The Anatomy of the (Invisible) EU Model BIT

With the on-going negotiations of the first EU international investment agreements and in the absence of a definitive EU Model BIT, the debate on the scope, the standards of protection, investor-state dispute settlement provisions and on additional features to be included in new EU investment treaties has taken center stage in recent EU investment policy discussions

On 25 and 26 November 2013, Prof. Dr. Marc Bungenberg (University of Siegen) and Prof. Dr. August Reinisch (University of Vienna) hosted the second Vienna conference on the European Union and International Investment Law at the Law School of the University of Vienna. The focus of this year’s conference was the possible shape of future EU Model Investment Treaties. Various investment law experts dealt with questions concerning “The Anatomy of the (Invisible) EU Model BIT”. More than 110 participants from all over the world including attorneys, scholars, representatives of the EU institutions, f international organizations and of governments joined in an intensive discussion.

The conference started off with Prof. Dr. Frank Hoffmeister (EU Commission) who provided firsthand information in his presentation on the “Current State of Play in EU Negotiations”. After a vibrant discussion about Prof. Hoffmeister’s talk, the focus was turned to the scope of application of future EU BITs with Prof. Dr. Marc Bungenberg (University of Siegen) sharing his thoughts on “investors and investments” under future EU investment agreements. His lecture was followed by Prof. Wenhua Shan (University of Cambridge/Xi'an Jiaotong University) who addressed the issue of market access clauses. After the lunch break, the rest of the program was devoted to the following topics: Expropriation and FET (Prof. Dr. Ursulua Kriebaum, Universtiy of Vienna), National Treatment and MFN (Dr. Antonios Tzanakopoulos, University of Oxford), Umbrella Clauses and Transfer Provisions (Dr. Anna de Luca, Bocconi University) and Full Protection and Security as well as Arbitrary or Discriminatory Treatment (Dr. Catharine Titi, Université Panthéon-Assas Paris II).

The second conference day’s program initially addressed various procedural issues of possible future EU BITs. Dr. Markus Burgstaller (Hogan Lovells, London) talked about the “Division of Responsibilities EU/Member States and the Role of ICSID”. Prof. Dr. Christoph Herrmann (University of Passau) outlined the role of the CJEU in the context of EU investment agreements. Prof. Dr. Chistian Tams’ (University of Glasgow) lecture on “Coherence and Appellate Possibilities – Procedural Matters and Enforcement” revealed further interesting procedural matters. These presentations were commented on by Prof. Dr. Christoph Schreuer (University of Vienna).

Then, Prof. Dr. Karsten Nowrot (University of Hamburg) talked about the inclusion of environmental protection, human rights and sustainability in international investment law. Finally, N. Jansen Calamita (Investment Treaty Forum, BIICL/University of Birmingham) raised the question whether there is a need for more transparency in investment arbitration.

The conference was concluded by Prof. Dr. August Reinisch, who ‘put the pieces together’ and shared his thoughts on the yet invisible EU Model BIT.