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Legal Framework of Protection of Foreign Direct Investment under Bilateral Investment Treaties and European Law
Moškvan, Dominik ; Svoboda, Pavel (advisor) ; Pítrová, Lenka (referee)
This thesis aims to analyse alleged incompatibility of bilateral investment treaties signed between the Member States of the European Union with the European Union law and its impact on the investment environment of the Union. Bilateral investment treaties are found to be incompatible with EU law. First, it is the provision allowing for dispute settlement in the form of arbitration, thereby excluding the case from EU judicial review and infringing the primacy and autonomy of EU law. Second, it is the preferential treatment of investors given only to an investor from a state with a concluded BIT conflicts the non-discrimination principle. Preferential treatment given in BITs should be either unilaterally extended, or dismissed for all investors. Unless rescinded, BITs remain valid. Investment environment of the European Union might be exposed to an increased risk of legal uncertainty. This is due to the existence of dichotomy of investment arbitration and national courts, which has not allowed for a binding interpretation of EU law since arbitration courts are not considered to be a court of a Member States with respect to the meaning of Article 267 of the Treaty on the Functioning of the European Union. Concurrence of the two parallel systems of dispute resolution does not allow for a prompt...
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Legal Framework of Protection of Foreign Direct Investment under Bilateral Investment Treaties and European Law
Moškvan, Dominik ; Svoboda, Pavel (advisor) ; Pítrová, Lenka (referee)
This thesis aims to analyse alleged incompatibility of bilateral investment treaties signed between the Member States of the European Union with the European Union law and its impact on the investment environment of the Union. Bilateral investment treaties are found to be incompatible with EU law. First, it is the provision allowing for dispute settlement in the form of arbitration, thereby excluding the case from EU judicial review and infringing the primacy and autonomy of EU law. Second, it is the preferential treatment of investors given only to an investor from a state with a concluded BIT conflicts the non-discrimination principle. Preferential treatment given in BITs should be either unilaterally extended, or dismissed for all investors. Unless rescinded, BITs remain valid. Investment environment of the European Union might be exposed to an increased risk of legal uncertainty. This is due to the existence of dichotomy of investment arbitration and national courts, which has not allowed for a binding interpretation of EU law since arbitration courts are not considered to be a court of a Member States with respect to the meaning of Article 267 of the Treaty on the Functioning of the European Union. Concurrence of the two parallel systems of dispute resolution does not allow for a prompt...
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The Interaction between Bilateral Investment Treaties and EU Law
Hrabčáková, Barbora ; Balaš, Vladimír (advisor) ; Šturma, Pavel (referee)
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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