Suchergebnisse

Following the Lisbon changes to the EU's Common Commercial Policy (CCP), the path was set for the EU to conclude international agreements that cover the protection of foreign direct investment and to participate in international investment law (IIL) as a creator and promoter of norms. Nonetheless, recent political and legal events might jeopardize the workability and coherence of the emerging EU investment law and policy. In light of this, this article first aims to contribute to the existing discussion on the ways in which the EU can export its norms externally and provides a conceptual understanding of the often-used term of 'convergence' and how the EU might induce some level of convergence of IIL norms. Secondly, the article has a sceptical undertone as to whether the EU can become an IIL rule-promoter and whether it can induce some level of convergence of IIL norms. Whilst the possibility is there, the multilateral and diffused nature of investment law, the presence of strong international actors with their own agendas, the domestic contestation of investor-state dispute settlement, and the important role of the Court of Justice might hamper the EU's attempt to become a major influencer of IIL norms

In the much-awaited Achmea judgment (of 6 March 2018, case C-284/16 [GC]), the Court of Justice held that investor-state tribunals (ISTs), "such as" the one under the Netherlands-Slovakia intra-EU bilateral investment treaty (BIT) are incompatible with EU law. In this arguably short judgment, the Court of Justice consolidated its attitude towards the relationship between other international courts and the EU legal order; it set new limits to Art. 344 TFEU; and, it expanded its list of tribunals that do not qualify as Member State courts or tribunals under Art. 267 TFEU. Nonetheless, whilst the Commission can rejoice that it can now clearly oblige Member States to terminate their intra-EU BITs, Achmea sends some worrying signals. The future of ISTs under Member State BITs with third countries is uncertain; so is the viability of the Investment Court System under the agreements with Canada and Vietnam, the future of the Multilateral Investment Court, and the overall coherence of the EU's international investment law and policy.