CYIL vol. 10 (2019)

MIRIAMA KISELYOVA CYIL 10 ȍ2019Ȏ Vietnam, which will be signed in June 2019 and can be expected to continue with other negotiating partners. However, it should be add that the omission of national parliaments from FTA ratification procedures might raise doubts in the European civil society when it comes to perceived questions of legitimacy. Also, the lines between the exclusive and shared competences might be blurred and e.g. anti-corruption and consumer protection provisions might be difficult to incorporate in FTAs due to competence issue. 10 3. Content of Investment Protection Agreement EU Singapore IPA is a balanced reformed treaty respecting the right to regulate on one hand and providing efficient investment protection on the other hand. It provides “…a careful calibration of state-investor interests and judicious application of best practices from around the world with an eye to ensuring clarity, certainty and deference to regulatory space. These also represent a concerted effort to mitigate adverse features of investor-state arbitration which undermine ISDS …” 11 The concise description and analysis below are focused on the most important provisions of EU Singapore IPA. Objective and definitions Chapter one covers the objective and general definitions. The objective 12 is “ to enhance the investment climate between the Parties in accordance with the provisions of this Agreement .” As already mentioned above, the Investment Protection Agreement was created by the separation of the investment chapter from the FTA, together with adding definitions and institutional, general and final provisions. The Investment Protection Agreement contains all features of the new EU investment policy (balanced investment protection provision, Investment Court System as a replacement of ISDS). The definition of investment is a broad, asset-based definition (“every kind of asset”) while limited by certain characteristics from the Salini test (“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”. The list of investment is open and covers also reinvested returns. The “covered investment” requires direct/or indirect ownership or control by the covered investor of one Party in the territory of the other Party. The definition of investor is excluding shell companies 13 , thus preventing treaty shopping. The definition covers both natural persons (nationals) and juridical persons of one Party that have made an investment in the territory of the other Party. Juridical persons have the condition of due constitution/registration under applicable law. “Union juridical 10 SVOBODA, Ondřej. Změny společné obchodní politiky po stanovisku Soudního dvora EU k dohodě o volném obchodu EU-Singapur, [Changes to the common commercial policy following the opinion of the EU Court of Justice on the EU-Singapore Free Trade Agreement], Acta Universitatis Cariolinae – Iuridica , No. 2, 2019, p. 101-102. For general discussion on the current state of the EU trade policy see CREMONA, Marise Shaping EU Trade Policy post-Lisbon: Opinion 2/15 of 16 May 2017, European Constitutional Law Review , Vol. 14, No. 1, 2018. 11 In AZIZ, Siraj Shaik. The Investment Protection Chapter of the EU-Singapore Free Trade Agreement: A Model for the Post-Brexit UK IIAs, 10 J. E. Asia & Int’l L. 7 (2017), p. 25. For the sake of completeness, it is important to note, however, that the author commented the text before separation from the FTA. 12 Article 1.1. 13 As to the issue of nationality planning, it is legal if it takes place before the dispute arises. As stated in DOLZER, Rudolf, SCHREUER, Christoph. Principles of International Investment Law , 2nd ed., Oxford University Press, 2012, p. 52: „practice demonstrates there are limits for it. …states may… take appropriate measures against it.“

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