The Division of Competences Between the EU and Its Member States in the Area of Investment Politics

Bungenberg, Marc

doi:10.1007/978-3-642-14855-2_2

Cited by 14 publications

(5 citation statements)

References 2 publications

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“…Because each Member State was negotiating on its own, it could not harness the market power of the whole EU and as a result force large economies to reciprocate by opening their own domestic market to foreign investment in return. Similarly, the EU has not been able to impose on the rest of the world its norms, values and rules for fashioning international investment regimes in a way commensurate with its place as the world's leading exporter and recipient of FDI (Bungenberg, ). Others, especially the United States, have created de facto global norms for investment agreements, which the EU could not match, whether for human rights, labour standards or sustainable development.…”

Section: Alternative Explanations For the Competence Shift In Fdi Policymentioning

confidence: 99%

“…Scholars of FDI are now busy dissecting the implications of this institutional change. Lawyers are finessing how competences are really divided between the EU and the Member States under the new regime (Bischoff, ; Bungenberg, ; Bungenberg and Reinisch, ; Ceyssens, ; Chaisse, ; Herrmann, , ; Karl, ; Krajewski, ; Reinisch, ). Economists are asking how the new competence will affect economic growth and competitiveness (Blomkvist, ; Goetz, ).…”

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confidence: 99%

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Integration by Stealth: How the European Union Gained Competence over Foreign Direct Investment

Meunier

2017

J of Common Market Studies

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How are policy competences allocated between different actors? This article contributes to the literature on institutional development through an in-depth case-study of the conditions under which the competence over the negotiation of agreements on foreign direct investment (FDI) was transferred from the national level to the European Union (EU) in the 2009 Lisbon Treaty. Most analysts assume that this competence shift was a rationally designed delegation, intended to maximize European bargaining power in international investment negotiations and conceived as an important element of a teleological drive to make the EU a meaningful external actor. This article tells a different storyone where the competence shift happened by stealth as a result of a combination of neo-functionalist Commission entrepreneurship and historical accident, against the preferences of the Member States. The article also assesses whether the conditions under which the competence was transferred have implications for the implementation of the new policy.

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Section: Alternative Explanations For the Competence Shift In Fdi Policymentioning

confidence: 99%

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confidence: 99%

Integration by Stealth: How the European Union Gained Competence over Foreign Direct Investment

Meunier

2017

J of Common Market Studies

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“…This changed formally with the 2009 Lisbon Treaty, which conferred exclusive competence over FDI to the EU. The implementation of this radical change has been very slow, in part because the general political context in Europe is not conducive to the further creep of regional integration and because member states showed little support for the competence shift (Bungenberg 2011;Meunier 2013;Niemann 2012;Reinisch 2013).…”

Section: Please Scroll Down For Articlementioning

confidence: 99%

“…Cacophony has prevented the EU from fashioning international investment regimes in a way commensurate with its place as the world's leading exporter and recipient of FDI, whether at the international, regional or bilateral level (Bungenberg 2011). Others, especially the North American Free Trade Agreement (NAFTA) countries, have created de facto global standards for investment agreements, which the EU could not match, whether for human rights, labor standards or sustainable development.…”

Section: Cacophony and Bargaining Leveragementioning

confidence: 99%

Divide and conquer? China and the cacophony of foreign investment rules in the EU

Meunier¹

2014

Journal of European Public Policy

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“…For reasons of efficiency and practicability (effet utile) the EU should possess the competence for all possible aspects of (foreign direct) investment promotion and protection', including IP rights that can be regulated at EU level without leaving the decision on what constitutes 'indirect expropriation' to the single States. 106 As far as IP is concerned, the determination of the conditions under which the expropriation of this particular type of property might take place falls within the remit of said Article. 107 The overarching observation is that even if the UK decided (and this seems politically untenable) to accept the jurisdiction of the CJEU limited to UPC decisions' review, and even if the CJEU accepted this compromise (which is highly likely to be reputed legally unfeasible), UK investors would not be protected by EU law's 'bundle of rights', but only by a one-off deference to EU law that would operate in a vacuum.…”

Section: B Unaffordable Litigation Costs: Denial Of Justice?mentioning

confidence: 99%

The Unified Patent Court and the frustrated promise of IP protection: Investors’ claims in (post-)Brexit Britain

Segate

2020

Maastricht Journal of European and Comparative Law

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Tensions between the EU’s legal order and the international investment law regime are not exclusive to the Brexit era, but they certainly gained momentum in the aftermath of this referendum. By incautiously declaring that the UK will remain a party to the Unified Patent System regardless of Brexit, the British government arguably shaped (il)legitimate expectations on the part of investors who aimed at exploiting their intellectual property rights in the UK while benefitting from the judicial protection of the forthcoming Unified Patent Court as much as of the European institutions (and market) as a whole. Indeed, not only the System itself will undergo a process of major rebalancing after London’s departure from the EU, but more importantly, the UK will most probably be unable to retain its membership in the System after the actual delivery of Brexit. These complications trigger a wide spectrum of fundamental dilemmas investing the definition and scope of concepts such as unilateral declaration, indirect expropriation, reasonable expectation, estoppel, and public policy exception, under both EU law and international investment law. It is therefore essential to explore these intersections as to anticipate possible scenarios in the event of both domestic court and international arbitral claims lodged by patent investors pre- and post-Brexit, having due regard for competition concerns on the side of the EU, yet referring to recent Canadian case law which opened the gate to investor-State claims in the field of intellectual property.

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The Division of Competences Between the EU and Its Member States in the Area of Investment Politics

Cited by 14 publications

References 2 publications

Integration by Stealth: How the European Union Gained Competence over Foreign Direct Investment

Integration by Stealth: How the European Union Gained Competence over Foreign Direct Investment

Divide and conquer? China and the cacophony of foreign investment rules in the EU

The Unified Patent Court and the frustrated promise of IP protection: Investors’ claims in (post-)Brexit Britain

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