International Investment Agreements and EU Law 2016 Copyright year 1st edition By Tomas Fecak – Ebook PDF Instant Download/Delivery: 9041168915, 978-9041168917
Full download International Investment Agreements and EU Law 2016 Copyright year 1st edition after payment
Product details:
ISBN 10: 9041168915
ISBN 13: 978-9041168917
Author: Tomas Fecak
The rapidly growing number of investors’ disputes with states and the approach of arbitral tribunals, perceived by some, whether rightly or not, as being too investor-friendly, underlie a contentious debate about the need to strike a more effective balance between investors’ rights under international investment agreements (IIAs) and the right of states to pursue legitimate regulation in the public interest. In this regard the European Union, with the exclusive external competence in foreign direct investment vested in it under the Lisbon Treaty, is emerging as the leader and driving force in the future development of international investment law. This book examines the competence of the EU to conclude investment treaties in the light of the investment protection rules of IIAs, explores how far the EU regime for cross-border investment and investors’ rights under IIAs can be considered comparable, and brings about an extensive analysis of existing agreements of Member States and their compatibility with EU law, with detailed investigation of how the potentially conflicting obligations of Member States under the two regimes can be reconciled.
International Investment Agreements and EU Law 2016 Copyright year 1st Table of contents:
Chapter 1: International Investment Agreements and EU Law: Introduction
Chapter 2: Protection of Investment in International Agreements and in EU law
2.1 International Investment Agreements
2.1.1 Scope of Application: Concepts of ‘Investor’ and ‘Investment’
2.1.1.1 Investor
2.1.1.2 Investment
2.1.2 Substantive Rights of Investors
2.1.2.1 Admission and Establishment of Investments (Entry Stage)
2.1.2.2 NT and MFN: Relative Standards of Treatment
2.1.2.3 Expropriation
2.1.2.4 FET and Full Protection and Security: Absolute Standards of Treatment
2.1.2.5 Free Transfers of Funds
2.1.2.6 Umbrella Clause
2.1.3 Settlement of Disputes between Investors and States and Remedies in International Investment Law
2.1.3.1 Mixed Investment Treaty Arbitration
2.1.3.2 Remedies
2.2 Investment and Its Protection in EU Law
2.2.1 Diffused Rules of the EU Investment Regime
2.2.1.1 In Search for Intersections
2.2.1.2 Right of Establishment
2.2.1.3 Free Movement of Capital
2.2.2 Notion of Investment as an Interest Protected under EU Law
2.2.2.1 Investments within the Scope of the Free Movement of Capital
2.2.2.2 Direct Investment and the Exercise of the Right of Establishment
2.2.2.3 Cross-Border Element
2.2.3 Ambit of Protection under Internal Market Rules: A Theoretical Framework
2.2.4 Specific Examples from the CJEU’s Case Law
2.2.4.1 Acquisition, Disposal, and Enjoyment of Property
2.2.4.2 Company Law and the ‘Golden Shares’ Cases
2.2.4.3 Direct Taxation
2.2.4.4 Free Movement of Capital and Third Countries
2.2.5 General Principles of EU Law
2.2.5.1 Application of the General Principles to Member States’ Measures
2.2.5.2 Principle of Proportionality
2.2.5.3 Principle of Legal Certainty and Protection of Legitimate Interests
2.2.5.4 Right to Property
2.2.5.5 Procedural Rights
2.2.6 Procedural Issues and Remedies Available to Individuals
2.2.6.1 Getting the Individual Involved: Doctrines of Direct Effect and Supremacy of EU Law
2.2.6.2 Decentralized Enforcement of EU Law and Procedural Autonomy of Member States
2.2.6.3 The CJEU’s Role in the Process of Individual Enforcement of EU Law: Preliminary Reference Procedure
2.2.6.4 State Liability for Breaches of EU Law and Compensation for Damage
2.2.6.5 Review of EU Measures and Liability of the EU for Damage Caused to Individuals
2.3 EU Regime for Investment and IIAs: A Comparison
2.3.1 Objectives
2.3.2 Legal Interests Protected and Scope of Application
2.3.3 Substantive Rules
2.3.4 Procedural Aspects and Remedies
2.3.5 Conclusion
2.4 Potential Conflicts between IIAs and EU Law
2.4.1 Sources, Character, and Context of Potential Conflicts
2.4.2 Conflicts in Competence
2.4.3 Incompatibilities of Substantive Provisions
2.4.3.1 Free Transfers of Funds in Connection with Investments
2.4.3.2 Unqualified MFN and NT Obligations
2.4.3.3 Specific Incompatibilities the IIAs Based on the American Model: Admission of Investment and Performance Requirements
