IPOL | Policy Department for Citizens’ Rights and Constitutional Affairs
44
PE 703.592
settlement. The EU Treaties also deal with investment and dispute settlement. Thus, at a certain,
general, level the treaties deal with the same subject matter. But at a more specific level they deal with
different subject matters. BITs deal with general obligations on states relating to foreign investment
within the countries of the contracting parties but they also provide a mechanism for nationals of one
party to bring a claim against another party, something that is not provided for in the EU Treaties. Under
the EU regime claimants are left in the hands of domestic courts only, something that BITs do not
provide for. In fact, BITs provide specifically for an alternative to determination by national courts. In
that respect, the EU Treaties and the BITs do not deal with the same subject matter.”
176
Comparing and contrasting the decision from the European Court and the Investment Tribunal, the
former court maintains that EU Treaties are in conflict with intra-EU BITs, while the Investment Tribunal
explicitly rejected such argument. As a result, Courts examine the case
separately, and the term ‘same
subject matter’ may be interpreted narrowly or broadly, depending on various conditions, such as the
facts of the case, the particular construction of the treaties, the legal dispute etc. In like manner, in
theory, divergent views are expressed about whether the normative conflict should be defined
strictly.
177
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