EU foreign investment law

Following Opinion 2/15 it is more than certain that if the Commission continues with its current approach of negotiating far-reaching trade agreements with investment chapters, it will have to conclude them as mixed agreements, together with the Member States. Whilst the Commission’s objective to ensure faster and problem-free ratifications had not been met, this article argues for a more positive reading of Opinion 2/15. From the perspective of public international law and international investment law ‘mixity’ ensures that the new FTIAs will replace and terminate the old MS BITs in a clear, hassle-free fashion. This will also ensure that the new ICS will replace the old ISDS mechanisms and that the sunset clauses found in MS BITs will most likely cease to operate. If, on the other hand, the CJEU had held in favour of concluding the EUSFTA as a ‘sole EU’ agreement, then the termination of existing MS BITs by the new FTIAs would have been called into question and much would have depended on the willingness of investor-state tribunals to accept possible arguments of the EU Commission against their jurisdiction. Furthermore, the old ISDS mechanisms would have most probably existed side-by-side the new ICS and the unilateral termination of MS BITs would have triggered the application of sunset clauses.

Recently, some European countries and institutions have expressed concerns about a lack of reciprocity in foreign direct investment (FDI) treatment with third countries. Indeed, European investors in foreign countries often do not enjoy the same treatment that foreign investors receive in Europe. Member States and EU institutions legitimately relied upon reciprocity which is the basic principle of international trade and investment law and that aims at promoting mutual benefits of the parties involved in the trading system.
In particular, there is an increasing consensus among European politicians that a more efficient screening mechanism of inward FDIs in the European Union (EU) is needed in order to avoid takeovers of European strategic assets by non-European investors that could jeopardize European security and economy. Hence, this contribution tries to identify possible legal bases in the EU Treaties for the creation of a single UE body of FDI control (the so-called European Committee on Foreign Investment).
However, such a mechanism could affect some of the present international obligations undertaken by the EU with its trading partners. In this regard, this article tries to argue that the establishment of a European Committee on Foreign Investment could be legitimately pursued at the international level because of the reciprocity principle. Finally, the present contribution tries to provide some essential aspects of the Committee proposed here.

The EU’s new Free Trade and Investment Agreements (FTIAs) are meant to tackle many of the issues that led to the contestation of international investment law, by increasing the control of the contracting parties over the agreements. One such mechanism is allowing the contracting parties via treaty committees to adopt interpretations of the agreements that are binding on arbitral tribunals and domestic authorities. After a brief historical overview of the way in which this mechanism found its way into the EU FTIAs, the article discusses four main issues:(a) the meaning of ‘serious concerns’ regarding the interpretation of investment provisions; (b) the binding nature of committee interpretations from the perspective of arbitral tribunals and the CJEU; (c) the temporal application of committee interpretations; and (d) their practical operation. As a conclusion, several recommendations are provided that are meant to improve the current ‘binding interpretations’ clauses, before they become model clauses used in future EU FTIAs.

The extension of the EU’s exclusive competences over foreign direct investment, instead of being a smooth process meant to streamline the investment policies of the Member States into one common EU investment policy, has turned into an arduous process of legal and political hurdles.
The purpose of this chapter is to explain the ways in which the EU’s cumbersome investment law and policy can affect the protection of the IPRs of EU investors abroad, by focusing on the following core issues: (a) the fate of Member State BITs with third countries following the Lisbon amendments; (b) the conclusion of new EU trade and investment agreements; (c) the compatibility of intra-EU BITs with EU Law; and (d) the compatibility between the Investment Court System and investment tribunals under Member State BITs with third countries and EU law.

This article looks at the role that the European Parliament (EP), as the only democratically elected EU institution, plays in ensuring transparency in the EU’s newly concluded free trade and investment agreements (FTIAs). Using the empirically tested findings of political scientists, the article puts forward several normative claims. First, the EP should ensure that the FTIAs provide high levels of participatory transparency that allows members of the ‘public’ to actively observe and take part in the international decision-making process. Second, if the participation of members of the general public is not feasible, then at least certain members of the EP should be able to observe the international decision making process and submit observations. Third, if a deliberative democratic ideal is difficult to reach, legitimacy can still be guaranteed by providing public access to the reasons for taking an international decision, after the decision has been taken. In light of these normative claims, the article discusses the transparency provisions the EP should ensure are included in the parts of the FTIAs that deal with the proceedings of the Investment Courts (ICs), the workings of treaty committees handling investment protection and the selection of arbitrator judges for the ICs. Proposals are also made for how the EP should achieve these.

