European Perspectives on the Role of National Courts in the Resolution of Investor-State Disputes

This chapter aims to examine an issue on which the European Union (EU) is bound to develop its own approach when negotiating agreements with third states: the role foreseen for national courts in the settlement of investment disputes. It explores the competing policy considerations concerning the role that domestic courts could play in the broader structure of investor-state dispute settlement. EU member states may have parted ways with the European Commission on the issue of intra-EU bilateral investment treaties, and the desirability, as well as permissibility, of using investor-state arbitration for the settlement of disputes between EU investors and member states. The EU agreements may seem primarily concerned with the avoidance of parallel proceedings and the maintenance of the integrity of the EU legal order. The approach adopted in EU investment agreements attempts to balance the competing considerations by retaining the possibility of direct recourse to investor-state arbitration, while at the same time encouraging resorting to domestic judicial remedies.