The Relationship between EU State Aid law and Obligations Arising under Investment Treaties

by Alexandros Bakos, LL.M 

I. Introduction:

In recent years, a series of debates have emerged in regard to the relationship between the EU State Aid law[1], on the one hand, and obligations arising under Investment Treaties (to which the EU is not a formal party)[2], on the other hand. Those debates manifest themselves at different levels and have powerful implications: firstly, they clarify the scope of State Aid law and its relationship with one of the most important fields – that of Investment Law. Secondly, they clarify – or complicate, depending on the vantage point from which one analyses the issue – the relationship between EU law and Public International Law[3]. And, thirdly, they raise questions of interpretation of EU law, especially from a historical interpretation point of view and from a teleological point of view – this is a great tool to understand the limits of EU law (the real limits, not the attempts to politically force an interpretation which extends the limits of EU law beyond what the Member States had envisioned initially).

Needless to say, the practical importance of the relationship between State Aid law and obligations arising under ITs can hardly be overstated. One can only look at the recent Micula affair[4] and the unenviable position in which Romania finds itself: on the one hand, it is faced with severe opposition from the European Commission as regards the observing of certain obligations arising under ITs (more specifically, the obligation to pay compensation to the Micula brothers as the final award against Romania dictates). On the other hand, Romania cannot outright ignore the legal framework set by the ITs (including the binding effect of the awards within this field) and show total disregard to the interests (and even rights) of investors.

As such, I endeavour in this study to provide an analysis of this relationship between State Aid law and obligations arising under ITs. I will focus my attention only on the first tier of this issue – the relationship between State Aid law and obligations arising under ITs themselves – and, as such, I will not analyse more general issues such the relationship between General Public International Law and EU law. Moreover, I will ignore general issues of interpretation of EU law. However, those issues will be touched upon where relevant for the analysis conducted through the present study.

II. Analysis:

Before starting, it should be stated that this analysis is composed of two parts. Firstly, I will analyse the relationship between State Aid law and obligations arising under ITs signed by EU Member States (intra-EU ITs) (1). Subsequently, I will analyse what the relationship between State Aid law and obligations arising under ITs when the ITs’ signatories are both from within the EU and from outside the EU (2).

  1. The relationship between State Aid law and obligations arising under ITs signed by EU Member States (intra-EU ITs):

(a) Scope of analysis:

The problem with intra-EU ITs and State Aid law seems to be that compensation given to investors by member states, as a result of an investment tribunal award, is considered illegal state aid, in cases such as the Micula one.[5] As such, the analysis should address the following: can an investment award rendered by an investment tribunal on the basis of an intra-EU IT be considered illegal State Aid? If so, when can it be considered as such (b)? Following, the next question should be: notwithstanding specific issues of whether enforcement of an investment arbitral award can be considered illegal State Aid, is it justified to ever argue for the termination of an intra-EU IT relying on State Aid law? In other words, can the intra-EU IT, by itself, be considered as violating EU rules on State Aid (c)?

(b) Can an investment award rendered by an investment tribunal on the basis of an intra-EU IT be considered illegal state aid? If so, when can it be considered as such?

In order to address this question, the first issue which must be clarified is what exactly is considered illegal state aid[6]: under Article 107 of the Treaty on the Functioning of the European Union[7], state aid refers to any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods in so far as it affects trade between Member States.[8]

In other words, a number of four conditions must be met in order for a measure to be considered State aid: the State must intervene through that measure (and that measure must be imputable to the state[9]); the beneficiary of the intervention must be conferred an advantage; competition must be distorted; and the intervention must be likely to affect trade between member states.[10] As such, (when) is an investment award rendered by an arbitral tribunal on the basis of an intra-EU IT considered State Aid? In order to answer the question, a qualification of an investment award which leads to an obligation on the State to pay compensation to a wronged investor must be made (including its subsequent enforcement).[11] In simple terms, an award is a final judgement or decision, esp. one by an arbitrator or by a jury assessing damages.[12] Continuing, the enforcement of an award is the act or process of compelling compliance with a law, mandate, command, decree, or agreement.[13]

