MIAs) between the EU itself and third countries.

Former BITs shall remain in force until their replacement by MIAs. Member states are not allowed to enter into new BITs since 2009 onwards. With this new policy, the EU aims to eliminate differences among member states and create fairer and more equitable competitive conditions among them.

Both MIAs and BITs, in what concern protection of investments, usually contain provisions covering:

1. • prohibition of expropriation or nationalisation without adequate compensation;

   • investor's right to fair and equitable treatment;

   • prohibition of discriminatory measures;

   • right to repatriate investment-related funds;

   • most favoured nation clauses.

2. • provisions concerning consent given by the party states to solve any disputes usually by arbitration relating to investments after a cooling-off period during which the parties shall try to solve the dispute amicably.

There are some multilateral treaties with a large scope, such as the one provided for in the 1965 Washington Convention which, under the auspices of the World Bank, instituted the ICSID (International Centre for Settlement of Investment Disputes). Another is the Energy Charter Party signed in Lisbon in 1994 on which further comments will be made here below.

The CETA (EU-Canada Trade Agreement) signed on 26 September 2014 and the EU-Singapore Agreement with a similar purpose and initialled on 17 October 2014 are good examples of these large scope trade agreements that contain investment protection provisions. NAFTA is also included in the kind of multilateral agreement regarding similar purposes, among others, as well as the Trans-Pacific Partnership (TTP) between the USA and several Asian countries. This will hopefully be the case with the Transatlantic Trade and Investment Partnership (TTIP) under negotiation between the EU and the USA.

In order to implement the TFEU as amended by the Treaty of Lisbon, the EU Regulation No 912/2014 of the Parliament and Council, dated 23 July 2014, establishes the allocation of financial responsibility for breach of a MIA as follows:

1. if breach is ascribed to the EU responsibility, financial responsibility belongs to the EU;
2. if breach is ascribed to a member state, the latter shall be financially responsible;
3. finally, the EU shall also be financially responsible if unlawful treatment to the investor under the MIA results from any demands provided for in any EU laws or regulations.

It is a well-known fact that the major difficulties in the implementation of foreign investment protections provisions result from uncertainties or poor clarification of concepts such as investment, investor, fair and equitable treatment, adequate compensation, etc., as well as a certain lack of transparency in the contents of arbitration files and awards. These negative aspects have led several countries in South America to denounce certain treaties.

Another difficulty in the negotiation and drafting of this type of treaty as well as in arbitrating disputes is the lack of a clear orientation in the treaties on the correct equilibrium between the regulatory and management sovereignty power of the host state (regulatory chill), on one hand, and the need of investment protection given to the investors, on the other.

With a view to acquiring better knowledge of the importance of these kinds of treaties and in accordance with UNCTAD, a total of 568 investment arbitration files were pending between 1987 and 2013. Large amounts of compensation were adjudicated. The most recent example is the Yukos case in which the Russian Federation was found liable to pay 40 thousand million USD to investors in Yukos company.

During that 26-year period, 43% of cases were decided in favour of the state party, 34% in favour of the investor and 26% were settled amicably.

Moreover, independence of arbitrators is a classic issue because an arbitrator has either been appointed by the same party in too large a number of successive occasions, which may denote a lack of the arbitrator's independence, or then because an arbitrator in a treaty arbitration should not act as counsel in any other arbitration file. An arbitrator in treaty arbitration should always be – in accordance with this position – the arbitrator and neither the counsel in some disputes (whatever the dispute) nor the arbitrator in any other dispute.

Multilateral Investment Arbitration Treaties

2. The Energy Charter Treaty (Energy Charter), also signed in Lisbon in 1994, is one of most important of its kind. It is open for signature to every country in the world and now comprises 53 member states.

This treaty deals with trade of energy products, transmission and international circulation of energy, technical and scientific matters, investment protection abroad and, what is particularly relevant to the subject matter of this article, the ways of settling international energy disputes.

A further treaty which shall be mentioned here is the International Energy Charter signed in The Hague in 2015. It is a recap of the 1994 Lisbon Energy Charter Treaty. As in the case of the former, it deals with the definition of common principles relating to the efficiency of the energy markets, promotion and trade of energetic products and cooperation between state members regarding development of energy policies and environmental protection.

It main purpose in particular is to highlight the universal principle of access to energy and the importance of renewable energy sources.

Unlike the ICSID Convention, the Energy Charter did not create any settlement of dispute system of its own, but only provides some dispute resolution means as an the option for the parties.

Even though the Energy Charter does not provide for arbitration to be the only way to settle disputes, it is clear that arbitration has been by far the most commonly used system in international dispute resolution systems.

The Energy Charter does not exclude the possibility for parties to choose the courts of law of the host country but they have the choice between ICSID arbitration (provided that the host state and the home state of the investor are both members of the ICSID Convention) and the ad hoc arbitration under the UNCITRAL rules or arbitration under the Stockholm Chamber of Commerce Rules (SCC).

According to the Energy Charter website,  arbitration files in accordance with the charter have been conducted in 53% of the cases under ICSID, 20% under SCC Rules and 27% under UNCITRAL Rules in a total of fifty-one cases.

The fork-in-the-road process is not allowed. That is say, once one of the means of dispute resolution is chosen, it may not be ignored and replaced by another.

