Following the entry into force of the Lisbon Treaty on December 1, 2009, the European Union (EU) got its scope of competences in the matter of commercial policy broadened so far as to include the topic of foreign direct investments. Notwithstanding the correct delimitation of the EU exclusive competence over investment matters is still discussed between the EU and its Member States (see De Luca, “The Legal Framework for Foreign Investments in the EU: The EU Internal Market Freedoms, the Destiny of Member States’ BITs, and Future European Agreements on Protection of Foreign Investments”, in L. Trakman & N. Ranieri, Regionalism in International Investment Law, Oxford University Press, 2013, pp. 120-161), international treaties with non-member States dealing with foreign direct investments, therefore, now have to be negotiated and executed by the EU, and not by the individual Member States anymore.
This, indeed, is not a mere shift in competences and, on the contrary, raises the need for a reflection upon the unresolved issue of balancing between the protection of investors’ interests, on one side, and the safeguard of host States’ regulatory powers, on the other side. Besides, in light of the Treaty on the European Union, which sets forth that all external action of EU should promote principles such as democracy, the rule of law, the environment and health protection, sustainable development, the issue of how the treaties concluded with non-member States can pursue also those “non-trade” objectives arises.
These arguments were dealt with by Anna De Luca, researcher at the Law Department of Bocconi University, at a workshop held in November 2012 in The Hague under the aegis of the Asser Institute, the Centre for the Law of EU External Relations (CLEER) and the Amsterdam University, where she delivered a speech entitled “Integrating non-trade objectives in the oncoming EU investment policy: What policy options for EU?”(forthcoming in T. Takács, A. Dimopoulos and A. Ott (eds.), “Linking trade and non-commercial interests: the EU as a global role model?”, CLEER Working Papers, 2013).
In her contribution, De Luca firstly provided an overview of the indications given by the European Commission, the Council and the European Parliament regarding the principles which should guide the EU action in this new area of competence.
In particular, De Luca highlighted the convergence between the Commission and the Council on the point that the protection afforded to investors by new treaties will have to be at least equal, if not higher, to that previously afforded by treaties concluded by individual Member States, while the Parliament underlined that the treaties concluded in the past by Member States were, to some extent, too one-sided in favor of investors. Positions, then, differ also on the promotion of “non-trade” values, and it is debated whether it is opportune or not to refer to the Guidelines for Multinational Enterprises developed within the Organization for Economic Co-operation and Development (OECD).
A first example of the EU action in this field is represented by the mandate given by the Council to the European Commission for the negotiation of the treaties with Canada, India and Singapore, which gave the occasion to Anna De Luca for some considerations on the issue of the safeguard of the regulatory powers of host States, when their exercise affects investors’ interests. This subject-matter, indeed, has been quite debated, also in light of the relevant arbitral case-law, and also the issue of the protection of “non-trade” values is expected to grow intertwined with the same.