Of course, there is a question which arises, at this moment: supposing an arbitral tribunal renders an award against an EU member-state based on an intra-EU IT and the State enforces it, what is the legal basis for that? The answer can be found in the two most relied-on arbitration frameworks: the ICSID[14] Convention on the Settlement of Investment Disputes between States and Nationals of Other States[15] which provides that the award given under its framework shall be binding on the parties[16] and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards[17] which provides that each Contracting State shall recognize arbitral awards as binding and enforce them[18]. Thus, an obligation to respect and enforce arbitral awards arises for the state under Public International Law.[19]

This leads to an important question regarding State Aid law: is the condition that the measure must be imputable to the State met? The issue of imputable conduct has been defined by the CJEU as follows: this condition is met when the decisions of Member States by which, in pursuit of their own economic and social objectives, they give, by unilateral and autonomous decisions, resources to undertakings or other persons or procure for them advantages intended to encourage the attainment of the economic or social objectives sought.[20]

Can arbitral awards which are enforced as an obligation under Public International Law be considered as being unilateral and autonomous? Enforcement is, in the end, the latter part of a judicial proceeding. There is nothing autonomous or unilateral about it. And it would be artificial to separate the arbitral decision itself from the enforcement. Just because there is no central executive authority to enforce decisions rendered under Public International Law does not mean that the enforcement of those awards can be separated from the framework in which they arose: obligations owed to other legal subjects which, usually[21], have as their ultimate basis a treaty or customary relationship (a bilateral or multilateral relationship).

This view is shared by two other authors who base their approach on the fact that, when enforcing arbitral decisions, states do not act in their sovereign powers, but as agent(s) of the international community[22]. And there is undeniable merit to this view: that States, when undertaking obligations in their sovereign capacity, are giving up part of their sovereignty.[23] Moreover, even EU official bodies have constantly repeated this fact.[24] In other words, because States give up part of their sovereignty when undertaking legal obligations, they can no longer act unilaterally and autonomously within the fields and situations where they are under certain obligations.

Therefore, it can be concluded that, under EU law, as a rule, a state acting on the basis of an investor-state arbitration award, is not acting unilaterally and autonomously and, as such, the analysed measure regarding a possible issue of illegal State Aid cannot be imputable to the State – a condition for a measure to be considered State Aid.

In the following, I shall research whether there are exceptions to this rule and, as such, whether certain cases of compensating investors as a consequence of an arbitral award can be considered illegal State Aid. A practical case may offer better insights into this question.

Perhaps the most important case for the present analysis which could demonstrate whether there can exist exceptions to the rule that enforcement of arbitral awards rendered within the framework of ITs is not illegal State Aid is the Micula case. In short, this is what happened: the Micula brothers were handed, on the basis of a BIT (the Romanian – Swedish Bilateral Investment Treaty) certain custom duty exemptions. This happened before accession to the EU by Romania. Subsequently, close to the moment of accession (in 2004), Romania repealed the said exemptions, as a compliance mechanism with EU State Aid rules. On the basis of this measure, the Micula brothers challenged the measure in an arbitral tribunal under the relevant IT.

During proceedings, the EU Commission intervened as amicus curiae, effectively arguing against any reinstatement of the exemptions since that would amount to illegal State Aid. However, the arbitral tribunal ignored the Commission’s arguments and found against Romania, effectively ruling that a breach of the claimants’ legitimate expectations occurred, awarding damages.[25] As such, the claimants sought the enforcement of the arbitral decision in Romanian courts. They succeeded although the Commission had once again intervened looking to oppose the enforcement. This led the Commission to open a formal investigation into what they argued could constitute illegal State Aid. It was eventually decided by the Commission that the enforcement of the award (the payment of compensation) constituted illegal State Aid[26] and this bore upon Romania the obligation to recover the awarded compensation.[27] Moreover, the Micula brothers challenged the Commission’s decision in the CJEU, the case pending before the Court at the moment (case T-646/14).[28]

