chapter  14
14 Pages

The evolution of the EU investment policy since the Lisbon Treaty

From a conservative to an innovative policy?
WithLaurence Marquis

The EU investment policy has greatly evolved in close to a decade, and the greatest changes may still be to come. From its official introduction in the EU’s common commercial policy through the inclusion of “foreign direct investment” by the Lisbon Treaty, when the EU investment policy was mostly modeled on Member States’ best practices, to the introduction of a new dispute resolution model with the Investment Court System replacing arbitration in the traditional investor-State dispute settlement system, one could argue that a conservative policy has now taken an innovative turn. The Court, with recent Opinion 2/15 and Opinion 1/17, is attempting to balance the delicate equilibrium of exclusive and shared competences, as well as the compatibility of the new dispute resolution mechanism with EU law, in this field. The decision by the Council to ratify the EU-Singapore Free Trade Agreement as a mixed agreement, following Opinion 2/15’s findings that investor-State dispute settlement is a shared competence, has had an important impact on the EU investment policy. The Commission has already put in place a new measure for commercial negotiations, separating trade and investment agreements, to avoid any delays with ratification. In line with the objectives set out in Article 21 of the Lisbon Treaty, increased coherence appears to be sought in the attribution of competences, and with the roles of the European institutions. The Court’s Opinion 1/17, finally, has importantly confirmed the compatibility of the Investment Court System with the EU legal order, including fundamental rights. This chapter examines the evolutions and main events of the EU investment policy since the Lisbon Treaty, and potential upcoming challenges.