Event Title

The EU on the Investment Path-Quo Vadis Europe?

Location

Benson Center

Event Website

http://law.scu.edu/investment/index.cfm

Start Date

2-2-2013 10:45 AM

End Date

2-2-2013 12:15 PM

Description

With the 2009 Treaty of Lisbon, Foreign Direct Investment (FDI) was inserted into the framework of the existing Common Commercial Policy (CCP) as Article 207 of the Treaty on the Functioning of the European Union (TFEU). Article 207(1) TFEU provides:

1. The common commercial policy shall be based on uniform principles, particularly with regard to changes in tariff rates, the conclusion of tariff and trade agreements relating to trade in goods and services, and the commercial aspects of intellectual property, foreign direct investment, the achievement of uniformity in measures of liberalisation, export policy and measures to protect trade such as those to be taken in the event of dumping or subsidies. The common commercial policy shall be conducted in the context of the principles and objectives of the Union's external action.

To many (member states) this new competence came as a surprise since it was not substantially debated during the Lisbon Treaty negotiations but seems to have entered the final text in a rather unnoticed fashion.

Immediately after the entry-into-force of the Lisbon Treaty the debate focused on the scope of the new investment power and in particular on the limitation to FDI and its implications for the practice of EU treaty-making, whether the “new” EU investment power was limited to questions of market access or extended to the so-called post-investment phase as well, and whether future EU investment treaties would contain investor-State dispute settlement provisions.

Meanwhile the EU Commission has strongly asserted its FDI powers under Article 207(1) TFEU and plans to conclude treaties that cover the entire range of issues currently addressed in EU Member State BITs. Also the initial reluctance towards investor-State dispute settlement seems to have given way to a more positive attitude in this regard.

In July 2010, the Commission issued some preliminary thoughts in a Communication which were taken up by the Council’s Conclusions of October 2010 and the Parliament’s Resolution of April 2011. While the Union is expected to issue more detailed documents by the end of 2012, this paper will discuss the potential shape of future EU investment treaties as far it can be discerned already. It will also address the underlying power struggle between the member states and the Union regarding the control over investment policy. At the same time, calls by various stakeholders for often conflicting goals, such as more protection against the “regulatory chill” of investment protection, more efficient tools to implement investor obligations and more effective enforcement of investment awards, will be addressed.

From 2004 to 2006 he was Dean for International Relations of the Law School of the University of Vienna. He deals with Holocaust related property claims, as president of an UNCITRAL investment arbitration tribunal and as arbitrator and expert in other investment cases.

Reinisch-EU-Investment-Law -Quo-Vadis-18-01-2013.pdf (531 kB)
The EU on the Investment Path-Quo Vadis Europe?

 
Feb 2nd, 10:45 AM Feb 2nd, 12:15 PM

The EU on the Investment Path-Quo Vadis Europe?

Benson Center

With the 2009 Treaty of Lisbon, Foreign Direct Investment (FDI) was inserted into the framework of the existing Common Commercial Policy (CCP) as Article 207 of the Treaty on the Functioning of the European Union (TFEU). Article 207(1) TFEU provides:

1. The common commercial policy shall be based on uniform principles, particularly with regard to changes in tariff rates, the conclusion of tariff and trade agreements relating to trade in goods and services, and the commercial aspects of intellectual property, foreign direct investment, the achievement of uniformity in measures of liberalisation, export policy and measures to protect trade such as those to be taken in the event of dumping or subsidies. The common commercial policy shall be conducted in the context of the principles and objectives of the Union's external action.

To many (member states) this new competence came as a surprise since it was not substantially debated during the Lisbon Treaty negotiations but seems to have entered the final text in a rather unnoticed fashion.

Immediately after the entry-into-force of the Lisbon Treaty the debate focused on the scope of the new investment power and in particular on the limitation to FDI and its implications for the practice of EU treaty-making, whether the “new” EU investment power was limited to questions of market access or extended to the so-called post-investment phase as well, and whether future EU investment treaties would contain investor-State dispute settlement provisions.

Meanwhile the EU Commission has strongly asserted its FDI powers under Article 207(1) TFEU and plans to conclude treaties that cover the entire range of issues currently addressed in EU Member State BITs. Also the initial reluctance towards investor-State dispute settlement seems to have given way to a more positive attitude in this regard.

In July 2010, the Commission issued some preliminary thoughts in a Communication which were taken up by the Council’s Conclusions of October 2010 and the Parliament’s Resolution of April 2011. While the Union is expected to issue more detailed documents by the end of 2012, this paper will discuss the potential shape of future EU investment treaties as far it can be discerned already. It will also address the underlying power struggle between the member states and the Union regarding the control over investment policy. At the same time, calls by various stakeholders for often conflicting goals, such as more protection against the “regulatory chill” of investment protection, more efficient tools to implement investor obligations and more effective enforcement of investment awards, will be addressed.

From 2004 to 2006 he was Dean for International Relations of the Law School of the University of Vienna. He deals with Holocaust related property claims, as president of an UNCITRAL investment arbitration tribunal and as arbitrator and expert in other investment cases.

http://digitalcommons.law.scu.edu/globalevents/investment/symposia/1