The entire Micula case complicates the matters. In order to better analyse the whole issue, two elements should be separated from the facts: on the one hand, there is the issue of the initial exemption, itself. Romania effectively considered the initial exemption to be illegal State Aid and, as a consequence, repealed it. Moreover, it seems that a formal analysis into the whole exemption leads to the same conclusion: this is an act imputable to the State, which offers the beneficiary an economic advantage, distorts competition and can affect trade between Member states. What complicates matters is that the relevant BIT, on the other hand, protects the legitimate expectations, not a specific exemption such as the custom duties exemption offered by Romania. Of course, once a specific benefit offered to the investors generated legitimate expectations, the standard of legitimate expectations set by the BIT becomes applicable and enforceable. However, there is a difference between the exemption and the obligation to guarantee legitimate expectations.

But the questions which have to be addressed now are: firstly, at the moment of the granting of the exemption, which was fairly close to the moment of Romania’s accession to the EU, were the exemptions granted by the Romanian State to be considered as having generated legitimate expectations? And secondly, what is the basis for ignoring the investment tribunal’s award, by the European Commission? I have already mentioned that I do not consider the EU Legal Regime as being totally autonomous. Thus, it is not separated from the framework of general Public International Law. It is just a system which, from a Public International Law point of view, is in (apparent) conflict with another system: that of Foreign Investment Law. Thus, which is to be considered as having primacy and why?

I will now address the first question: I argue that legitimate expectations indeed existed. I base my claim on two elements: firstly, the arbitral tribunal’s decision to award compensation to the Micula brothers, as a result of the repealing of the custom duties incentive scheme[29]. Secondly, it has been found in case-law regarding Foreign Investment that if a benefit awarded by a State to an investor was presented, by representations made to the investor, as having been in compliance with the legal requirements of the host state, the investment must be awarded the expected degree of protection (by respecting the awarded benefits on which the investor relied), even if, in reality it conflicts with the host state’s law.[30] It is true that in the previously-mentioned case the claimant relied on the principle of estoppel[31], which is a specific application of the legitimate expectations doctrine[32], but the principles applied in the Kardassopoulos v. Georgia case clarify the issue for the Micula case, as well.

Thus, it is not for the investor to bear the risk of an investment which is non-compliant with the legal rules of the host state, when the host state created the expectation of conformity. And this is what happened in the Micula case, because the investment had been protected for a few years, before the repealing of the incentive scheme, creating the proper expectations of legitimacy and legality. Therefore, legitimate expectations existed and were violated by Romania through its repealing act.

Subsequently, there is the issue of analysing the (apparent) conflict between obligations arising under BITs and ones arising under EU law. As mentioned earlier, those are two conflicting legal systems with no apparent hierarchy between them (neither the obligations under foreign investment law nor the ones under EU State Aid law can be considered jus cogens – norms of a peremptory character under International Law, from which no derogation is admitted; in other words, norms of a superior value). Therefore, because those norms are considered to be of equal value, the (apparent) conflict must be settled by relying on the principle of lex posterior derogat (legi) priori.[33]

Under this framework, it can be argued that the subsequent legal regime implemented by the EU State Aid legal regime would derogate from schemes of custom duties exemption such as the one presented earlier. Such exemptions constitute State Aid and since both Romania and Sweden are part of the EU Legal Regime, it can be considered that they have derogated from the possibility to implement such State Aid. As such, if there had been an obligation under the ITs to grant such an economic advantage to the investors, there could have been a real conflict between the ITs and the EU State Aid rules.

