The EU s new investment policy agenda

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1 The EU s new investment policy agenda Prof. Markus Krajewski University of Erlangen-Nürnberg ITAP UNCTAD Annual Capacity Building Program International Investment Agreements: Negotiating for Sustainable Development January 2015, Casablanca, Morocco Outline I. Development of EU investment policy II. Legal framework of EU investment agreements III. The EU s investment policy approach IV. From policy to practice: Contents of EU-Canada CETA and EU-Singapore FTA V. Future of BITs concluded by EU Member States VI. Assessment EU investment policy 2 1

2 I. Development of EU investment policy Phase 1: Separate trade and investment regimes in EC external economic policy ( ) European Community: exclusive competence for trade policy (GATT) Member States: competence for bilateral investment agreements Special case: Energy Charter as mixed agreement (EC and Member States) EC: competent for trade part Member States: competent for investment protection EU investment policy 3 Phase 2: Investment liberalisation elements in trade agreements ( ) WTO EC and Member States are WTO Members (= mixed agreement) EC partly competent for WTO s investment regime (TRIMS), but not GATS Mode 3 ( commercial presence ) EC also party of WG on Trade and Investment ( ) EU Free Trade Agreements (FTAs) chapters on investment liberalisation in FTAs include commercial presence in services and investment in goods production Examples: EU-CARIFORUM EPA (2009); EU-Korea FTA (2011); EU-Central America (2013); EU-Colombia/Peru (2013) Member states remain competent to conclude BITs EU investment policy 4 2

3 Phase 3: An emerging EU investment policy (since 2009) 2009: Entry into force of Treaty of Lisbon with EU competence regarding foreign direct investment since 2009: Negotiations on trade agreements with an investment protection chapter or investment-only agreements Adoption of legal and policy framework Draft free trade agreements with investment protection chapters with Canada (September 2014) Singapore (October 2014) EU investment policy 5 Current state of EU investment agreements Negotiations on trade agreements with investment protection with USA (Transatlantic Trade and Investment Partnership), since 2013 Morocco (Deep and Comprehensive Free Trade Agreement, DCFTA), since 2013 Negotiations on investment-only agreement (BIT) with China, since 2013 Negotiating mandates for investment agreements with further countries, but no negotiations on investment protection yet with ASEAN countries Japan Tunisia, Egypt, Jordan EU investment policy 6 3

4 State of EU investment policy (as of January 2015) EU Draft agreement on trade and investment Negotiations on investment protection as part of trade agreement Negotiations on investment agreement only Mandate for investment protection as part of trade agreement, but no negotiations yet Identified as strategic partners for future investment negotiations in 2010 status unclear Jordan Singapore Source: Own illustration based on information from EU Commission DG Trade II. Legal framework of EU investment agreements Basis in Treaty on Functioning of the European Union (TFEU) Article 206: ( ) [T]he Union shall contribute ( ) to the harmonious development of world trade, the progressive abolition of restrictions on international trade and on foreign direct investment, and the lowering of customs and other barriers. Article 207: The common commercial policy shall be based on uniform principles, particularly with regard to ( ) agreements relating to trade in goods and services, and the commercial aspects of intellectual property, foreign direct investment ( ) EU investment policy 8 4

5 Reference to FDI included through Treaty of Lisbon (2009) Competence of EU based on Article 206 and 207 TFEU Scope Foreign direct investment (FDI), not portfolio investment investment liberalisation and investment protection Nature of competence: Exclusive competence, i.e. EU Member States are not competent any more Consequence for international investment agreements (IIAs) EU only competent for FDI part of investment agreement IIAs covering FDI and portfolio investment need to be concluded by EU and Member States (= mixed agreements) EU investment policy 9 Competence based on implied powers Basis: Free movement of capital within EU also extends to third countries (Art. 63 TFEU) Article 3 (2) TFEU: competence to conclude agreements when necessary to exercise its internal competence EU Commission : implied powers enables EU to conclude IIAs covering portfolio investment Open question: Basis of future EU agreements with comprehensive investment protection mixed agreements (i.e. Member States and EU) or exclusive explicit and implied EU competence? Decision will be given by European Court of Justice (Commission will request opinion based on EU-Singapore agreement) EU investment policy 10 5

6 Legislation Regulation (EU) No. 1219/2012 of 12 December 2012 establishing transitional arrangements for bilateral investment agreements between Member States and third countries Regulation (EU) No. 912/2014 of 23 July 2014 establishing a framework for managing financial responsibility linked to investorto-state dispute settlement tribunals established by international agreements to which the European Union is party Policy document EU Commission Communication: Towards a comprehensive European international investment policy, COM(2010)343 final EU investment policy 11 III. The EU s investment policy approach Definition based on jurisprudence of European Court of Justice FDI establish or maintain lasting and direct links between persons providing capital and companies to carry out an economic activity shares held by the shareholder that enable him to participate effectively in the management of that company or in its control Portfolio investment = acquisition of shares on the capital market solely with the intention of making a financial investment without any intention to influence management and control of undertaking Similar to internationally agreed concepts EU investment policy 12 6

