歐盟成員國間雙邊投保協定的存廢對投資爭端解決機制之影響

The Suggested Termination of Intra-EU BITs and Its Implication on Investor-State Dispute settlement

歐盟十餘年前東擴的後遺症現正逐步顯現，東歐前共產國家加入歐盟以前，為吸引外資而與既有成員國簽訂的雙邊投保協定，在歐盟東擴後即形成成員國間投保協定。歐盟認為此種條約在歐盟單一市場架構下並無存在必要，且與歐盟法律體系產生衝突，條約的投資待遇條款與投資人對地主國仲裁程序也形成國籍差別待遇。歐盟於2015年6月正式對特定成員國發動侵權程序，要求此等國家終止其雙邊投保協定，否則可能面臨歐盟法院裁罰。若當事國遵從歐盟要求而終止此等條約，將造成投資人對地主國爭端解決機制的真空。對此，歐盟可能考慮以投資法院系統作為替代方案。此機制針對投資人對地主國仲裁程序加以改善，包括增設上訴機制，排除投資人選任仲裁人，強化程序透明性，費用由敗訴方負擔等措施。唯排除投資人選任仲裁人一節，可能影響投資人對此機制的信心，迫使其尋求母國介入行使外交保護，甚至減少在歐盟地區的投資活動，對於歐盟的經濟發展與政治和諧均形成隱憂。

The repercussion of the European Union's (EU) expansion a decade ago to the Eastern Bloc is now emerging. Those former communist states concluded bilateral investment treaties (BITs) with existing EU member states in order to attract foreign direct investment. These treaties became intra-EU BITs after the contracting states became EU member states. Such treaties are considered by the EU as redundant in light of the single market under the EU and contradictory to EU legal framework; the provisions of investment treatment and investor-state arbitration are also deemed discriminating on nationality basis. In June 2015 the EU initiated infringement proceedings against member states involving intra-EU BITs
and demanded termination of such treaties.
It is likely that those member states may face penalty by the Court of Justice of the European Union if they do not abide by the EU's order. If the intra-EU BITs are terminated, a vacuum will be created concerning the resolution of investor-state disputes. In this regard, the EU might introduce the Investment Court System (ICS) as an alternative. The ICS is aimed to improve investor-state arbitration. It allows an appellate procedure, precludes the investor from appointing arbitrator, enhances transparency of the arbitral proceedings, and allocates the costs on a loser-pays principle.However, if the ICS is implemented, the deprivation of the investor's right to appoint arbitrator may affect the investor's confidence in ICS, resulting in the investor seeking diplomatic protection from its home country; the investor might also be forced to relocate its investment out of the EU region. Such consequence will have a negative impact on the EU's economic development and political harmonization.