Investment protection standards: Can EU law fill the shoes of investment treaties?

Abstract The termination of Bilateral Investment Treaties (‘BITs’) concluded between Member States of the European Union (‘EU’) raises the question of whether investments by an investor from an EU Member State in another Member State (‘intra-EU’ investments) are sufficiently protected under EU law. By comparing investment protection standards of intra-EU investments under EU law with the standards usually found in investment treaties, this article offers an analysis of whether the termination of intra-EU BITs creates a legal vacuum for investment protection within the EU. It then goes on to analyse whether the freedom of establishment—an EU law concept with no equivalent in investment treaties—and the proportionality principle can plug some of the gaps in investment protection identified in our comparative analysis.