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- Amtenbrink, Fabian, et al.
(author)
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The European Union's Role in International Economic Fora - Paper 1: The G20
- 2015
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Reports (other academic/artistic)abstract
- This paper forms part of a series of nine studies on the role of the European Union in international economic fora, prepared by Policy Department A at the request of the Committee on Economic and Monetary Affairs of the European Parliament. It provides factual background information about the G20, the EU’s role and representation therein, its accountability as well as the coordination and impact thereof. The G20 has played a key role in measures taken to overcome the economic and financial crisis and promoted rules to prevent a repetition of such a crisis. The high compliance rate of the EU in implementing these commitments highlights the importance of the legally non-binding G20 commitments. Yet, the G20 is an informal international body where executives from officials’ up to leaders’ level meet. As a body G20 lacks meaningful accountability mechanisms. Moreover the EU can hardly be held to account for its action at the G20 level. This study provides a thorough analysis of the G20 and EU’s action at the G20 level. It sets out the EU legal framework for the participation of the EU and its Member States in the G20. In applying a two-tier accountability framework it identifies accountability gaps and concludes with policy recommendations.
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| 2. |
- Dahlquist, Joel, et al.
(author)
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The infringement proceedings over intra-EU investment treaties - an analysis of the case against Sweden
- 2016
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Reports (other academic/artistic)abstract
- On June 18, 2015, the European Commission initiated infringement proceedings against five Member States over the termination of intra-EU bilateral investment treaties (BITs). In spite of targeting selected agreements, the outcome of these proceedings is bound to have broader ramifications for all existing BITs currently in force between Member States. Engaging in an assessment of the Sweden-Romania BIT, it is of pivotal importance to determine whether the substantive or procedural protections provided for investors under the agreement are compatible with the internal market. Notably, investors from Member States that are not party to the Sweden-Romania BIT are excluded from its protection. In circumstances where these investors are in a similar situation to Romanian and Swedish investors the provisions of the BIT are likely to constitute a violation of the principle of non-discrimination. However, even though the termination of intra-EU BITs appears to be the only pragmatic solution, this cannot have retrospective effect or affect currently pending disputes. Whether or not termination can avoid the prolonging effects of sunset clauses, on the other hand, primarily depends on the view of the investor-state tribunal examining the issue in accordance with international law. However, in anticipation that Sweden decides to negotiate the termination of its BIT with Romania, it is imperative that sunset clauses are addressed explicitly.
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| 5. |
- Lenk, Hannes, 1987
(author)
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Challenging the Notion of Coherence in EU Foreign Investment Policy
- 2015
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In: European Journal of Legal Studies. - 1973-2937. ; 8:2, s. 6-20
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Journal article (peer-reviewed)abstract
- There have long been demands for more coherence in EU external action. The Lisbon Treaty has introduced important institutional changes in this respect. However, coherence – in the broad sense of a positive process that is focused on establishing synergies between various policy fields and actors – is still largely lacking for an EU foreign investment policy. An institutional bifurcation of different Directorates General puts fuel to the fire of a conceptual confusion of intra-EU and extra-EU investment agreements. As a consequence, overarching concerns such as compatibilitywith the principle of autonomy or effects of investor-state arbitration on the internal market are missing a coherent approach.
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| 6. |
- Lenk, Hannes, 1987
(author)
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Investment arbitration under EU investment agreements: Is there a role for an autonomous EU legal order?
- 2017
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In: European Business Law Review. - 0959-6941. ; 28:2, s. 135-162
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Journal article (peer-reviewed)abstract
- The present paper argues, that the investment court fails to guarantee overall compatibility with the Treaty. In particular, the principle of autonomy, which the Court of Justice has over the years developed into an effective tool protecting its own jurisdictional prerogatives, is likely to have an impact on the establishment of the investment court. Accordingly, as the investment court will ultimately engage in the interpretation of EU law and it assessment against broadly defined international standards it fulfills a judicial function that is reserved to the Court of Justice. In the absence of the prior involvement of the Court, and considering the exclusion of domestic courts from the process of dispute resolution, the present paper concludes that the currently envisaged investment court system is incompatible with the Treaty.
