The European Union and the space-time continuum of investment agreements

Abstract

The 2009 Lisbon Treaty transferred the competence over Foreign Direct Investment policy from the national to the supranational level. This article analyses the impact of this transfer on the content of international investment agreements and, more broadly, the shape of the investment regime complex. Is the competence shift expected to have an independent impact or simply reproduce and continue existing trends? Exploring these two conjectures through a combination of text analysis, primary materials, and interviews, we are making a Historical Institutionalist argument focusing on the timing and sequencing of international investment negotiations. While the competence shift has allowed the EU to innovate in developing its own approach to negotiating international investment agreements, notably with the proposal to create an Investment Court System, the novelty may be only at the surface as the constraints of past, current, and future negotiations restrict the options available to EU actors – we call this the space-time continuum. The result of this learning-and-reacting process is a new European approach which simultaneously duplicates and innovates and could eventually favour greater centralisation within the investment regime complex.

Keywords:

• Dispute settlement
• European Union
• FDI
• investment
• ISDS

Acknowledgements

We wish to thank Finn Laursen, Christilla Roederer-Rynning, Alasdair Young and two anonymous reviewers for comments on an earlier version of this paper.

Notes

1. Consolidated version of the TFEU – Part Five: External Action by the Union – Title II: CCP – Article 207 (ex Article 133 TEC).

2. Yet, Elkins, Guzman and Simmons have found that investment agreements ‘are significantly more likely to be signed during years in which signatory states appear to be benefiting (in terms of FDI) from the treaties than when they are not’ (2006, 840). See also Büthe and Milner (2014) on the link between treaty design and investment flow.

3. Bulgaria, 1992; Croatia, 1996; Czech Republic, 1991; Estonia, 1994; Latvia, 1995; Lithuania, 1998; Poland, 1990; Romania, 1992; Slovak Republic, 1991.

4. Personal author interview with Vietnamese official, August 2016.

5. EU-Vietnam Free trade agreement, agreed text as of January 2016, Article 15 of the investment chapter.

6. Annex 8-E.