The present contribution discusses regulatory changes within international investment law due to the political shift in the approach of a number of states and of the European Union. These changes have revised the traditional pro-investor framework and attributed relevance to a few non-investment concerns related to sustainable development. The safeguard of the specific interests of indigenous peoples can be seen as one of these concerns. However, this safeguard has been mostly indirect, in light of the widely-accepted market-oriented conceptualization of sustainable development and of the regulatory diversification typical of international law. A few concluding remarks highlight the main reasons why a multilateral approach to international investment law might contribute to enhance the safeguard of the specific interests of indigenous peoples.

SommArio: 1. Introduzione. -2. L'autonomia dell'ordinamento dell'Unione: cenni ricostruttivi. -3. I limiti derivanti dall'autonomia alla sottoposizione dell'Unione a meccanismi internazionali di risoluzione delle controversie secondo il parere 2/13. -4. Le ragioni della Corte. -5. L'autonomia dell'Unione e gli accordi in materia di investimenti: l'approccio dualistico seguito dalla Commissione. -5.1. I possibili modelli. -5.2. Diversi meccanismi di risoluzione delle controversie accomunati dalla separazione tra ordinamenti. -5.3. Le garanzie dell'autonomia. -6. L'alternativa consistente nel previo coinvolgimento della Corte di giustizia. -7. Autonomia e determinazione del convenuto. -8. Considerazioni conclusive.

Published in the European Business Law Review vol 28 (2017)  The present paper addresses the problem of determining who, between the EU and its member states must bear international responsibility for the treatment afforded to a foreign investor. The main issue in this respect appears to be whether, under international law, the way in which competences are distributed between the organization and member states may be a criterion for the allocation of international responsibility. It is submitted that the view that international responsibility should correspond to competence is not generally accepted in international practice. The existence of a special rule of attribution applicable to the EU is also doubtful. Whatever the solution to be given to such problem under general international law, however, the allocation of international responsibility between the EU and its member states will mainly depend on the legal regime established by future investment treaties, or by trade agreements with investment chapters, that the EU will conclude with third states. In this respect, by leaving to the EU the decision as to who will act as the respondent, the investor-state dispute settlement mechanism established under the draft text of CETA will permit to the EU to foster a competence-based approach to the problem of allocating international responsibility.

This article critically assesses the feasibility of the recently proposed Investment Court System (ICS) under the envisaged Transatlantic Trade and Investment Partnership (TTIP), from the perspective of the Court of Justice of the European Union (CJEU). It is argued that an ex ante assessment of the ICS by the CJEU would likely result in several incompatibilities between the ICS and EU law, since insufficient safeguards exist guaranteeing that the ICS will not interfere with EU fundamental rights and the CJEU’s exclusive jurisdiction to deliver binding interpretations of EU law. Moreover, it is not yet certain whether an incompatibility exists with Article 344 TFEU or with substantive EU values. Furthermore, no preliminary reference mechanism is envisaged with a binding ruling of the CJEU and even if such a system were included, it is uncertain whether the ICS could refer a question to the CJEU.

This new book is the first to focus on the interaction between international investment law and other systems of international law. It takes a giant step towards determining a hierarchy of conflicting treaty norms, and establishing a legitimacy threshold for the investor-State arbitral system.

The author approaches the existing challenges – the rights of foreign investors under investment treaties, disputes between the host States trying to protect the health and safety of their citizens versus the treaty rights of foreign companies, and the conflict between international investment law and human rights law, environmental law, and EU law – from the perspective of treaty conflicts.

The work covers every issue that you might expect to find in this contentious area, including:

    flexibility in the amount of compensation payable to foreign investors;

    implications of including non-investment provisions in investment treaties;

    efficacy of the Vienna Convention on the Law of Treaties rules on treaty interpretation;

    legal bases for the interaction of investment and non-investment treaties;

    the ECJ’s views on EC Treaty/TFEU investment treaty conflicts.

You’ll find a wealth of interpretive methodologies, remedial mechanisms, and legally and practically plausible examples that investor-State tribunals can use in their adjudicative techniques. The author argues that the solution to the legitimacy crisis of the investor-State arbitral system lies in the taking up and resolution of the issue of treaty conflicts by the tribunals themselves.

