Law and Foreign Direct Investment. IES WORKING PAPER 4/2011

In this paper we examine the effect of law on foreign direct investment outflows with a specific interest in the relationship between international investment law and domestic private property laws. Our results indicate that FDI investor is indifferent to host country property rights, hence shareholder protection by law is not a significant determinant of FDI outflows. We argue that FDI, in contrast with other types of capital flows, can effectively mitigate the agency problem through majority ownership and control, hence reduce exposure to ex-post expropriation by the affiliate. On the other hand, FDI investor remains exposed to risk of expropriation by the host government and is strongly sensitive to the enforcement of law in the host country. In contrast with recent literature we conclude that there are no causal relationship between bilateral investment treaties and FDI.

The EU-China Bilateral Investment Agreement: Between High Hopes and Real Challenges. Security Policy Brief No. 68, February 2016

In 2012, negotiations over an EU–China bilateral investment agreement were launched to fully tap into the potential of bilateral investments. This policy brief gives an overview of the current negotiation process and argues that the high hopes advanced politically and economically in the agreement must be weighed against the many challenges and obstacles the negotiations face, regarding current events in EU–China relations, in global trade and investment regimes, and the limits of EU competencies. Strategically, the agreement could be important, as it offers the potential to strengthen the EU’s global economic relevance. This brief concludes that there is much to gain if the EU follows a coordinated approach and remains mindful of these (potential) obstacles.

EU Enlargement: external economic implications. Bruges European Economic Policy (BEEP) Briefing 4/2003

Unlike some previous EU enlargements (e.g. with the UK and with Spain/Portugal) the present EU enlargement to Central Europe has not prompted much, let alone a fierce, debate about the external dimension. This BEEP briefing discusses the main economic aspects of the external dimension, in particular whether there is a threat of (how much) trade diversion. Attention is paid to the three main topics of interest for third countries: industrial trade effects, impact on FDI and agricultural trade effects. Agriculture is arguably the most sensitive of the three, given the very high CAP border protection, and although large-scale trade diversion may eventually occur under certain scenarios (such as an unreformed CAP), these fears are greatly exaggerated in the short to medium term (5-7 years): the time frame considered is therefore all-important. This conclusion becomes less surprising if one takes a closer look at the current sorry state of agriculture in the CEECs. Separate sections treat the somewhat sensitive subject of U.S.-CEEC Bilateral Investment Treaties, as well as the longterm development perspective, which addresses the prospects for catch-up growth by the accession countries. In the end, non-European stakeholders in the accession process will greatly benefit from sustained catch-up growth by the CEECs, which are locking-in deep reforms due to EU accession.

Dispute Settlement Alternatives in Future EU BITS. IES WORKING PAPER 1/2012

Following the inclusion of the Common Commercial Policy in the exclusive competences of the European Union, a handful of policy adjustments have occurred. Among these adjustments, investment protection has been a remarkable one - given its new, exclusive framework and an already established, state-level practice. As the new policy stands, Bilateral Investment Treaties, which had been negotiated and executed by the EU Member States in the pre-Lisbon period, can now only be negotiated and executed by the EU. These prospective ‘EU BITs’, inter alia, aim for an even stronger mechanism for the protection of investors both in the EU and in third states. A strong protection mechanism inevitably calls for a strong Dispute Settlement Mechanism, and the establishment of a DSM may prove to be challenging. The EU currently faces several questions on its path to a tangible and reliable ‘EU BIT’, and arguably the most outstanding one is the question of the DSMs to be incorporated in these new agreements. What are the alternatives of a DSM for these new BITs? Which alternatives are currently utilizable and which ones are not? What are the current problems that the EU face, and how can those problems be tackled? Is the International Centre for Settlement of Investment Disputes an alternative, and if not, why? Following a thorough overview, this paper aims to analyse the DSM alternatives for the EU to be used in the new EU BITs and ultimately provide a solid DSM proposal.

Member State BITS after the Treaty of Lisbon: solid foundation or first victims of EU investment policy? Research Paper in Law, 02/2012

[Introduction.] This paper discusses the uncertain future of Member State BITs with third countries in the light of the developing EU investment policy. The question will be examined on the basis of the proposed Regulation establishing transitional arrangements for bilateral investment agreements between Member States and third countries presented by the Commission on 7 July 20101 and the European Parliament’s Position adopted at first reading on 10 May 2011.2 The proposed Regulation and the Commission Communication of the same day are meant to be the “first steps in the development of an EU international investment policy”.3 The first chapters present the legal framework relevant for this question and its evolution to better understand the particular challenges of this transition process. The second chapter examines the relationship of EU law and investment law, with a brief introduction of the notion of investment law and the scope of the EU’s new investment competence. The third chapter outlines the legal framework for the continuation and termination of treaties under international and EU law. The fourth chapter concerns BITs, first covering the particular nature of BITs and then the CJEU’s judgments in the BIT Cases of 2009. The fifth chapter consists of a step by step analysis of the different provisions of the proposed Regulation.