However, there did not exist any such obligation. And this is why I mentioned earlier that there was just an apparent conflict between those two international legal regimes – the EU legal regime and the Foreign Investment legal regime – and not a real one. The obligations under ITs are not conflicting with the EU State Aid Rules. What is conflicting is the effective benefit given by the Romanian State to the Micula brothers. While this is inherently linked to the IT, it is not identified with it. This may be a nuance, but it is an important one. It demonstrates that, at least as to the relationship between obligations arising under intra-EU ITs and EU State Aid rules there is no formal conflict.

Thus, this custom duties exemption is a different thing to the protection of legitimate expectations – the ones which are actually protected by the Romanian – Swedish BIT –, expectations which had been created before the EU laws prohibiting State Aid became effective. The legitimate expectations, as mentioned earlier, must be protected, even more so when the investors acted in good faith by relying on the representations of the Romanian officials.

Moreover, it has been proved that payment of compensation as a result of an investment tribunal’s award is not a form of State Aid, because it is neither unilateral nor autonomous, as needed for measure to be imputable to the State and, as such, to be considered State Aid. Therefore, the answer to the second question must be that, while the custom duties incentive scheme constitutes State Aid, the protection of legitimate expectations – through granting compensation –, especially when they were created at a moment when the conflicting rules on State Aid had not been effective, is not State Aid.

As such, there is no obligation for Romania, neither under International Law nor under EU law to recover the paid compensation. However, there are two authors who argue that a compensation rendered as an enforcement of an arbitration award under Foreign Investment Law can constitute a violation of Article 107 of the TFEU if the action leading to an obligation to compensate consists of repealing benefits that are themselves illegal state aid under Article 107 of the TFEU[34]. While I do agree, in principle, with the authors and the opinion of Advocate General Ruiz-Jarabo Colomer in Joined Cases C-346/03 and C-529/03 that if an entitlement to compensation is recognized, the damage cannot be regarded as being equal to the sum of amounts to be repaid, since this would constitute an indirect grant of the aid found to be illegal and incompatible with the common market[35], I cannot agree that this is applicable always, as an absolute rule.

The issue should be assessed on a case by case basis. The authors’ and the Advocate General’s statements do not take into account the legitimate expectations created to the investor. And from an Investment Law point of view, not only does the investor have locus standi under arbitral proceedings in Foreign Investment proceedings, but he is considered a subject of Public International Law[36]. As such, who is to make a hierarchy between the investor’s interests – the protection of his legitimate interests – and those of another subject of Public International Law, the EU – where the fundamental interest is that of the effectiveness of the Internal Market, through a proper competition framework which underpins the functional trade between the EU Member States? From a public international law perspective, the EC legal system remains a subsystem of international law.[37]

Thus, I find such a hierarchy between a subject of Public International Law within the Investment Law field, on the one hand, and the officials of the EU, on the other hand, arbitrary and in violation of basic principles of Public International Law. Moreover, as has been stated somewhere else regarding a similar issue of EU law: just because something is mentioned repeatedly does not turn it into reality.[38]

(c) Notwithstanding specific issues whether enforcement of an investment arbitration award can be considered illegal State Aid, is it justified to ever argue for the termination of an intra-EU IT on the basis of that treaty violating the rules on State Aid prohibition?

Can the intra-EU IT, by itself, be considered as violating EU rules on State Aid? The answer, in my view, is in the negative. This is because investment treaties govern issues such as what constitutes an investment[39], admission of investments[40] or what protection does an investor receive once an investment has been made[41]. In other words, such ITs govern the abstract rules applicable to all investments, not referring to a certain specific investment (of course, the specific investment will benefit from the protection, but on the basis of fitting the framework set by the treaty, not by other means). As such, there is no obligation, ipso jure, to grant an economic advantage which can be considered State Aid under EU rules. The choice to grant that advantage is an economic/ political choice of the State, not an obligation under ITs.