7 Overall objective: comprehensive investment policy framework combine trade and investment aspects in one policy use integrated agreements (covering post- and preestablishment) streamline divergence of Member States BITs to protect competition between EU investors in third countries Subsidiarity of EU policy Agreements with strategic partners as seen in 2010 Short term: Canada, India, Singapore, Mercosur Short to medium term: China, Russia Perspectives have changed since 2010: now also US, Japan EU investment policy 13 Contents of EU investment agreements built on best practices of Member States typical standards of protection (non-discrimination, FET, full protection and security) but: balancing investor protection with pursuit of public policy objectives Guidance by values of EU external policies (i.e. human rights and sustainable development) Including investor-state dispute settlement with special regard to Transparency Consistency of interpretation Conduct of arbitrators EU investment policy 14 7

8 IV. From policy to practice: Contents of EU- Canada CETA and EU-Singapore FTA Definition of investment every kind of asset which is owned, directly or indirectly or controlled, directly or indirectly by investors of one Party in the territory of the other Party, that has the characteristics of an investment, including such characteristics as the commitment of capital or other resources, the expectation of gain or profit, the assumption of risk, or a certain duration (EU-Singapore FTA) includes property, enterprise, shares, stocks, bonds, concessions, claims to money, contracts, intellectual property rights EU investment policy 15 Definition of investor Natural or juridical person constituted in accordance with law of one of the parties branches or representative offices are not considered investors requires substantive business operations in the territory of one of the Parties letter-box companies are not considered investors Scope of investment protection investment made in accordance with the applicable law at that time National treatment does not apply to subsidies and to government procurement EU investment policy 16 8

9 Standards of treatment Fair and equitable treatment with list of prohibited measures Full protection and security limited to physical security National treatment Most favoured nation treatment (EU-Canada CETA only) Umbrella clause in EU-Singapore FTA only limited to specific commitments in contract EU investment policy 17 Fair and equitable treatment (FET) Denial of justice in criminal, civil or administrative proceedings; Fundamental breach of due process, including a fundamental breach of transparency; Manifest arbitrariness; coercion, duress and harassment; targeted discrimination on manifestly wrongful grounds, such as gender, race or religious belief (EU-Canada CETA only) Breach of legitimate expectations based on specific representation constitutes breach of FET (EU-Singapore FTA) may be taken into account by tribunal (EU-Canada CETA) EU investment policy 18 9

10 Indirect expropriation substantial deprivation of the attributes of property detailed step-by-step analysis to determine whether an indirect expropriation has taken place sole fact that a measure increases costs for investors not in itself expropriation legitimate public policy measures taken to protect health, safety or environment are not indirect expropriation, except if they are manifestly excessive in light of their objective. issuance of compulsory licences in accordance with WTO provisions guaranteeing access to medicines not expropriation. EU investment policy 19 Investor-State Dispute Settlement (ISDS) Exhaustion of local remedies not required No parallel proceedings in domestic courts and ISDS claims in domestic courts need to be withdrawn and cannot be commenced if investor choses ISDS in EU-Canada CETA restricted to claims for compensation and damages in domestic court (i.e. claims for annulment of action can be pursued parallel to ISDS) If arbitrators are not chosen by parties within certain time period, they will be chosen from a roster jointly decided by parties binding Code of Conduct for arbitrators (only in EU-Singapore FTA) EU investment policy 20 10

11 ISDS (continued) protection against frivolous claims through quick rejection if case is manifestly without legal merit if tribunal cannot rule in favour of investor even if alleged facts are assumed to be true (claim unfounded as a matter of law) protection against unfounded claims: losing party bears the costs Transparency: UNCITRAL 2013 rules apply all documents will be public all hearings open interested parties (NGO s) can make submissions mechanisms for the parties to the agreement to issue binding interpretations EU investment policy 21 V. Future of BITs concluded by EU Member States Current legal situation Member states have no longer competence to negotiate and conclude agreements in investment protection BITS signed by Member states before 1 December 2009 remain in force under general public international law (pacta sunt servanda) are compatible with EU law if notified to the Commission: Article 3 Regulation 1219/2012 Member States may amend existing or conclude new BITs under certain conditions (Art. 7 Regulation 1219/2012) EU investment policy 22 11

12 Conditions for future Member States BITs since 2013 (Art Regulation 1219/2012) Negotiations notified to Commission Authorisation to negotiate by Commission shall be given unless against EU law or policies Consultation and potential participation of Commission Authorisation to sign agreement by Commission unless against EU law and policies Member States BITs signed between 2010 and 2013 shall be reviewed by Commission EU investment policy 23 Member States BITs notified to the Commission (as of 2013) MT EE CY SI LV LT SK GR HU PL PT DK AU BG CZ SW FI RO ES BE FR NL UK IT GE EU investment policy 24 12

13 Impact of EU negotiations with third country on existing BITs of EU Member States with same country Member States may no longer amend BITs once EU agreement enters into force Member State BIT violates EU law ( termination of agreement required by EU law) But: Third country BIT with EU Member States remain in force under public international law until terminated Claims by investors can be based on BIT with Member State until terminated and no extension of protection after termination EU investment policy 25 VI. Assessment New EU approach attempts to balance investor protection with regulatory autonomy EU investment agreements may differ between countries Power imbalance greater or smaller when negotiating with EU on trade and investment agreement compared to negotiations with individual Member State on BITs? EU investment policy 26 13

14 Questions and answers Thank you very much for your attention! Contact: 14

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