Angelos Dimopoulos’s research while affiliated with Business School Netherlands and other places

Compatibility with EU law presents a key challenge for the success of EU investment policy. When EU institutions conclude EU IIAs, they should consider the limitations imposed by primary EU law and the impact of EU IIAs on the legality and validity of secondary Union law. As comprehensive EU IIAs will integrate investment liberalization and protection and will be (partly) based on BITs, significant adjustments to BIT language are required in order to ensure compatibility: the definition of investor has to respect Article 54 TFEU, exceptions reflecting the TFEU should be included to the provisions on capital transfers, Most Favoured Nation (MFN) and National Treatment, and the subject-matter and the available remedies under investor-state arbitration should be limited so as to respect the autonomy of the EU legal order. Equally important, EU IIAs provisions on Fair and Equitable Treatment (FET), umbrella clauses and expropriation have to establish linkages with internal Union rules, promoting legal certainty and avoiding future challenges of secondary Union rules.

This contribution discusses the EU law ramifications on Member State investment guarantee systems. It examines firstly the legal framework on investment guarantee schemes in EU Member States, noting in particular the role of export credit agencies (ECAs), as well as the different types of insurance available, before exploring the EU competence over foreign investment insurance. After arguing that the EU has exclusive competence over insurance covering FDI under Article 207 TFEU, the issue of harmonisation of rules on foreign investment insurance is addressed, concentrating on the need and the desirability of such harmonisation, as well as its potential scope and the challenges that the drafting of appropriate harmonised rules present. Finally, the effects of EU law on international agreements relating to investment guarantee are examined focusing on the participation of the EU and its Member States in MIGA and the existence and content of subrogation clauses in Member State BITs and EU investment agreements. In conclusion, it is argued that the EU’s exclusive competence over FDI requires a reassessment of national rules on foreign investment insurance, which may offer an excellent opportunity to reconsider the substance of foreign investment insurance provisions.

Using the pending Daiichi Sankyo case as a point of reference, this article examines whether EU exclusive competence under Article 207 TFEU requires the CJEU to interpret the patent provisions of the TRIPS Agreement and, if so, what are the implications for patent protection in the EU. It examines whether the Court’s jurisprudence on the direct effect and interpretation of the substantive patent provisions of the TRIPS Agreement is good law in the post-Lisbon era, arguing that the Court has acquired interpretative jurisdiction over the entire TRIPS Agreement. Secondly, it looks into the implications of a CJEU interpretative jurisdiction over TRIPS on the development of uniform EU patent rules in light of the recent developments regarding the establishment of a Unified Patent Court and a EU Patent with Unitary Effect. It concludes that the CJEU can play a key role in safeguarding coherence and consistency in the application of the different regimes of patent protection in the EU.

The regulation of foreign investment represents one of the most topical and controversial subjects in European Union law and international investment law. EU foreign investment law is emerging as a critically important issue, particularly since the introduction of EU competence over foreign direct investment after the Lisbon Treaty and the recent successful challenge of the compatibility of Member States Bilateral Investment Treaties with EU law. Within this framework, the book sets out to identify whether and to what extent the EU has become an international actor in the field of foreign investment. Exploring the existing legal framework on the scope and exercise of EU competence and its legal effects, it examines the foundations upon which EU investment policy is based and will be based in the future. The book addresses questions relating to the definition of foreign investment; the scope of EU competences; the exercise of EU powers; the substantive content of existing and future EU International Investment Agreements; and the objectives of EU investment policy and its EU law effects. From this grounding, the study widens to scrutinize the influence that the EU exerts on international law and regulation of foreign investment. Paying careful attention to the substantive content and orientation of EU International Investment Agreements, the book takes a comparative approach to the content of Bilateral Investment Treaties, as well as to the ramifications of EU foreign investment regulation for international law, especially with regard to the EU's international responsibility. Taking into account the recent developments in the field, this book provides the first comprehensive treatment of the legal, practical, and political concerns that the creation of an EU common investment policy creates.

The introduction of EU competence over foreign direct investment (FDI) in Article 207 TFEU after the Lisbon Treaty has generated broad discussions regarding the scope of the ‘new’ EU competence and how it will affect Member States’ foreign investment policies and in particular their Bilateral Investment Treaties (BITs). Recently, the European Commission announced its intentions to create a new EU investment policy, indicating its aim to transform the EU into a major player in the field of foreign investment. Within this framework, the purpose of this chapter is to examine the challenges that the creation of an EU investment policy presents which the involved political actors will have to tackle within the following years. In that regard, this chapter looks firstly at the scope and content of EU competence, arguing that neither EU institutions nor Member States have fully grasped the broad scope of foreign investment regulation and how different areas of EU law besides the Common Commercial Policy can impact on it. Secondly, the chapter looks at the specific objectives and content of future EU investment agreements. It is argued that although the Commission intends to cover matters that exist under Member State BITs, such as protection against expropriation and investor-state arbitration, it does not have a clear vision of how to integrate them within the framework of the new ‘constitutional’ objectives of EU external relations. Thirdly, the chapter explores the institutional implications that the creation of an EU investment policy raises, focusing on the effects of concluding investment agreements as mixed agreements. Finally, the chapter examines the practical problems that emerge during the transition from national to EU investment policies. As the smooth transition from Member State BITs to EU investment agreements is necessary to preserve European investors’ interests and rights and to sooth the concerns of third countries, the Commission’s planned action focuses only on short-term measures, which merely postpone the uncertainty that EU investment policy will raise.

EU law affects the validity and applicability of intra-EU International Investment Agreements (IIAs) both under EU and international law. Although EU law and intra-EU IIAs create separate legal systems, they cover largely the same subject matter creating scope for potential conflicts. Using different tools and based on different legal principles, both EU law and international law require the determination of the specific incompatibilities between EU law and intra-EU IIAs in order to assess whether and to what extent the latter are applicable. In that regard, the provisions of intra-EU IIAs on dispute settlement and in particular investor-State arbitration present an outright incompatibility with EU law, as they violate the principle of autonomy of EU law and, thus, should be deemed inapplicable.