Should The European Union Create a Specialized Court Dealing with Investment Arbitration?

Dominik Moskvan

Virtually all modern bilateral investment treaties contain a provision that gives a possibility to bring claims against the host country before the arbitration tribunal. The popularity of arbitration as a mean of asserting justice between investors and states is definitely caused by the ability of arbitration proceedings to circumvent limitations of the national court system. Such features include speediness; procedural economy; erudite judges; impartiality of the tribunal; and confidentiality of the court proceedings as well as the award. European Union claims that bilateral investment treaties between member states should eventually be terminated as an anomaly to the internal market standards. This raises alert in the eyes of investors because it would mean that investors would lose special protection, one of which is the submission of the claim to arbitration tribunals. In the light of the problematic status of intra-European Union bilateral investment treaties, the purpose of this paper is to assess whether creating a specialised investment court for investment claims would reach a desirable balance between the interest of an investor and EU member states. To test this hypothesis, fittingness of establishment of such an institution under European law is also contested. The main argument which will be put forward is that an investment court would eliminate the most important objections the European Union has expressed against arbitration - transparency, legitimacy and discrimination of investors. Since investors would not probably welcome the lack of promptness and expertise of national courts, special court would suit them better as well.