Protection of foreign investment and the EU: Framework, legal risks, and first fruits

Abstract

The protection of foreign investment is undergoing profound modifications worldwide, in light of the new agreements currently under negotiations as well as the reaction of States and public opinion (for only partly coinciding reasons) to certain arbitral decisions. The synthetic model of investment agreement of European origin is being largely substituted, especially in the context of broader FTA negotiations with major or regional players, by the more analytic North American model, strong of 20 years of NAFTA experience. In its negotiations with Singapore and Canada, the EU associated to this trend, and endeavoured to build texts that are believed to represent the foundation of its international investment law policy and programme. Internal differences within the EU constitutional organs and Member States about the interpretation of the new regime of competences designed by the Lisbon Treaty have, nevertheless, stalled the process. The path to entry into force of the agreement with Singapore awaits a preliminary pronouncement of the European Court of Justice, while several Member States currently oppose that with Canada because of its Investor-State Dispute Settlement Mechanism. In the meantime, the Commission pursues negotiations with the US and China, in the attempt not to leave EU investors less protected than their counterparts, in either State.