The European Commission's Non-Paper On Model Clauses For Member States' BITs With Third Countries

In October last year, the European Commission released a Non-Paper on Model Clauses with Annotations for EU Member States' negotiation of bilateral investment treaties ("BITs") with third countries. Non-papers do not communicate an official position of the Commission. The Model Clauses are not an official 'EU Model BIT' but suggestions for Member States' BITs.

The Model Clauses provide for investment protection within an EU framework. We provide a brief overview of key provisions in this Note. In line with the CJEU's Achmea Judgment (our German coverage here), the Model Clauses state that where a BIT is concluded with an EU candidate State, the BIT must be terminated on the candidate's accession to the EU.