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From Genesis to Apocalypse: As Belgium Heralds the End of the Uncertainty on Intra-EU BITs, Has the UK Missed an Opportunity in a Post-Brexit World?

Practical Law Arbitration Blog

26 Feb 2021

Chiraag Shah and Pietro Grassi authored an article for Thomson Reuters’ Practical Law Arbitration Blog covering the intra-EU bilateral investment treaties (intra-EU BITs), from its genesis in Achmea v Slovak Republic to its potential apocalypse with the termination of all intra-EU BITs, and beyond, following the release of the EU-UK Trade and Cooperation Agreement (TCA) in December 2020.

“Before the EU and the UK announced the terms of their relationship post-Brexit, there was an expectation that they would agree on a comprehensive investment protection regime,” the authors wrote. “This could have benefitted the UK by attracting foreign investors wishing to restructure their investments through the UK to benefit from investment protections vis-à-vis the EU and/or EU member states, and avoid the uncertainties posed by intra-EU BITs.”

But then the UK and the EU signed the TCA, “which sets out a limited number of substantive protections for foreign investors,” and “contains provisions on market access, national treatment, and most-favoured nation treatment.” According to Chiraag and Pietro, “the TCA is, therefore, unlikely to offer the level of investor protection afforded by most BITs and it remains to be seen whether investors will instead be drawn to structure investments through other third-party states which still have BITs in force with EU member states.”

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