CYIL 2011

CZECH EXPERIENCE WITH BILATERAL INVESTMENT TREATIES: SOMEWHAT BITTER … force, the Commission can be expected to be applying its principles already. It is obvious that the Czech Republic will now need an express authorization to take any relevant step concerning foreign investments, such as negotiation or signing of a BIT with a third country or amending it. Apparently, the Commission is supportive to continuing renegotiations of third countries’ BITs that are inconsistent with rules on free movement of capital – this follows not only from the documents presented by the Commission, but it seems to be confirmed by practice, as several “EU” amendments of existing BITs have been submitted to the Czech Parliament recently. It remains to be seen whether the Commission will let Member States conclude new BITs in their own capacity. Such an idea might turn out to be more realistic than it seems. Immediate development of an EU foreign investment policy can hardly be expected – the development of a coherent EU investment policy will certainly take some time, while in the short and medium term the investment negotiations will concentrate on the EU’s strategic partners, such as China, Russia, India or Mercosur. 79 It may prove to be unwise to let the relations with other countries stay “frozen” at the current level until it is their turn to negotiate with the EU. This might be an area for Member States to negotiate their own investment deals, given their higher flexibility. Anyway, the Commission can be expected to play an active role in any such negotiations, asserting that the interests of the EU be fully respected. While revealing its ambitious plans, the Commission steered clear of intra EU BITs, keeping silent on the matter. 80 Anyway, if the Commission wants to craft a consistent foreign investment policy, it will probably not be able to avoid tackling this issue. The parallel existence of an investment agreement concluded by the EU with third countries and international agreements on same subject matter concluded between its Member States is hardly sustainable over a longer term. The Czech Republic has continued in its effort to terminate intra-EU BITs even after the entry of ToL into force. But it is becoming apparent that consensual termination of some BITs will be not achievable without more tangible support from EU bodies. It will be interesting to see whether the Commission will finally decide to employ a more stringent approach towards the Member States not listening to its appeals and whether it will be capable of making them abandon the intra-EU BIT protection of their investors. 5. Conclusion During the last twenty-year period the Czech Republic has experienced a very turbulent development of international investment protection on its territory, entailing the conclusion, renegotiation and termination of BITs, as well as a number of successful and unsuccessful investment arbitrations. There are probably not many

79 Supra note 76, p. 7. 80 To avoid any eventual doubt, the Communication and Draft Regulation expressly state, that they do not concern intra-EU BITs.

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