Therefore, it can be concluded that investment treaties are not prohibited under State Aid rules. However, this doesn’t render the issue of the validity of intra-EU Bilateral Investment Treaties obsolete. On the contrary, this is a different discussion, which takes into consideration the common trade policy set by the 2009 Lisbon Treaty[42] and various issues such as questions of jurisdiction of investment tribunals when the parties are an EU Member and an investor from another EU Member[43]. Nonetheless, this is a different issue, going beyond the scope of the present analysis.[44]

  1. What does the relationship between State Aid law and obligations arising under ITs entail when the ITs’ signatories are both from within the EU and from without the EU:

This issue should be easier to analyse, given all that has been presented until now. One of the main problems with the relationship between the obligations arising under intra-EU ITs, on the one hand, and EU State Aid rules, on the other hand, was that the parties to the TFEU were, at the same time, parties to those intra-EU ITs. This situation complicated matters because the conflict was noticeable (although from a different perspective than the one of this analysis – that of the validity of intra-EU ITs). In the case of EU State Aid rules and obligations arising under ITs concluded with third parties, the simple answer is that, because the third party is not a party to the EU, the rules on State Aid are not opposable to it.[45] This does not mean that the EU party granting benefits to an investor from a third State, after the TFEU became effective, is not liable for violations of Article 107. But, at the same time, this will not have any bearing on the earlier obligations arising under the ITs. In that case, if the EU member state decides to repeal any State Aid benefit, it may be in compliance with EU rules on State Aid, but its responsibility will be engaged under customary international law for violating a legal obligation arising under ITs. As a consequence, this breach of international obligations gives rise to an obligation of reparation[46], which does not constitute State Aid – as has been proven in the first part.

III. Conclusion:

The debate over whether there exists a conflict between the legal regime instituted by ITs (excluding those where the EU is a party), on the one hand, and the EU’s legal regime, on the other, is neither straightforward nor devoid of political and economic implications. Through this study, I have analysed a part of this debate: the relationship between ITs, on the one hand, and the legal regime of State Aid law, on the other. I demonstrated, firstly, that obligations specifically arising under ITs are not, by themselves, in conflict with State Aid rules, because there is no ratione materiae identity.

In this context, I made a differentiation between the measures which can be considered illegal State Aid and the ITs (and their provisions such as the ones related to the protection of legitimate expectations), which, although inherently linked to such measures (such as in the Micula case) are, in the end, different. Continuing, I demonstrated why something which tends to be considered an absolute truth – the supremacy of EU law – must be qualified in the international sphere: there is no legal basis under Public International Law to consider such a supremacy when the EU legal regime is in conflict with other international legal regimes. And, finally, I analysed the situation where an IT has signatories both from within and without the EU There, I made a clear differentiation between what can amount to liability of an EU State for violations of Article 107 TFEU and responsibility of the same State under the Customary Law on State Responsibility for violations of obligations contained within ITs. I have shown how an EU State can infringe both legal regimes, at the same time, and why the EU legal regime is relative (and opposable) to the EU States only.


[1]Hereinafter referred to as State Aid law

[2] Hereinafter referred to as IT

[3] For a critique of the concept of self-contained regimes (the idea that supranational or international regimes, such as the EU, are self-contained and cannot be influenced by Public International Law rules, such as Treaty Law or the Law on State Responsibility), see Bruno Simma and Dirk Pulkowski, Of Planets and the Universe: Self-Contained Regimes in International Law, The European Journal of International Law, Vol. 17, no. 3, 2006, hereinafter cited as Simma and Pulkowski. This aspect of mutual influence between those regimes is of utmost importance to the present study, since the starting premise of the present study is that there is a mutual link between semi-autonomous regimes – such as the EU –, on one hand, and general Public International Law rules, on the other. See, for the opposite view (that the EU Legal Regime is an autonomous legal order which is not influenced by Public International Law), Laurens Ankersmit, Is ISDS in EU Trade Agreements Legal under EU law?, https://www.iisd.org/itn/2016/02/29/is-isds-in-eu-trade-agreements-legal-under-eu-law-laurens-ankersmit/ (last visited on 10/02/2018, at 20:58)

