Just a little bit of “mixity”? The EU’s role in the field of international investment protection law

Abstract

With the entry into force of the Lisbon Treaty, the Common Commercial Policy (CCP) has been extended to foreign direct investment (FDI). However, the scope of these (exclusive) competences under the CCP is limited and thus does not pertain to all issues governed by contemporary bilateral investment treaties (BITs). Rather, the competences for such BITs are mixed. Therefore, future agreements will have to be concluded by the EU and the its Member States together unless the EU is prepared to exclude the protection of certain investments from its agenda. But mixed agreements on investment protection cause complications concerning their conclusion and implementation. Until a satisfying EU investment regime is set up, investments by nationals of the EU Member States will have to be protected by the Member States' BITs. The Member States of the EU have concluded a large number of bilateral and also multilateral investment agreements governing the protection of investments made. Nevertheless, the existing Member States' BITs are affected by the transfer of exclusive competences for FDI to the EU. Generally, the Member States will have to terminate these agreements. To avoid such severe consequences, the European Commission proposed a Regulation establishing a transitional regime that allows the Member States to maintain their existing BITs concluded with third countries or even to conclude new BITs. Such a transitional regime is essential for the protection of investments by EU nationals. However, the Regulation Proposal adopted by the Commission is badly drafted and can only be considered a first step towards such an instrument.