CYIL 2015

317

POSTǧLISBON EXERCISE OF EU COMPETENCE IN THE FIELD OF FOREIGN INVESTMENT…

de la Sorbonne (IREDIES), of the French Society for International Law, and of the

Czech Society for International Law.

Introduction

After some teething troubles following the entry into force of the Lisbon Treaty,

which expanded the exclusive competence of the European Union

in the field of

common commercial policy (“CCP”)

to also encompass regulation of foreign direct

investment (“FDI”), the Union has taken its first steps within this newly tailored legal

framework. These steps combine internal European-law measures with international

action. Such a two-pronged approach is indeed necessary, given that the Union is

entering territory that has been long chartered mainly by the Member States and also

considering the fact that while the Union is progressively moving in, the Member States

are not necessarily moving out. The new EU regulatory engagement thus focuses not

only on the negotiation of new agreements with third countries, which brings the new

EU competence to its fullest potential, but has also sought to define the appropriate

EU-law status for existing agreements in the field of FDI between the Member States

and third countries (“extra-EU BITs”). It has also clarified intra-EU apportionment of

financial responsibility that may arise under the investor-to-state dispute settlement

(“ISDS”) mechanisms provided for in the international instruments to which the

Union is party or which it may conclude in the future. It goes without saying that

many aspects of this complex “intra-extra” EU regulation have never been tested and

remain challenging, as evidenced by the Commission’s recent decision to turn to the

Court of Justice of the European Union (“CJEU”) to clarify the “uncertainties” that

the scope of the post-Lisbon competence of the Union is raising.

Because this paper deals with investment-related European and international

regulation as affected by the post-Lisbon definition of the CCP and because the latter

is linked to the

external

facet of EU action, it will leave aside the (no less intriguing)

intra-EU

aspects of protection of investment. These relate to the EU internal market

and, notably, to several dozens of bilateral investment treaties reported to exist between

some of the EU Member States (“intra-EU BITs”).

As early as 2006, the European

See Art. 3 (1) TFEU for the (non-exhaustive) list of fields falling under EU-exclusive competence.

Art. 207 (1) TFEU.

Commission decision of 30 Oct. 2014 requesting an opinion of the CJEU pursuant to Article 218(11)

TFEU on the competence of the Union to sign and conclude a Free Trade Agreement with Singapore,

C(2014) 8218 final. At the time of writing, the request had not appeared on the CJEU’s docket yet.

Several intra-EU investment arbitrations (based on an intra-EU BIT or on the Energy Charter Treaty)

have dealt with EU-law aspects. These are not addressed in this paper. See esp.

Eastern Sugar B.V v.

Czech Republic

, partial award, 27 Mar. 2007, SCC No.

88/2004, UNCITRAL

ad hoc

arbitration;

Ioan Micula, Viorel Micula, S.C. European Food S.A., S.C. Starmill S.R.L. and S.C. Multipack S.R.L.

v. Romania

, decision on jurisdiction and admissibility, 24 Sept. 2008, final award Dec. 11, 2013,

ICSID ARB/05/20 (TCE);

AES Summit Generation Limited and AES-Tisza Erömü Kft v. The Republic

of Hungary

, award, 23 Sept. 2010, ICSID Case No. ARB/07/22 (ECT);

Eureko B.V. v. Slovakia

, award