Article: When human rights and investment protection intertwined: the role of the European Court of Human Rights in the enforcement of intra-EU BITs within the EU

Since the judgment of the Court of Justice of the European Union (CJEU) in Achmea, a veil of uncertainty has surrounded the destiny of intra-EU investment agreements and their awards thereto. This paper aims to contribute to the debate about the consequences of Achmea focusing on the non-enforcement of intra-EU awards within the EU. Specifically, it examines whether the European Court of Human Rights (ECtHR) may play a role in case of non-enforcement of those awards. It essentially argues that, in some circumstances, the refusal to enforce intra-EU arbitral awards may be considered as contrary to the European Convention on Human Rights (ECHR) by the Court, particularly Article 1 Protocol No. 1 (right to property) and Article 6 (right to a fair trial). In this regard, the central argument of this paper is that a refusal to enforce an award based on the Achmea objection can raise concrete issues of proportionality, especially if one considers the enforcement of ICSID awards. Specifically, the lack of an effective mechanism of effective redress for investors in EU law may lead to a breach of both the right to property and the right to a fair trial that cannot be justified either under the ECHR and the famous Bosphorus presumption.