Humanising European investors: BITs are dead, long live the ECHR? A look to RWE v. The Netherlands

With the phasing out of the established system regulating protection of intra-EU investments, EU investors now face the challenge of asserting their claims under alternative legal bases in front of domestic courts of EU Member States. This chapter explores the implications and consequences of this significant shift. Focusing on the post-Achmea reality, the article analyses the complexities faced by EU investors in navigating the intricate web of laws, regulations, and principles to safeguard their investments, examining the applicable legal frameworks and procedural complexities. The chapter’s main focus is on the protection of property against State measures amounting to deprivation or unlawful control or use. With that in mind, the chapter delves into the RWE v. The Netherlands saga which is playing out in multiple fora and jurisdictions. It provides an in-depth overview of the case proceedings before the District Court of The Hague, emphasizing the application of Article 1 First Protocol ECHR, which enshrines the right to property, providing a paradigmatic example of how EU investors are asserting their rights under the new reality. The chapter also points to ensuing shortcomings of the EU legal framework, at least as may be perceived by investors used to the ISDS system. Overall, the article sheds light on the challenges and opportunities faced by EU investors in asserting their claims before domestic courts. It concludes with an outlook on the future trajectory of intra-EU investment protection, considering various possible scenarios for both claimants and respondent states.