Investment protection in the European Union – present and future

The protection of foreign investments based on bilateral investment treaties collapsed in the EU following the Court of Justice of the European Union's Achmea ruling. Provisions ensuring the free movement of capital within the EU can also protect foreign investments. However, unlike in the case of investment arbitration, investors do not have direct access to neutral international fora in ordinary court proceedings. This could be a significant weakness, given that national judges have sole discretion over whether to initiate a preliminary ruling procedure before the CJEU. Therefore, it would be worth considering how to increase the protection of foreign investors at the EU level. One option would be to establish a permanent European Investment Court to which investors could appeal directly.