FINANCIAL RESPONSIBILITY IN EUROPEAN INTERNATIONAL INVESTMENT POLICY

2014 ◽  
Vol 63 (2) ◽  
pp. 449-476 ◽  
Author(s):  
Jan Kleinheisterkamp
Keyword(s):  
International Investment ◽  
Investment Policy ◽  
Policy Space ◽  
Financial Responsibility ◽  
Eu Policy ◽  
Starting Point ◽  
Private And Public ◽  
Investment Treaties ◽  
Draft Regulation ◽  
The Eu

AbstractEU Financial responsibility resulting from investor-state arbitration is a politically sensitive topic that is currently shaping the emerging European international investment policy. What level of protection can foreign investors be granted in future EU investment treaties without compromising EU ‘policy space’? How much review of its regulatory powers by arbitral tribunals, rather than by the CJEU, is the EU willing to accept? Taking the Commission's recent draft Regulation on managing financial responsibility as the starting point, this article analyses the implications that future EU investment agreements may have for the existing safeguards balancing private and public interests in EU law. It discusses the different policy choices in the light of fears that investment treaties may affect the EU policy space. A more scientific and sustainable approach is then suggested for ensuring that future EU agreements provide sufficient clarity regarding the outer bounds of financial responsibility and criteria for liability with the aim of maximizing legal certainty for both investors and host states.

Hesitant Embrace: China’s Recent Approach to International Investment Rule-Making

2015 ◽  
Vol 16 (5-6) ◽  
pp. 843-868 ◽  
Author(s):  
Axel Berger
Keyword(s):  
Policy Making ◽  
Significant Contribution ◽  
International Investment ◽  
Investment Policy ◽  
Recent Period ◽  
Investment Treaty ◽  
Key Stakeholders ◽  
Recent Approach ◽  
Investment Treaties ◽  
Rule Making

China is becoming one of the key stakeholders in the international investment regime. It is, however, still unclear what role China can play in the ongoing reform of the international investment regime. Starting from this overall focus, this article analyses the most recent period of China’s international investment policy-making. Mapping the contents of investment treaties signed since 2008 it argues that China undertook a partial ‘NAFTA-ization’. Whilst China has adopted a number of clauses invented by the NAFTA countries, it introduced these clauses in an incoherent fashion. Looking at the drivers of this peculiar policy, this article argues that China’s investment treaty-making practice is largely inspired by its partner countries. As a result of this particular negotiation policy, Beijing’s approach to international investment rule-making is inconsistent. This belies the argument that China can make a significant contribution to reforming the international investment regime.

scholarly journals A Legal History of the EU’s International Investment Policy

2016 ◽  
pp. 743-772 ◽  
Author(s):  
Robert Basedow
Keyword(s):  
International Investment ◽  
Investment Policy ◽  
Legal Interpretation ◽  
The European Union ◽  
Business Lobbying ◽  
History Of ◽  
Eu Policies ◽  
European Business ◽  
Global Economic Governance ◽  
The Eu

The article traces the evolution of the legal competences of the European Union (EU) in international investment regulation from the Spaak Report (1956) to the Lisbon Treaty (2009). It focuses on the question why and how the EU gradually acquired legal competences in this key domain of global economic governance. The analysis suggests that Commission entrepreneurship and spill-overs from other EU policies were the most important factors fuelling the extension of the EU’s legal competences. The Member States, on the other hand, sought to prevent a competence transfer. European business – arguably the main stakeholder – was mostly uninterested or divided regarding the EU’s role in international investment policy. The findings have implications for our perception of business lobbying in international investment policy and potentially for the legal interpretation and delimitation of the EU’s new competences.

Report of the 4th EFILA Annual Conference 2019

2019 ◽  
Vol 4 (1) ◽  
pp. 301-357
Author(s):  
José Rafael Mata Dona
Keyword(s):  
Dispute Settlement ◽  
Ad Hoc ◽  
International Investment ◽  
Investment Policy ◽  
Annual Conference ◽  
Full Time ◽  
The European Union ◽  
Energy Investment ◽  
International Investment Law ◽  
The Eu

On 31 January 2019, Herbert Smith Freehills kindly hosted in London the 4th EFILA Annual Conference on the “European Union (EU) and the future of International Investment Law and Arbitration”. The EU’s external investment policy and its investment policy towards Asia featured as the topics of the first two panels, which were followed by a keynote speech on the construction of a Multilateral Investment Court (MIC). The conference’s last panel dealt with the EU’s energy investment policy. This report presents the most relevant developments behind the EU’s external investment policy until the end of January 2019, its implementation towards Asia and influence in new global trends in investor-State dispute settlement. Further, it confronts the arguments of followers and detractors of the idea of a permanent standing two-tier mechanism with full-time adjudicators, which is promoted by the EU as the only option that can successfully respond to all the problems and challenges of the current ad hoc system. Finally, it conveys both the EU’ and investors’ needs in the construction of new carbon-friendly infrastructure and their enquiries into the modernisation process of the Energy Charter Treaty.