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| 7. |
- Lenk, Hannes, 1987
(author)
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Investor-state arbitration under TTIP: Resolving investment disputes in an (autonomous) EU legal order
- 2015
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Book (other academic/artistic)abstract
- The prospect of inclusion of the investment-state dispute settlement (ISDS) in the Transatlantic Trade and Investment Partnership (TTIP), gave rise to heated debate and strong criticism in many EU countries. The initially much polarised either-or discussion has recently gained a more nuanced tone with Trade Commissioner’s Cecilia Malmström’s opening up for a reform of ISDS.
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| 8. |
- Lenk, Hannes, 1987
(author)
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Issues of Attribution: Responsibility of the EU in Investment Disputes under CETA
- 2016
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In: Transnational Dispute Settlement. - 1875-4120. ; 13:1, s. 1-23
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Journal article (peer-reviewed)abstract
- The Comprehensive Economic Trade Agreement (CETA) between the EU and Canada, and with it the entrance in the realm of investment arbitration of an international organization (IO), exposes tribunals to new challenges and complexities, such as the attribution of responsibility to the EU under international law. Investors also are affected by the situation, as it is vital for them to be able to identify the respondent to the dispute and understand the rules of attribution in order to avoid the inadmissibility of their claim. In order to clarify some of the questions raised by this situation, this article investigates the rules of attribution of responsibility to the EU in investment disputes under CETA, applying the International Law Commission’s (ILC’s) Draft Articles on the Responsibility of International Organizations (DARIO) as a normative and analytical framework. After undertaking an analysis of the rules of attribution under international law (with a particular emphasis on the general attribution rules enshrined in DARIO) and of the EU regulation on financial responsibility for investor-state arbitration under EU investment agreements (which exemplifies the EU perspective on responsibility in the field of investment arbitration), this article demonstrates that the application of DARIO in the context of CETA investment disputes can yield satisfactory results without the need to resort to special attribution rules. In particular, on the basis of the CETA text and the envisaged mechanism for the determination of the respondent to investment disputes, this article concludes that while CETA successfully introduces a dynamic and accessible system for investors to identify respondents to their claims, it does not adequately address issues relating to the attribution of responsibility to the EU and its Member States.
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| 9. |
- Lenk, Hannes, 1987
(author)
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Mixity in EU Foreign Trade Policy Is Here to Stay: Advocate General Sharpston on the Allocation of Competence for the Conclusion of the EU-Singapore Free Trade Agreement
- 2017
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In: European Papers. - 2499-8249. ; 2:1, s. 357-382
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Journal article (peer-reviewed)abstract
- It has been two decades since the Court of Justice had the chance to comprehensively assess the scope of the common commercial policy. In Opinion 2/15 on the EU-Singapore free trade agreement (FTA) the Court is now asked to determine how far the EU’s external competence stretches post-Lisbon. Ahead of the decision, AG Sharpston has recently rendered her legal view on the question of whether the EU is endowed with exclusive competence to conclude the EU-Singapore FTA, or whether and to what extent the requisite competences are shared or remain exclusively with the Member States. Unsurprisingly, the AG concludes that the agreement in its entirety is not covered by exclusive competence. Particularly, transport services and non-commercial aspects of intellectual property, but also foreign investment other than direct investment remains the territory of shared competence. Furthermore, the EU enjoys no competence to terminate existing bilateral agreements between Member States and Singapore. Its conclusion as a mixed agreement is therefore mandatory. Indeed, the EU-Singapore trade deal is paradigmatic of the new generation of EU deep and comprehensive FTAs, and the Court’s decision is thus likely to have broader ramifications for other on going and recently finalized negotiations. Should the Court follow the AG, mixity in EU foreign trade policy is everything but a thing of the past.
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