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

This article examines whether the termination of Bilateral Investment Treaties (BITs) between European Union (EU) Member States creates a legal gap in the protection of intra-EU investments under EU law. It compares key investment protection standards typically found in BITs—such as fair and equitable treatment (FET), full protection and security (FPS), indirect expropriation, umbrella clauses, and transfer of funds—with their equivalents or absence in EU law, including the fundamental freedoms enshrined in the Treaty on the Functioning of the European Union (TFEU) and the Charter of Fundamental Rights of the EU. The analysis finds that while some protections like due process and free movement of capital have parallels in EU law, important standards such as FET, FPS, indirect expropriation, and umbrella clauses are only partially covered or lack equivalents, and that freedom of establishment and proportionality principles do not fully address these gaps. Consequently, the article concludes that the termination of intra-EU BITs risks creating a legal vacuum in investment protection within the EU, underscoring the need for a comprehensive EU-level investment protection framework to ensure investor confidence and legal certainty.