Vztah bilaterálních investičních dohod a práva EU

Hrabčáková, Barbora

Interaction between Bilateral Investment Treaties and EU law A major change in the regulation of foreign investments is underway in the European Union involving a transfer of (certain) competences within the field from Member States to the EU, all being a part of a wider initiative with the ultimate goal of establishing a common European investment policy, which, it is argued, might eventually replace the network of bilateral investment treaties concluded between Member States and third countries. Starting with the entry into force of the Lisbon Treaty, the EU is exclusively competent to regulate extra-EU foreign direct investments since the term "foreign direct investment" was introduced in Article 207 (1) TFEU dealing with the common commercial policy, in which, in accordance with Article 3 (1) (e) TFEU, the EU shall have exclusive competence. Even though the wording is seemingly simple, certain issues, especially concerning the scope of the new EU competence, have been raised and are still not settled. First, the issue of the scope of forms of foreign investments which are to be covered by the EU regulation is unclear. It has been argued that the exclusive competence extends only over direct investments, while other forms, if they are to be covered, would fall under shared competence. This would result...

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