[4] Kelyn Bacon, BIT arbitration awards and State aid – the Commission’s Micula decision, http://uksala.org/bit-arbitration-awards-and-state-aid-the-commissions-micula-decision/ (last visited on 10/02/2018, at 20:53)

[5] Christian Tietje, Clemens Wackernagel, Outlawing Compliance? – The Enforcement of intra-EU Investment Awards and EU State Aid law, Policy Papers on Transnational Economic Law, June 2014, p. 2, hereinafter cited as Tietje, Wackernagel

[6] Although a thorough analysis should begin with what constitutes an undertaking, under EU law – since those entities are the beneficiaries of state aid –, I will not undertake such an analysis, for reasons of brevity. Thus, the analysis is considered to refer, implicitly, to such elements.

[7] Hereinafter, referred to as The TFEU

[8] EC (European Commission): Communication from the Commission: Draft Commission Notice on the notion of State aid pursuant to Article 107 (1) TFEU, § 5, p. 4

[9] Tamás Kende, Arbitral Awards Classified as State Aid under European Union Law, ELTE Law Journal 2015/1, p. 40

[10] http://ec.europa.eu/competition/state_aid/overview/index_en.html (last visited on 10/02/2018, at 02:55)

[11] It is true that the situation varies from one case to the other, but I have decided to begin the analysis by qualifying an investment award in abstracto, in order to assess its legality under EU State Aid law and only afterwards I shall address specific cases.

[12] Bryan A. Garner (Editor in Chief), Black’s Law Dictionary. Ninth Edition, WEST. A Thomson Reuters business, St. Paul, MN, USA, 2009, p. 157

[13] Idem, p. 608

[14] The International Centre for Settlement of Investment Disputes

[15] Hereinafter referred to as The ICSID Convention

[16] Article 53 of The ICSID Convention

[17] Hereinafter referred to as The New York Convention

[18] Article III of The New York Convention

[19] According to Article 26 of the 1969 Vienna Convention on the Law of the Treaties, every treaty in force is binding upon the parties to it and must be performed by them in good faith.

[20] Case 61/79, Amministrazione delle finanze del- lo Stato v Denkavit italiana [1980] ECR 1205, § 31

[21] Under Public International Law, the sources of legal obligations can include unilateral conduct or general principles of law, as well (see, for a comprehensive analysis, Malcolm N. Shaw, International Law. Seventh Edition, Cambridge, United Kingdom, 2014, Chapter 3: Sources, pp. 49-91). But, for the present study, this is not important, since obligations arising in Investment Law are based mostly on investment treaties (more specifically, obligations to respect and enforce arbitral awards are the relevant ones for the present analysis), while those based on general principles of law cannot be considered to have appeared from a consensual relationship between the parties to a dispute in a specific dispute. Anyway, from a strictly technical point of view, no matter the source of obligation, the ensuing legal relationship is, in the end, always (at least) bilateral (the correlative existence of the right and of the duty): Arthur L. Corbin, Rights and Duties, 33 Yale Law Journal 501, 1923-1924, p. 502. But what is important, as a bottom-line, is that an arbitral award (and the subsequent obligation of enforcement) arose under a legal relationship outside the scope of the State’s discretionary powers.

[22] Tietje, Wackernagel, p. 7

[23] Sir Hersch Lauterpacht, The Function of Law in the International Community, Oxford University Press, Oxford, United Kingdom, 2011, pp. 3-4

[24] For example, see Case 26/62, Van Gend en Loos [1963], p. 2, § 2 and Case 6/64, Costa v. Enel [1964], p. 594

[25] Ioan Micula, Viorel Micula and others v. Romania: Final Award (ICSID Case No. ARB/05/20)

[26] Article 1 of Commission Decision (EU) 2015/1470 of 30 March 2015 on State aid […] implemented by Romania – Arbitral award Micula v. Romania of 11 December 2013

