Shaping the Single European Market in the Field of Foreign Direct Investment

Shaping the Single European Market in the Field of Foreign Direct Investment

by Philip Strik

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Overview

The Treaty of Lisbon (2009) has brought foreign direct investment (FDI) within the scope of the European Union's common commercial policy (CCP). In light of this development, this book analyses the internal and external dimension of EU law and policy in the field of FDI. It takes four perspectives: (i) the operation of the internal market mechanism to direct investment; (ii) the implications of the Lisbon amendments to the CCP under Article 207 TFEU for the Union's competence and practice in the field of FDI; (iii) the interaction between EU law and Member States' bilateral investment treaties (BITs) with third countries; (iv) the interplay between EU law and BITs that are currently in force between two Member States (intra-EU BITs). The book focuses on the extent to which the European Union operates as a Single Market for EU and non-EU investors. In doing so, it analyses the EU and international regulatory framework on the admission, treatment and protection of FDI within, to and from the Single European Market. It uses close jurisprudential analysis and examines the context, purpose and evolution of EU legal integration in the field of FDI. It thereby traces the principles underlying the European international economic order in the field of FDI.

Product Details

ISBN-13: 9781509907045
Publisher: Hart Publishing
Publication date: 08/18/2016
Series: Modern Studies in European Law Series , #44
Pages: 318
Product dimensions: 6.14(w) x 9.21(h) x 0.70(d)

About the Author

Philip Strik is a Legal Adviser in the EU law team in the Ministry of Foreign Affairs of the Netherlands and a member of its Diplomatic Service. He obtained a PhD in European Law at the University of Cambridge on a Gates Scholarship and holds masters degrees in International Relations (MPhil) from the University of Oxford and in European Law (LLM) from the University of Leiden.

Table of Contents

Acknowledgments v

Table of Cases xi

Table of Legislation xix

Abbreviations xvii

1 Introduction: EU Legal Integration in the Field of Foreign Direct Investment 1

I Setting the Scene: European Integration and FDI 2

II European FDI Policies and the Liberalisation of FDI 6

III European Integration and Investment Protection 9

IV Definitions of FDI in Different Types of International Instruments 12

V International Rule-making in the Field of FDI 17

VI Scope and Structure of this Study 20

2 The Operation of the Internal Market Mechanism in relation to Direct Investment 23

I Internal Market Integration in the Field of Direct Investment 24

A Terminology and Integrative Strategy 24

B External Dimension of Articles 49/54 and 63 TFEU 30

II Admission of Third-Country Direct Investment Into the Single Market and Issues of Demarcation between Articles 49/54 and 63 TFEU 36

A A Protection-based Approach in the Application of Articles 49/54 and 63 TFEU? 36

B 'Centre of Gravity' Approach in the Application of Articles 49/54 and 63 TFEU 42

III Post-Establishment Treatment of Third-Country Direct Investment in the Single Market 50

A Rights of Intra-EU Mobility for Third-Country Direct Investors as Distinguished from their Participation in the Internal Economy of one of the Member States 51

B Scope for Inconsistencies between Article 49/54 TFEU and Relevant Union and Member State Treatment 57

IV Conclusion 65

3 The Lisbon Reform of the Common Commercial Policy: Implications for Union Competence and Practice in the Field of FDI 67

I Union External Competence in the Field of FDI Before and After Lisbon 68

A Limited Community Competence in the Field of FDI under the Pre-Lisbon Provisions on the CCP 68

B Alternative Legal Bases for Assuming Commitments with Third Countries in the Field of FDI 73

C The Lisbon Reform of the Provisions on the CCP as regards FDI 78

II Implications of the Lisbon Reform of the CCP for the Union's Treaty-making Practice in the Field of FDI 90

A Pre-Lisbon External Practice in the Field of FDI 90

B Union Treaty-making Practice in the Field of FDI in the Post-Lisbon Era 100

III The Lisbon Reform of the CCP and Inward FDI into the Single Market 120

A The Common International Investment Policy and the Initial Establishment of Third-Country Direct Investors in the Single Market 120

B The Common International Investment Policy and Secondary Rights of Mobility for Third-country Direct Investors in the Single Market 128

IV Conclusion 135

4 The Interplay between EU Law and Member State Bilateral Investment Agreements with Third Countries 137

I Member State Practice of Concluding BITs and their Substantive Interaction with EU Law 138

A Historical Background to the Conclusion of BITs by the Member States 138

B Substantive Interaction of Member State External BITs with EU Law 143

II The EU Legal Framework that Governs the Interplay between EU Law and Member State BITs with Third Countries 150

A Pre-accession BITs and Article 351 TFEU 151

B EU Law and Post-accession BITs 160

III Post-Lisbon Developments with Regard to the Member States' Practice of Concluding BITs with Third Countries 166

A The Replacement Mechanism under Regulation 1219/2012 for Existing Member State BITs with Third Countries 167

B Issues Pertaining to the Need for Authorisation to Amend Existing BITs or to Conclude New BITs 179

IV Conclusion 185

5 The Interplay between EU Law and Intra-EU Bilateral Investment Agreements 187

I Historical Background to the Phenomenon of Intra-EU BITs 188

II The EU Legal Order and Investment Protection 193

A The TFEU Freedoms and Investment Protection 194

B The EU Fundamental Right to Property 197

C The Protection of 'Legitimate Expectations' in the EU Legal Order 204

III EU Law and Intra-EU BITs: Constitutional Aspects 210

A The Validity of Intra-EU BITs is Not in Issue 210

B The Operation of the Principle of Primacy in Relation to Intra-EU BITs 214

IV Intra-EU BITs and the EU Principle of Equal Treatment 223

A Dispute Settlement under Intra-EU BITs and MFN Treatment 224

B Dispute Settlement under Intra-EU BITs and NT 229

V Investor-State Arbitration under Intra-EU BITs and the Autonomy of the EU Legal Order 237

A The Autonomy of the EU legal order 237

B EU Law in Investor-State Arbitration under Intra-EU BITs 244

VI Conclusion 249

6 Conclusion 251

I The Union's Post-Lisbon FDI Competence and its Exercise 252

II The Internal Market Freedoms and Inward FDI 254

III EU Law and Member State BITs 257

IV Future Direction of EU Legal Integration in the Field of FDI 260

Bibliography 153

Index 277

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