Binding Committee Interpretations under the EU’s new FTIAs

Abstract

The EU’s new Free Trade and Investment Agreements (FTIAs) are meant to tackle many of the issues that led to the contestation of international investment law, by increasing the control of the contracting parties over the agreements. One such mechanism is allowing the contracting parties via treaty committees to adopt interpretations of the agreements that are binding on arbitral tribunals and domestic authorities. After a brief historical overview of the way in which this mechanism found its way into the EU FTIAs, the article discusses four main issues:(a) the meaning of ‘serious concerns’ regarding the interpretation of investment provisions; (b) the binding nature of committee interpretations from the perspective of arbitral tribunals and the CJEU; (c) the temporal application of committee interpretations; and (d) their practical operation. As a conclusion, several recommendations are provided that are meant to improve the current ‘binding interpretations’ clauses, before they become model clauses used in future EU FTIAs.