Energy cases in arbitration in accordance with article 26 of the Energy Charter have increased in the last 3 years from 36 to 68. This is partially due to the so-called “solar claims” against Spain and Czech Republic. These result from governmental decisions to reduce tariffs that consumers pay thereby affecting the interests of producers (feed-in tariffs).

The great success of the Energy Charter, when appointing arbitration as the means to  settle disputes, derives from the easy enforcement of arbitral awards under the New York Convention.

Whenever the ICSID Convention is applied, recognition of a foreign arbitral award is dispensed with because member states that have signed this convention are under the obligation to accomplish arbitral awards as such.

However, the Energy Charter contains several provisions, among which are charges, enforcement of awards and other procedural matters.

The nature and extension of the concept of investment has been under discussion. An application of funds for a project, for instance, a factory, a ship, a large distribution unit, etc. is clearly included in the concept of investment. But some commentators and case law have accepted that a debt concerning the supply of a considerable amount of spare parts for a nuclear power plant should be considered to be an investment.

Most arbitration files on energy disputes have involved European countries either as host state or investors.

It is therefore important to know the main features of arbitration in Europe as a seat of an arbitral tribunal. Some of the most important arbitration institutions (ICC, LCIA, SCC, Permanent Court of Arbitration in The Hague, Swiss arbitration institutions, etc.) are  located in Europe and consequently there are also a large and significant number of arbitral awards, case law on arbitration matters, legal authorities, arbitration books, etc., etc..

Several main aspects are to be taken into account:

1. EC Regulation No 593/2008 of the Parliament and Council (also known by Rome Regulation I)

   This is mandatorily applicable to all EU member states, except Denmark. It relates to conflict of law rules and other provisions of international private law concerning the law applicable to contractual obligations.

   An important and recent judgment of the EU Court of Justice adjudicated in the Unamar case emphasised the priority of the freedom of contract principle on the choice of law of overriding mandatory domestic rules of state members provided that the legislator of each member state has not expressly said that such overriding mandatory rules relate to the protection of crucial economic, political or social interests. For further developments, see our article on the Unamar case published on page 32 et seq. of No 79 September 2015 of the IPBA Journal.

2. Administration Law Arbitration

   Arbitration on administrative law matters has been increasingly implemented in EU member states whether on administrative contract disputes or even some administrative acts practiced by the administrative authorities (governmental, agencies and municipal ones).

   Arbitrability requisite in this case only requires that the dispute should involve patrimonial interests or non-patrimonial ones provided that this is allowed in order to solve the dispute by agreement (transactio).

3. Public Policy Concept

   Most EU state members follow the restrictive concept of public policy, that is, the international public policy of each state under a restrictive concept. Among all mandatory rules of a given country, this restrictive concept relates only to the very few legal matters that a country's legal system vis-à-vis the law applied in a foreign arbitration award or judgment may not accept at all because they infringe upon their fundamental values of economic, political or social order.

   In systems that follow the monist doctrine, the same restrictive concept is applied to both the annulment of awards adjudicated in domestic arbitration and recognition and enforcement of foreign awards.

   There are a number of member states that follow this monist doctrine.

4. 1958 New York Convention

   All EU member states have ratified the NY Convention on recognition of arbitration agreements and foreign awards.

5. 1961 Geneva Convention

   Basically on the same subject as the NY Convention with a few differences in details.

   As to this particularity, it is important to recall that under section 7 of the NY, application of this convention is residual which means that any other convention applicable or internal legal provisions which are more favourable to the recognition of arbitration agreements or foreign arbitration awards should be applied in lieu of the NY Convention.

6. ICSID Convention (1965 Washington Convention)

   Practically all EU member states have ratified this convention.

7. UNCITRAL Model Law

   Several EU member states countries have followed this Model Law when drafting their own arbitration laws.

8. UNIDROIT Rules

   It is quite common for various UNIDROIT Rules to be applied as soft law rules in Europe. They contain, inter alia, both general principles of law and lex mercatoria rules.

9. The 1980 UN Convention on Contracts for the International Sale of Goods (also known as the Vienna Convention on International Sale of Goods)

   This UN Convention is also applied by many though not all EU member states.

Conclusions

1. The Treaty of Lisbon established the exclusive competence of the European Union (EU) to negotiate and enter into, in it own name, agreements on international investments with third countries and on their protection against illegal or unfair measures by host states and their authorities (government, municipalities, etc.).
2. The Energy Charter is the most important multilateral treaty on energy, including protection of investments.
3. The Energy Charter does not provide its own dispute resolution system, but it considers two areas of dispute: (1) one that concerns disputes resulting from investment transactions and (2) another that deals with disputes between the member states themselves.
4. The Energy Charter provides for a 3-month period for the parties to try to resolve the dispute amicably (cool-off period).
5. Beyond this stage, either the investment contract provides for any arbitration agreement or then the parties shall follow arbitration as agreed.

However, if the parties have not agreed to solve disputes through arbitration, the host country courts of law shall bear jurisdiction.

1. More recent energy disputes involve the so-called solar claims due to feed-in-tariffs.
2. It is increasingly probable that UNCITRAL Arbitration Rules will be chosen to rule arbitration files in energy disputes.

Manuel P. Barrocas
Barrocas Advogados
Lisbon-Portugal