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International Investment Law and EU Law
3
Preface
5
Contents
7
Contributors
9
The EU´s Common Investment Policy - Connecting the Dots
13
Introduction
13
Competence and Fundamental Freedom
14
The Relationship between Free Movement of Capital and the Freedom of Establishment
15
The ECJ´s Jurisprudence
15
The Views in the Literature
17
The Scope of Prohibition of Restriction - Equal Treatment and Market Access
19
Jurisprudence
19
Doctrinal Construction of Art. 63 (1) TFEU (ex-Art. 56 (1) EC)
19
Exceptions to the Freedom
21
Evaluation
23
The EU´s External Competences in the Area of International Investment Law
24
The EU´s Investment Competences pre-Lisbon as the Key to its post-Lisbon Competence Conglomerate
24
Implied Competences - The Quest for Their Existence After the Entry into Force of the Lisbon Treaty
25
Implied Exclusive Competence After the Entry into Force of the Lisbon Treaty
27
Existence and Requirements for the Exercise of Implied Shared Competences Before the Entry into Force of the Lisbon Treaty
29
Continued Existence of Implied Shared Competences After the Entry into Force of the Lisbon Treaty
33
The Significance of Implied Shared Competences for Portfolio Investment
35
Evaluation
37
Conclusion
38
The Division of Competences Between the EU and Its Member States in the Area of Investment Politics
40
First Thesis: The inclusion of the provisions on foreign direct investments into the chapter on the Common Commercial Policy re
41
Second Thesis: The transfer of investment policy competences to the EU is supposed to give the EU the necessary legal basis to
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Third Thesis: The notion ``Foreign Direct Investments´´ is not defined in the Treaty on the European Union nor in the Treaty on
46
Fourth Thesis: The EU Member States have lost their competence to negotiate or conclude international agreements on foreign dir
49
Fifth Thesis: EU Member States do not have the competence to control foreign direct investments of Sovereign Wealth Funds in th
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Sixth Thesis: EU investment agreements comparable with US investment agreements in their scope of application and quality can o
51
Conclusion
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The Division of Powers Between the EU and Its Member States ``After Lisbon´´
54
Introduction
54
Three core issues
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The scope of the new investment competence - FDI versus a modern broad concept of investment
57
The scope of the new investment competence - market access versus investment protection
61
Dispute settlement in future EU investment treaties
63
Conclusion
65
The Future of Bilateral Investment Treaties of EU Member States
66
Introduction
66
The External Dimension: The Future of BITs with Third States
69
The Infringement Proceedings against Certain Member States
69
The EU´s FDI Competence under the Treaty of Lisbon
73
Limitation to FDI
73
Further Limitations to the EU´s FDI Competence?
75
Consequences of the EU´s FDI Competence for the BITs of Member States and European Foreign Investment Policy
78
The Internal Dimension: The Future of Intra-EU BITs
82
Conclusion
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Art. 351 TFEU, the Principle of Loyalty and the Future Role of the Member States´ Bilateral Investment Treaties
89
Introduction
89
Extent of Transferred Competences
92
Union Competences over Bilateral Investment
92
Extent of the New Competence over ``Foreign Direct Investment´´
92
The Future Role of National BITs and the Principle of Commitment to International Law (Völkerrechtsfreundlichkeit)
94
National BITs from the Viewpoint of Art. 351(2) 2 TFEU
95
The European Court of Justices Recent Jurisdiction on the Topic
96
Art. 351 TFEU and the Impact of European Constitutional Principles
97
Principle of Uniform Application
97
Principle of Loyalty
98
Principle of Effectiveness
99
Consequences of the Transfer of Competences
100
Termination or Amendment of Previously Concluded International Treaties
100
Binding Effect of Older International Treaties Beyond the Scope of Art. 351(1) TFEU?
101
Mutual Consideration During the Transition Period
101
The Lisbon Judgment´s Influence on the New Competence over Foreign Direct Investment
102
Conclusion: The Treaty of Lisbon and National BITs
103
For a Complementary European Investment Protection
104
Legal Arrangements for the Promotion and Protection of Foreign Investments Within the Framework of the EU Association Policy a
114
Introduction
114
Present arrangements for the promotion and protection of investments within the framework of the EU Association Policy and ENP
118
Bilateral arrangements for the promotion and the protection of investments between the EU and the associated countries of the w
120
Bilateral contractual relationships between the EU and its Member States, of the one part, and individual countries of the west
121
Investment promotion and investment protection within the scope of the aforementioned association and stabilisation agreements
124
Bilateral arrangements for investment promotion and protection within the framework of the southern dimension of the ENP
127
Bilateral contractual relationships between the EU and several neighbouring states within the framework of the southern ENP dim
127
Investment promotion and investment protection within the scope of the Euro-Mediterranean agreements
131
Bilateral arrangements for investment promotion and protection within the framework of the eastern dimension of the ENP
135
Bilateral contractual relationships between the EU and several neighbouring countries within the framework of the eastern ENP d
136
Investment promotion and investment protection within the scope of the aforementioned partnership and cooperation agreements
139
Conclusion and perspectives
143
The New Great Challenge After the Entry Into Force of the Treaty of Lisbon: Bringing About a Multilateral EU-Investment Treaty
148
Balancing Investors´ and Host States´ Rights - What Alternatives for Treaty-makers?
150
The Crucial Question of Future Investment Treaties: Balancing Investors´ Rights and Regulatory Interests of Host States
153
Introduction
153
Types of Regulatory Interests
155
State of Necessity and IIA Provisions for the Protection of National Security and Public Order
156
Declaratory Right to Regulate
157
Regulation in the Public Interest
158
Concepts of Achieving a Balance of Interests
159
Pursuing Host States´ Regulatory Interests under the status quo
159
Status quo of IIAs
159
Status quo in international law beyond IIAs
163
Role of tribunals under the status quo
166
Incorporating a Right to Regulate in the Public Interest in IIAs
167
Incorporating the Right to Regulate in the Preamble
168
Incorporating the Right to Regulate in the Respective Standards of Protection
168
Incorporating the Right to Regulate by Drafting Specific Regulatory Clauses
169
Issues of Implementing the Balance of Interests
172
Legal Nature and Legal Consequences of Regulatory Clauses
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Regulatory Clause as an Exception
172
Regulatory Clause as Justification
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Focus on Legal Consequences of Regulatory Clauses
174
Preconditions of a Regulation in the Public Interest
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Using GATT/GATS and WTO Jurisprudence as a Basis for Arbitral Decisions
176
Conclusion
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COMMUNICATION FROM THE COMMISSION TO THE COUNCIL, THEEUROPEAN PARLIAMENT, THE EUROPEAN ECONOMIC AND SOCIALCOMMITTEE AND THE COMMITTEE OF THE REGIONS
180
REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
192
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