8 - EU Standards in International Investment Treaties

Summary

With the foreign investment competence in the Lisbon Treaty, the EU has set an objective to develop a coherent international investment policy. This policy is now being implemented through EU (mixed) international investment agreements and the Member States’ extra-EU BITs concluded with third countries in the post-Lisbon period. Both set of agreements serve to replace or supplement the existing extensive network of pre-Lisbon extra-EU BITs of Member States. As a matter of principle, a coherent EU policy could ensure the same level of protection for all EU economic operators investing abroad, contributing to the uniformity of the Common Commercial Policy. Further, it supports the EU in the global reform of international investment governance. Ultimately, a coherent external approach of the EU and its Member States could improve consistency between the regulation of investment internally and externally, thus endorsing the EU vision of constitutionalism in international law. In this chapter we examine the extent to which the EU has achieved coherence between EU’s and Member States’ investment agreements. We analyse substantive and procedural provisions of pre- and post-Lisbon Member States’ extra-EU BITs and EU international investment agreements in light of primary EU law, the existing transitional arrangements in EU secondary law and the CJEU case-law.