[27] All the factual information regarding the Micula affair mentioned so far has been gathered from: Kelyn Bacon, BIT arbitration awards and State aid – the Commission’s Micula decision, http://uksala.org/bit-arbitration-awards-and-state-aid-the-commissions-micula-decision/ (last visited on 10/02/2018, at 20:53)

[28] Volterra Fietta, Further attempts by the European Commission to eradicate intra-EU BITs, https://www.volterrafietta.com/further-attempts-by-the-european-commission-to-eradicate-intra-eu-bits/ (last visited on 10/02/2018, at 20:54)

[29] Ioan Micula, Viorel Micula and others v. Romania: Final Award (ICSID Case No. ARB/05/20)

[30] Ioannis Kardassopoulos v. Georgia: Decision on Jurisdiction (ICSID Case no. ARB/05/18, §§ 191-192)

[31] Andreas Kulick, About the Order of Cart and Horse, Among Other Things: Estoppel in the Jurisprudence of International Investment Arbitration Tribunals, The European Journal of International Law, Vol. 27, no. 1, p. 119

[32] I will not get into a detailed discussion of what constitutes estoppel and what is the difference between it and other institutions, such as the one of legitimate expectations. For a detailed analysis of estoppel in International Law and its application by the International Court of Justice, see Alexander Ovchar, Estoppel in the Jurisprudence of the ICJ. A principle promoting stability threatens to undermine it, Bond Law Review, Volume 21, Issue 1.

[33] http://www.oxfordreference.com/view/10.1093/acref/9780195369380.001.0001/acref-9780195369380-e-1282 (last visited on 10/02/2018, at 20:55)

[34] Tietje, Wackernagel, p. 7

[35] Joined  Cases C-346/03 and C-529/03. Opinion of Advocate General Ruiz-Jarabo Colomier, delivered on 28 April 2005, § 198

[36] See Robert McCorquodale, The Individual and the International Law Legal System, in Malcolm D. Evans (ed.), International Law. First Edition, Oxford University Press, Oxford, UK, 2003, pp. 299, 311-314 and 321-322

[37] Simma and Pulkowski, p. 516

[38] Ibid.

[39] Matthias Herdegen, Principles of International Economic Law. Second Edition, Oxford University Press,  Oxford, United Kingdom, 2016, pp. 444-446

[40] Idem, pp. 448-450

[41] Idem, pp. 448-477

[42] Francesco Montanaro and Sophia Paulini, United in Mixity? The Future of the EU Common Commercial Policy in light of the CJEU’s recent case law, EJIL: Talk! Blog, https://www.ejiltalk.org/united-in-mixity-the-future-of-the-eu-common-commercial-policy-in-light-of-the-cjeus-recent-case-law/ (last visited on 10/02/2018, at 20:55)

[43] Emanuela Matei, The love-hate story of arbitral jurisdiction  over claims against states in the EU, EFILA Blog, https://efilablog.org/2016/10/25/the-love-hate-story-of-arbitral-jurisdiction-over-claims-against-states-in-the-eu/ (last visited on 10/02/2018, at 20:56)

[44] For an analysis of this aspect, see: Nikos Lavranos, The Lack of Any Legal Conflict Between EU law and intra-EU BITs/ECT Disputes, EFILA Blog, 25 February 2016, https://efilablog.org/2016/02/25/the-lack-of-any-legal-conflict-between-eu-law-and-intra-eu-bitsect-disputes/ (last visited on 10/02/2018, at 20:55)

[45] The 1969 Vienna Convention on the Law of the Treaties provides, in Article 30 (3.) (b) that when the parties to a later treaty (as is the case when various ITs had existed before the TFEU became effective) do not include all the parties to the earlier one […] as between a State party to both treaties and a State Party to only one of the treaties, the treaty to which both States are parties governs their mutual rights and obligations.

[46] See Article 31 of the ILC Articles on State Responsibility

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