CYIL 2011

VLADIMÍR BALAŠ

CYIL 2 (2011)

not mean that arbitration tribunals cannot decide on a breach of bilateral investment treaties in investment disputes and it is not at all certain whether such an opinion will be shared by investment tribunals. In relation to third states, the situation is quite different and it is obvious that Article 351 (ex 307, ex 234) does not imply any priority of the TEU. If this is the case of treaties concluded by member states with third parties before the TEC or TEU became binding on them, both the cited provision and the consistent case law of ECJ imply that these treaties have priority over obligations under EU law. From the point of view of the considered matter, it is clear that the outcome of a potential investment dispute may differ substantially depending on whether the investor comes from an EU member state or from a third country. Under certain conditions, even an owner of a legal entity incorporated in one of the EU member states, even though himself a national of a third country, could sucessfully claim compensation for devaluated property. Concluding Remark What to add? In the end, irrespective of all the shortcomings or inconsistencies one can find in the commented reasoning of Czech Courts in the Binder case, it has to be admitted that it was not that bad. The decisions of both courts reflected possible views. At least the judicial system in the Czech Republic proved to be as impartial as one would expect in a democratic state.

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