2.4.3.4 Potential Impact of IIAs on the Regulatory Measures Adopted by the EU and Their Implementation by Member States
2.4.4 Discrimination on Grounds of Nationality
2.4.5 Jurisdictional Conflicts
2.4.5.1 EU Law and Commercial Arbitration: An Indifferent Relationship
2.4.5.2 Investment Treaty Arbitration and Commercial Arbitration as Equivalents?
2.4.5.3 Resistance of the CJEU to Settlement of Disputes within the Scope of EU Law before Other Fora
Chapter 3: EU Investment Agreements
3.1 Treaty of Lisbon: Foreign Direct Investment as the Part of the Common Commercial Policy
3.2 External Competence of the Union: An Excursus
3.2.1 Common Commercial Policy
3.2.2 Implied Powers
3.2.3 Association Agreements
3.2.4 Theory and Practice of Mixed Agreements
3.3 EU and Foreign Investment before the Treaty of Lisbon
3.3.1 Limited External Competence of the Union
3.3.2 Treaty Practice
3.4 Competence of the Union after the Entry of the Lisbon Treaty into Force
3.4.1 Policy Arguments for the Transfer of the External Competence to the Union
3.4.2 The Scope of the Union External Competence: Foreign Direct Investment and Other Forms of Investment
3.4.2.1 Notion of Direct Investment and Distinction from Other Forms of Investment
3.4.2.2 Implied External Competence for Portfolio Investment?
3.4.2.3 Investment in Form of Contractual Rights and Public Law Licenses
3.4.3 Foreign Direct Investments: Rules and Measures Covered by the Common Commercial Policy
3.4.3.1 Starting Point: Parallelism of Internal and External Powers versus Common Commercial Policy as a Dynamic Concept
3.4.3.2 Liberalization or Post-establishment Protection?
3.4.3.3 Article 207(6) TFEU: Different Interpretations and Likely Meaning
3.4.3.4 Entry Stage
3.4.3.5 Post-establishment Stage: Relative Standards of Treatment
3.4.3.6 Post-establishment Stage: Absolute Standards of Treatment
3.4.3.7 Protection against Direct Expropriation and Article 345 TFEU
3.4.3.8 Investor-to-State Dispute Settlement Mechanism
3.4.4 Mixed Agreements as a Necessity?
3.5 Responsibility for Breaches of Investors’ Rights and Procedural Issues
3.5.1 Setting the Scene
3.5.2 Responsibility for Breaches of International Agreements Concluded by the Union: General Issues
3.5.3 Regulation on Financial Responsibility
3.5.3.1 Subject Matter and Basic Principles of the Regulation
3.5.3.2 International Responsibility of the Union and the Scope of Application of the Regulation
3.5.3.3 Mechanism for Allocation of Financial Responsibility
3.5.3.4 Conduct and Management of Disputes
3.5.3.5 Settlement
3.5.3.6 Payment of Final Awards and Settlements
3.5.3.7 Overall Appraisal of the Regulation
3.6 Shaping the New Union International Investment Policy
3.6.1 Policy Challenges for the New EU Investment Agreements
3.6.2 Changing Approach of Some Developed Third Sates to International Protection of Investment
3.6.2.1 NAFTA States
3.6.2.2 Australia
3.6.2.3 Norway
3.6.3 Inter-Institutional Trialogue between the Commission, the Council and the Parliament
3.6.3.1 Communication of the Commission: Towards a Comprehensive European International Investment Policy
3.6.3.2 The Council Conclusions on a Comprehensive European International Investment Policy
3.6.3.3 European Parliament Resolution on the Future European International Investment Policy
3.6.3.4 Commission’s Follow Up to the Parliament Resolution
3.6.3.5 Adjusted Position of the Commission: Fact Sheet on Investment Protection and ISDS in EU Agreements
3.6.3.6 Appraisal of the Discussion
3.6.4 Reflection in the Ongoing Negotiations with Third Countries
3.6.4.1 TTIP and Negotiations with Other Countries: The Laboratory of the New EU International Investment Policy
3.6.4.2 Investment in the Negotiated Texts of CETA and FTAs with Singapore and Vietnam
Chapter 4: IIAs between EU Member States and Third Countries
4.1 Status of BITs Concluded between EU Member States and Third Countries: Introductory Remarks
4.2 Member States’ International Agreements with Third Countries and Their Relationship with EU Law
4.2.1 Perspective of General International Law: The Pacta Tertiis Principle
4.2.2 EU Law Perspective: Meaning, Scope, and Limits of Article 351 TFEU
4.2.2.1 Article 351 TFEU: A Special Rule of EU Law for Pre-accession International Agreements of Member States
4.2.2.2 Paragraph 1: Priority of Incompatible Pre-accession Agreements
4.2.2.3 Paragraph 2: Duty of Member States to Eliminate Incompatibilities of Pre-accession Agreements with EU Law
4.2.2.4 Status of Incompatible Post-accession Agreements
4.2.2.5 Incompatibilities Resulting from Changes in Allocation of Competence or from Exercise of Competence by the Union
4.3 Compatibility of the Member States’ IIAs with EU Law and Article 351 TFEU
4.3.1 Memorandum of Understanding: A Political Solution for the BITs of the New Member States with the USA
4.3.1.1 The Content of the Memorandum
4.3.1.2 Significance of the Memorandum
4.3.2 Incompatibility of the Free Transfer of Payments Clauses in the CJEU’s Case Law (Commission v. Austria, Sweden, and Finland)
