Investment Protection in the EU-UK Trade and Cooperation Agreement

In a recent article on the Kluwer Arbitration Blog, members of our Global Arbitration Practice review the protections offered to EU and UK investors under the EU-UK Trade and Cooperation Agreement (“TCA”).

As further set out in that article, the TCA, which regulates the relationship of the EU and the UK after Brexit, contains limited substantive legal protections for the Parties’ investors and no investor-state enforcement mechanism. The TCA cannot be directly invoked before domestic courts, and its dispute resolution mechanism is limited to a “WTO-like” state-to-state arbitration.

This is a striking move away from recent treaties concluded by the EU with third states, such as CETA with Canada or the recently agreed in principle Comprehensive Agreement on Investment ("CAI") with China. These provide for, or envisage further negotiations on, investor-state dispute resolution (“ISDS”) mechanisms in the form of investment court systems, that the EU aims to replace by a single Multilateral Investment Court.

It also remains to be seen what position the UK will adopt with respect to ISDS in its future trade agreements.

The fate of the bilateral investment treaties (“BITs”) concluded by the UK with certain EU member states before their accession to the EU remains uncertain. The same is true for the recognition and enforcement in the UK of arbitral awards rendered under intra-EU BITs or the Energy Charter Treaty ("ECT") in intra-EU situations.

To read the article on the Kluwer Arbitration Blog in full, please click here.