The author addresses the issues relating to the system’s legitimacy, and develops concrete substantive rules of international investment law that fit in with other parallel systems existing within international law.

The work is divided into four main areas:

    The evolution of investment treaties

    The law of treaty conflicts

    Treaty conflicts in investor-state arbitration

    Investment treaty conflicts and the European Union.

This book will help you solve the problem of treaty conflicts by determining the hierarchy between conflicting treaty norms. It will be essential reading for investment arbitrators, cross-border investors, States who are parties to investment treaties, foreign investment policy makers, and others working in arbitration, human rights, environmental law, and international trade.

Settant'anni dopo la conferenza di Bretton Woods, che segnò l'inizio del percorso post-bellico di apertura dei mercati in un'ottica di libero scambio dei fattori della produzione 1 , il mondo sta nuovamente sperimentando un'intensa attività negoziale di carattere economico, che tuttavia non cela ragioni geopolitiche.

This article, published in L. Pantaleo and M. Andenas (eds.), Cristina Reul (ass. ed.), The European Union as a Global Model for Trade and Investment (University of Oslo Faculty of Law Legal Studies Research Paper Series No. 2016-02), explores whether there is a risk that a investment tribunal, by
deciding over who must bear responsibility, may interfere with the internal division of powers between the EU and its member states.

After the Treaty on the Functioning of the European Union (TFEU) came into force, foreign direct investment (FDI) policy came to the exclusive competence of European Union (EU). Consequently, most of bilateral investment treaties (BITs) are to be negotiated and concluded by EU, whereas Member States will be eligible to sign BITs with third countries only when EU empowers them. By introducing these novelties EU has brought many changes and challenges in investment arbitration, as well, since EU is neither a member to ICSID of World Bank and signatory of Washington Convention, nor party of the Statute of the International Court of Justice. Moreover, besides most recent legislation that has introduced some clarifications, there are still lots of unresolved issues that first have to be solved, so that the new FDI policy can result in workable treaties that will manage to prevent complications in possible disputes. Accordingly this article will firstly present the sources of the new common FDI policy and law and the novelties introduced after TFEU entered into force. Secondly, the article will describe which constraints are coming from general principles of EU that can both positively and negatively influence present and future position of EU as a party in dispute settlement proceedings, whereas third part will try to clarify position of EU in few possible dispute settlement scenarios.

In 2009 the Treaty of Lisbon expanded the competences of the EU creating a Common Investment Policy. China has been defined by the European Commission as a perfect candidate for a future bilateral investment agreement. This research would like to investigate the impact of changing EU-China investment relationship on European firms behaviour.

This new book is the first to focus on the interaction between international investment law and other systems of international law. It takes a giant step towards determining a hierarchy of conflicting treaty norms, and establishing a legitimacy threshold for the investor-State arbitral system. The author approaches the existing challenges – the rights of foreign investors under investment treaties, disputes between the host States trying to protect the health and safety of their citizens versus the treaty rights of foreign companies, and the conflict between international investment law and human rights law, environmental law, and EU law – from the perspective of treaty conflicts. The work covers every issue that you might expect to find in this contentious area, including: flexibility in the amount of compensation payable to foreign investors; implications of including non-investment provisions in investment treaties; efficacy of the Vienna Convention on the Law of Treaties rules on treaty interpretation; legal bases for the interaction of investment and non-investment treaties; the ECJ’s views on EC Treaty/TFEU investment treaty conflicts. You’ll find a wealth of interpretive methodologies, remedial mechanisms, and legally and practically plausible examples that investor-State tribunals can use in their adjudicative techniques. The author argues that the solution to the legitimacy crisis of the investor-State arbitral system lies in the taking up and resolution of the issue of treaty conflicts by the tribunals themselves. The author addresses the issues relating to the system’s legitimacy, and develops concrete substantive rules of international investment law that fit in with other parallel systems existing within international law. The work is divided into four main areas: The evolution of investment treaties The law of treaty conflicts Treaty conflicts in investor-state arbitration Investment treaty conflicts and the European Union. This book will help you solve the problem of treaty conflicts by determining the hierarchy between conflicting treaty norms. It will be essential reading for investment arbitrators, cross-border investors, States who are parties to investment treaties, foreign investment policy makers, and others working in arbitration, human rights, environmental law, and international trade.