4.3.2.1 The Cause of Action and the Parties’ Pleadings
4.3.2.2 Opinion of AG Maduro
4.3.2.3 Decision of the Court
4.3.2.4 Commentary
4.3.3 Priority of the Member States’ Pre-accession BITs with Third Countries (Commission v. Slovakia)
4.3.3.1 The Cause of Action and the Parties’ Pleadings
4.3.3.2 Opinion of AG Jääskinen
4.3.3.3 The Court’s Decision
4.3.3.4 Commentary
4.3.4 Status of Incompatible BITs Concluded by Member States after Their Accession to the EU
4.4 Treaty of Lisbon, Exclusive Competence of the EU and the Future of the Existing Third-Country IIAs
4.4.1 New Exclusive External Competence of the EU and Existing Member States’ BITs
4.4.2 Transitional Regime for the Existing BITs with Third Countries: Regulation No. 1219/2012
4.4.2.1 The Commission Proposal and the Authorization Concept
4.4.2.2 Regulation No. 1219/2012
4.4.3 External Dimension of the ECT
Chapter 5: Intra-EU International Investment Agreements
5.1 Intra-EU IIAs: Between Law and Politics
5.1.1 Desirable Complement or Anomaly within the Internal Market?
5.1.2 Legal Questions of Intra-EU IIAs
5.2 Various Aspects of Interplay between Intra-EU IIAs and EU Law
5.2.1 General International Law Perspective: Rules on Conflicts of International Treaties
5.2.1.1 Incompatibilities between Intra-EU BITs and EU Law Seen as Conflict of International Treaties
5.2.1.2 Article 59 VCLT: Implicit Termination of an Earlier Treaty
5.2.1.3 Article 30 VCLT: Partial Incompatibility of Treaties
5.2.1.4 When the Treaties Relate to the‘Same Subject Matter’?
5.2.2 EU Law Perspective: Supremacy Over Inter Se International Treaties of Member States
5.2.3 From the Conflict of Norms to the Conflict of Perspectives: To What Extent Is the International Law Perspective (In) Compatible with the EU Law Perspective?
5.2.4 ECT: Specific and (Particularly) Complicated Case
5.2.5 Duty of Arbitral Tribunals to Apply EU Law
5.2.5.1 Law Applicable in Investment Treaty Arbitration
5.2.5.2 Role of EU Law in Investment Treaty Arbitration
5.2.6 Possibilities for Review of Arbitral Awards in Terms of Their Compatibility with EU Law
5.2.6.1 ICSID Arbitrations
5.2.6.2 Non-ICSID Arbitrations
5.2.6.3 Union Public Policy: The Eco Swiss Doctrine and Its Weaknesses
5.3 Intra-EU IIAs from the International Law Perspective: The Key Arbitral Awards
5.3.1 Intra-EU BITs Are Valid and Applicable (Eastern Sugar v. Czech Republic)
5.3.1.1 Arguments of the Czech Republic
5.3.1.2 The Commission’s Letter and the Reaction of the Tribunal
5.3.1.3 The Tribunal’s Analysis on Jurisdiction
5.3.1.4 Applicable Law and the Decision on Merits
5.3.2 Staying the Course (Eureko v. Slovakia)
5.3.2.1 Arguments of Slovakia
5.3.2.2 Observations of the Netherlands Government
5.3.2.3 Observations of the Commission
5.3.2.4 The Tribunal’s Analysis
5.3.2.5 Development of the Dispute after the Award on Jurisdiction
5.3.3 Applicability of the ECT between Member States and the Role of EU Law (Electrabel v. Hungary)
5.3.3.1 Introduction
5.3.3.2 Applicable Law
5.3.3.3 Jurisdiction
5.3.3.4 Decision on Merits
5.3.4 Commentary to the Tribunals’ Decisions
5.4 Intra-EU IIAs from the EU Law Perspective
5.4.1 Discrimination on Grounds of Nationality
5.4.2 Intra-EU Investment Arbitrations, Autonomy of EU Law and Exclusive Jurisdiction of the CJEU
5.4.2.1 Exposition of the Problem
5.4.2.2 International Dispute Settlement Mechanisms in the Intra-EU Context and the CJEU
5.4.2.3 Possibility for Tribunals to Make Preliminary References to the CJEU as the Solution?
5.4.3 Intra-EU Investment Arbitrations and Mutual Trust between Member States
5.4.4 Conclusion: Are Intra-EU IIAs Compatible with EU Law?
5.5 Where Do We Go from Here?
5.5.1 Infringement Proceedings and Sequel of the Eureko/Achmea v. Slovakia Arbitration: The Gateways for the CJEU
5.5.2 The Consequences of Eventual Incompatibility of Intra-EU BITs with EU Law
5.5.3 Are Intra-EU BITs Appropriate Instruments for Protection of EU Investors?
People also search for International Investment Agreements and EU Law 2016 Copyright year 1st:
unctad international investment agreements navigator
arbitration under international investment agreements
intellectual property objectives in international investment agreements
essential security interests in international investment agreements
unctad series on issues in international investment agreements