International Investment Law and EU Law

International Investment Law and EU Law

Preface

Contents

Contributors

The EU´s Common Investment Policy - Connecting the Dots

Introduction

Competence and Fundamental Freedom

The Relationship between Free Movement of Capital and the Freedom of Establishment

The ECJ´s Jurisprudence

The Views in the Literature

The Scope of Prohibition of Restriction - Equal Treatment and Market Access

Jurisprudence

Doctrinal Construction of Art. 63 (1) TFEU (ex-Art. 56 (1) EC)

Exceptions to the Freedom

Evaluation

The EU´s External Competences in the Area of International Investment Law

The EU´s Investment Competences pre-Lisbon as the Key to its post-Lisbon Competence Conglomerate

Implied Competences - The Quest for Their Existence After the Entry into Force of the Lisbon Treaty

Implied Exclusive Competence After the Entry into Force of the Lisbon Treaty

Existence and Requirements for the Exercise of Implied Shared Competences Before the Entry into Force of the Lisbon Treaty

Continued Existence of Implied Shared Competences After the Entry into Force of the Lisbon Treaty

The Significance of Implied Shared Competences for Portfolio Investment

Evaluation

Conclusion

The Division of Competences Between the EU and Its Member States in the Area of Investment Politics

First Thesis: The inclusion of the provisions on foreign direct investments into the chapter on the Common Commercial Policy re

Second Thesis: The transfer of investment policy competences to the EU is supposed to give the EU the necessary legal basis to

Third Thesis: The notion ``Foreign Direct Investments´´ is not defined in the Treaty on the European Union nor in the Treaty on

Fourth Thesis: The EU Member States have lost their competence to negotiate or conclude international agreements on foreign dir

Fifth Thesis: EU Member States do not have the competence to control foreign direct investments of Sovereign Wealth Funds in th

Sixth Thesis: EU investment agreements comparable with US investment agreements in their scope of application and quality can o

Conclusion

The Division of Powers Between the EU and Its Member States ``After Lisbon´´

Introduction

Three core issues

The scope of the new investment competence - FDI versus a modern broad concept of investment

The scope of the new investment competence - market access versus investment protection

Dispute settlement in future EU investment treaties

Conclusion

The Future of Bilateral Investment Treaties of EU Member States

Introduction

The External Dimension: The Future of BITs with Third States

The Infringement Proceedings against Certain Member States

The EU´s FDI Competence under the Treaty of Lisbon

Limitation to FDI

Further Limitations to the EU´s FDI Competence?

Consequences of the EU´s FDI Competence for the BITs of Member States and European Foreign Investment Policy

The Internal Dimension: The Future of Intra-EU BITs

Conclusion

Art. 351 TFEU, the Principle of Loyalty and the Future Role of the Member States´ Bilateral Investment Treaties

Introduction

Extent of Transferred Competences

Union Competences over Bilateral Investment

Extent of the New Competence over ``Foreign Direct Investment´´

The Future Role of National BITs and the Principle of Commitment to International Law (Völkerrechtsfreundlichkeit)

National BITs from the Viewpoint of Art. 351(2) 2 TFEU

The European Court of Justices Recent Jurisdiction on the Topic

Art. 351 TFEU and the Impact of European Constitutional Principles

Principle of Uniform Application

Principle of Loyalty

Principle of Effectiveness

Consequences of the Transfer of Competences

Termination or Amendment of Previously Concluded International Treaties

Binding Effect of Older International Treaties Beyond the Scope of Art. 351(1) TFEU?

Mutual Consideration During the Transition Period

The Lisbon Judgment´s Influence on the New Competence over Foreign Direct Investment

Conclusion: The Treaty of Lisbon and National BITs

For a Complementary European Investment Protection

Legal Arrangements for the Promotion and Protection of Foreign Investments Within the Framework of the EU Association Policy a

Introduction

Present arrangements for the promotion and protection of investments within the framework of the EU Association Policy and ENP

Bilateral arrangements for the promotion and the protection of investments between the EU and the associated countries of the w

Bilateral contractual relationships between the EU and its Member States, of the one part, and individual countries of the west

Investment promotion and investment protection within the scope of the aforementioned association and stabilisation agreements

Bilateral arrangements for investment promotion and protection within the framework of the southern dimension of the ENP

Bilateral contractual relationships between the EU and several neighbouring states within the framework of the southern ENP dim

Investment promotion and investment protection within the scope of the Euro-Mediterranean agreements

Bilateral arrangements for investment promotion and protection within the framework of the eastern dimension of the ENP

Bilateral contractual relationships between the EU and several neighbouring countries within the framework of the eastern ENP d

Investment promotion and investment protection within the scope of the aforementioned partnership and cooperation agreements

Conclusion and perspectives

The New Great Challenge After the Entry Into Force of the Treaty of Lisbon: Bringing About a Multilateral EU-Investment Treaty

Balancing Investors´ and Host States´ Rights - What Alternatives for Treaty-makers?

The Crucial Question of Future Investment Treaties: Balancing Investors´ Rights and Regulatory Interests of Host States

Introduction

Types of Regulatory Interests

State of Necessity and IIA Provisions for the Protection of National Security and Public Order

Declaratory Right to Regulate

Regulation in the Public Interest

Concepts of Achieving a Balance of Interests

Pursuing Host States´ Regulatory Interests under the status quo

Status quo of IIAs

Status quo in international law beyond IIAs

Role of tribunals under the status quo

Incorporating a Right to Regulate in the Public Interest in IIAs

Incorporating the Right to Regulate in the Preamble

Incorporating the Right to Regulate in the Respective Standards of Protection

Incorporating the Right to Regulate by Drafting Specific Regulatory Clauses

Issues of Implementing the Balance of Interests

Legal Nature and Legal Consequences of Regulatory Clauses

Regulatory Clause as an Exception

Regulatory Clause as Justification

Focus on Legal Consequences of Regulatory Clauses

Preconditions of a Regulation in the Public Interest

Using GATT/GATS and WTO Jurisprudence as a Basis for Arbitral Decisions

Conclusion

COMMUNICATION FROM THE COMMISSION TO THE COUNCIL, THEEUROPEAN PARLIAMENT, THE EUROPEAN ECONOMIC AND SOCIALCOMMITTEE AND THE COMMITTEE OF THE REGIONS

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL