Since the entry into force of the Lisbon Treaty and the conferral of exclusive competence in respect of foreign direct investment on the European Union, a strong debate has arisen regarding the consequences of this newly acquired competence and the relationship between international investment law and EU law. Those questions are increasingly put before the Court of Justice of the European Union which has held notably that intra-EU BITs are incompatible with EU law. That decision has resulted in considerable uncertainty in respect of how to achieve the objective of terminating those agreements and to resolve transitional issues involved in that termination. A majority of EU Member States has signed a plurilateral agreement regarding the termination of their respective intra-EU BITs. However, that agreement, which seeks to divert some pending ISDS proceedings to either a type of mediation process or adjudication before national courts of the Member States, might not resolve all of the transitional issues and further questions might be put before the CJEU.
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