scholarly journals Travelling the National Route: South Africa's Protection of Investment Act 2015

2018 ◽  
Vol 26 (2) ◽  
pp. 242-263
Author(s):  
Tarcisio Gazzini
Keyword(s):  
South Africa ◽  
South African ◽  
Foreign Investment ◽  
International Investment ◽  
Strong Response ◽  
Foreign Investors ◽  
Public Rights ◽  
Private And Public ◽  
Investment Treaties ◽  
Settlement Of Disputes

The South African Protection of Investment Act 2015 is a strong response to the perceived inadequacy of investment treaties, which are facing growing criticism for their unbalanced character, the undue restrictions on policy space and the shortcomings of the mechanism for the settlement of disputes. While other states have opted for a revision of their treaty models (i.e. India), concluded innovative BITs (i.e. the BIT between Morocco and Nigeria, not yet in force) or preferred facilitation agreements (i.e. Brazil), South Africa has taken a different route based on the assumption that domestic legislation is more appropriate than international legal instruments to regulate foreign investment. The Act is firmly anchored to the Constitution and provides a level of substantive and procedural protection that efficiently preserves South African sovereign prerogatives, but definitely falls short of that commonly ensured under international investment treaties. While states obviously need to balance the private and public rights and obligations at stake with a view to pursuing their economic and social development policies, it remains to be seen whether the drastic reduction in the protection of foreign investors operated by the Act was unavoidable and what impact it may have on the flow of foreign investment to South Africa. The article ultimately reflects on the implications of the Act from the standpoint of the protection enjoyed by foreign investors under both customary international law and investment treaties currently binding South Africa.

The Right to Seek – Revisited. On the UN Human Rights Declaration Article 14 and Access to Asylum Procedures in the EU

2008 ◽  
Vol 10 (4) ◽  
pp. 439-459 ◽  
Author(s):  
Hans Gammeltoft-Hansen ◽  
Thomas Gammeltoft-Hansen
Keyword(s):  
Human Rights ◽  
Universal Declaration ◽  
Human Rights Law ◽  
Eu Policy ◽  
Refugee Protection ◽  
Starting Point ◽  
Migration Control ◽  
Eu Policies ◽  
The Right ◽  
The Eu

AbstractThis article compares the "right to seek and enjoy asylum" enshrined in Art. 14 of the Universal Declaration of Human Rights with the current EU policy developments to "externalize" or "extraterritorialise" migration control and refugee protection. Examining the genesis of Art. 14 during the negotiations of the Universal Declaration, it is argued that while Art. 14 clearly falls short of granting a substantive right to be granted asylum, its formulation was intended to maintain a procedural right – the right to an asylum process. While the Universal Declaration is not a legally binding instrument, going back to the fundamental norms expressed herein nonetheless provides an important starting point for evaluating current policies, especially in light of recent critiques against overly expansive interpretation of human rights law. As such, the article concludes that the current EU policies to shift migration control and refugee protection away from Europe in important respects contravenes "the right to seek asylum" as it was conceived exactly 60 years ago.

scholarly journals The Dimensionality of the EU Policy Space

2002 ◽  
Vol 3 (1) ◽  
pp. 59-80 ◽  
Author(s):  
Paul Pennings
Keyword(s):  
Policy Space ◽  
Eu Policy ◽  
The Eu

Do investor-to-state dispute settlement mechanisms fit in the EU legal system?

elni Review ◽  
2014 ◽  
pp. 30-38
Author(s):  
Andrea Carta
Keyword(s):  
Dispute Settlement ◽  
International Investment ◽  
Eu Law ◽  
Public Authorities ◽  
Eu Policy ◽  
Exclusive Jurisdiction ◽  
Administration Of Justice ◽  
Private Investors ◽  
The Right ◽  
The Eu

Investor-to-state dispute settlement (ISDS) mechanisms are a feature of international investment agreements (IIAs). They give private investors the right to initiate a claim against the State in which they made an investment, seeking redress against violations of an IIA concluded between that State and the investor’s home State. As it is explained in this paper, the current EU policy foresees the inclusion of ISDS in EU IIAs. This raises a number of critical issues, related: i) to the appropriateness of ISDS as a mechanism for the fair administration of justice, ii) to the risks that ISDS may affect public interest (e.g. environmental and health) laws, and iii) to the compatibility of ISDS with EU law. This article describes the framework underlying the inclusion of ISDS in EU IIAs and analyses the abovementioned issues. It discusses the concerns raised, particularly by NGOs, on the potential impact of ISDS on EU and Member States’ regulatory powers. The article outlines the EU policy on ISDS, examines some critical aspects of ISDS as a mechanism for the administration of justice, using the CETA provisions as reference, and illustrates the threats posed by ISDS to environmental and health regulations. It also highlights the challenges in preserving public authorities’ regulatory space in the context of IIAs. Furthermore, this article deals with the compatibility of ISDS with the exclusive jurisdiction of the CJEU and the principle of autonomy of EU law, and concludes with some final remarks.

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