The growing pains of actorness: the European Union in global investment governance

Figures & data

Figure 1. Mean SRS – IIAs signed by five EU Countries, 1990–2000.

Figure 2. SRS for model BITs and IIAs signed by four EU member states.

Figure 3. Annual three-year moving average of SRS in IIAs signed by member states, the EU, and the rest of the world.

Figure 4. SRS in CETA, CPTPP, 2015 Brazil model BIT, and 2015 India model BIT.

Table A1: Coding state regulatory space in IIAs: Variables, dimensions and categories.

Variable	Dimension	Category
SRS Substantive	I. Preamble	1.Preamble
	II. Scope and Definitions	2. Definition of Investment
		3. Definition of Investor
		4. Limiting Substantive Scope
	III. Non-Discrimination and other Standards of Treatment	5. Most Favored Nation
		6. National Treatment
		7. Fair and Equitable Treatment
		8. Full Protection and Security
		9. Prohibition on Unreasonable, Arbitrary and Discriminatory Measures
	IV. Expropriation and other Substantive Obligations	10. Expropriation
		11. Compensation
		12. Prohibition on Performance Requirements
		13. Umbrella Clause
		14. Entry and Sojourn of Personnel
		15. Senior Management and/or Boards Mandatory Clause
		16. Free Transfers
		17. Subrogation Clause
		18. Non-Derogation Clause
	V. Good Governance	19. Good Governance
	VI. Flexibility	20. Denial of Benefits
		21. Scheduling & Reservations
		22. Essential Security Exception
		23. Public Policy Exceptions
		24. Prudential Carve-Outs
		25. Right to Regulate
	VII. Institutional Issues and Final Provisions	26. Mechanism for Consultations between State Parties
		27. Institutional Framework
		28. Limiting Temporal Scope of IIA
		29. Pre-existing Disputes Covered
		30. Treaty Duration
		31. Automatic Renewal
		32. Modalities for Denunciation
		33. Length of Survival Clause
SRS ISDS	VIII. Procedural Provisions	34. Alternatives to Arbitration
		35. Scope of Claims
		36. Limitation on Provisions Subject to ISDS
		37. Limitation on Scope of ISDS
		38. Type of Consent to Arbitration
		39. ISDS Rules: Domestic Courts Forum Selection
		40. Particular Features of ISDS
		41. Interpretation
		42. Transparency of Arbitral Proceedings

Table A2: Key events – EU IIA policies, 2007–2020.

Event	Date	Significance
Lisbon amendments signed	13 December 2007	Agreement to inclusion of foreign investment in EU Common Commercial Policy indicating exclusive competences.
Vattenfall AB and others v. Federal Republic of Germany, lCSID Case No. ARB/09/6 – Notice of Arbitration under ECT and ICSID	2 April 2009	High profile intra-EU ISDS case concerning local government permits for a coal-fired power plant. The claim for 1.4 Billion USD was settled for an undisclosed amount.
TFEU enters into force	Dec. 1, 2009	EU gains competences in foreign investment regulation.
Vattenfall AB and others v. Federal Republic of Germany, ICSID Case No. ARB/12/12 – Notice of Arbitration under ECT and ICSID.	May 31, 2012	High profile intra-EU ISDS case concerning phasing out of nuclear power plants by Germany. The claim for 4.7 Billion Euro is still pending in various proceedings.
EU Regulation No. 1219/2012 establishing transitional arrangements for bilateral investment agreements between MS and third countries	12 Dec., 2012	Assertion of EU competence – regulation requiring EC approval for new and extended BITs between MS and third countries.
Erbil Serter v. France, ICSID Case no. ARB/13/22 – Notice of Arbitration under ICSID and Turkey-France BIT.	Sep. 10, 2013	First significant extra-EU arbitration filing against EU host-state. The case was discontinued but provides a benchmark for subsequent extra-EU cases against EU host-states.
EU-Singapore FTA Investment Chapter negotiations concluded.	Oct., 2014	First IIA concluded under EU competence.
EC Concept Paper on ‘Investment in TTIP – The Path Beyond’	12 Nov., 2015	Policy statement of EC on ISDS in TTIP/CETA, replacing ad hoc arbitration with an investment court.
Charanne and Construction Investments v. Spain, SCC Case No. V 062/2012.	Jan. 21, 2016	First of numerous (mainly intra-EU) ECT-based award relating to renewable energy subsidy withdrawals.
CETA signed, including investment chapter; Walloon Parliament withholds approval of Belgium’s ratification of CETA	Oct., 2016	Reflecting local concerns about ISDS and SRS.
CJEU Opinion 2/15 regarding EU-Singapore FTA issued	16 May, 2017	Finding that some elements of investment in IIA (‘non-direct investment’) are not under exclusive EU competence.
UNCITRAL grants mandate to UN WGIII on ISDS reform	July, 2017	Commencement of new global forum for discussion of ISDS reform.
Belgium files request for CJEU Opinion 1/17 regarding CETA	Sep., 2017	Significant legal issue regarding compatibility with EU law of the Investment Court System in CETA, which is a blueprint for the EU proposed Multilateral Investment Court.
CJEU Achmea Ruling	March 6, 2018	Ruling by CJEU whereby intra-EU IIAs are incompatible with EU law and must be terminated.
UN WGIII 2nd Session on ISDS Reform	23–27 April 2018	EU submits detailed interventions for discussion.
Joint Declarations on Termination of Intra-EU IIAs	January 15–16, 2019	Development of EU approach to implement Achmea ruling towards termination of intra-EU IIAs
CJEU Opinion 1/17 on CETA issued	April 30, 2019	CJEU determines that the ISDS model in CETA – the Investment Court System – is compatible with EU law, subject to conditions.
Treaty on Termination of Intra-EU BITs	May 5, 2020	Application of Achmea ruling regarding intra-EU IIAs, not covering ECT and not adopted by all EU Member States
CJEU judgment on Republic of Moldavia v. Komstroy LLC, Case C-741-19.	Sept. 2, 2021	Following the logic of Achmea, finding that ECT does not apply to intra-EU disputes.