EU 회원국간 양자투자조약과 EU법의 양립가능성: 중재판정을 중심으로

This article deals with the compatibility of intra-EU BITs and EU law surrounding arbitral awards in BITs. Intra-EU BITs are the bilateral investment treaties that EU member states had concluded with other EU member states before the former acceded to EU. Intra-EU BITs and EU law may be overlapped in terms of their scope, which can bring about their incompatibility. In particular the incompatibility can arise with regard to provisions of Intra-EU BITs that confer rights to individuals which do not exist as such under EU law, which conflict with the EU law principle of equal treatment of all EU nationals. In addition the provisions of intra-EU BITs that confer the right on individuals to initiate investor-state arbitration can conflict with the principle of autonomy of EU legal order. Understanding the reasons why intra-EU BITs have given rise to these concerns, this article highlights firstly the legal concerns that arise from the relation and interaction between EU law and intra-EU BITs. Thereafter the general rules on the applicability of international agreements between EU member states under EU law and international law are discussed respectively, focusing in particular on their application in the case of intra-EU BITs. Reaching the conclusion that under international law and EU law the applicability of intra-EU BITs, insofar as relations between EU member states are concerned, depends on their compatibility with EU law, a detailed scrutiny of the comparability of the provisions of intra-EU BITs with EU law is undertaken in the last part of this article.