The EU on the Investment Path – Quo Vadis Europe? The Future of EU BITs and Other Investment Agreements

Abstract

Immediately after the entry-into-force of the Lisbon Treaty in December 2009, which inserted FDI into the framework of the existing Common Commercial Policy, the debate focused on the scope of the new investment power and its implications for the practice of EU treaty-making, whether the “new” EU investment power was limited to questions of market access, and whether future EU investment treaties would contain investor-state dispute settlement provisions. Meanwhile the EU Commission has strongly asserted its FDI powers under Article 207(1) TFEU and plans to conclude treaties that cover the entire range of issues currently addressed in EU Member State BITs. In July 2010, the Commission issued a Communication on a European investment policy which has been widely discussed since. This article will discuss the potential shape of future EU investment treaties as far it can be already discerned and it will also address the power struggle between the Member States and the Union.