Academic journal article Texas International Law Journal

Can It Lead from Behind? the European Union's Struggle to Catch Up in International Investment Policy Making in the Wake of the Lisbon Treaty

Academic journal article Texas International Law Journal

Can It Lead from Behind? the European Union's Struggle to Catch Up in International Investment Policy Making in the Wake of the Lisbon Treaty

Article excerpt

TABLE OF CONTENTS

INTRODUCTION...............................................................................................................260

I. TRADE POLICY AND DECISION-MAKING IN THE EU.....................................260

A. Pre-Lisbon...................................................................................................260

B. Treaty of Lisbon: New Competence for the European Union...............261

C. What Is Left in the Hands of the Member States?....................................263

D. Non-Treaty-Based Trends: Commissioner Influence and a Shift Towards Bilateralism..................................................................................264

E. The Commission as an Agent of Multiple Principles...............................264

F. Shift Towards Bilateralism Pre- and Post-Lisbon: Or, "Greetings from Doha!"................................................................................................265

II. BITS, EU MEMBER STATES, AND THE OFFICIAL STATUS OF THE EU..........267

A. Status of Current Member State BITs........................................................267

B. The EU as Respondent and ISDS in the EU Legal Order.......................269

C. Future EU BITs?.........................................................................................271

III. IS THE EU MISSING THE FOREST FOR THE TREES?.........................................274

A. The Demise of the "Gold Standard".........................................................275

B. NAFTA 's Growing Prominence................................................................277

C. New Moves Towards Multilateralism?......................................................279

CONCLUSION...................................................................................................................280

INTRODUCTION

The European Union (EU), taken as a whole, is one of the largest and most important economic entities in the world, with unique ties to the developing world due to its former colonial holdings and close ties to the developed world by virtue of its membership. Because of this, the choices the EU institutions make with regard to the Union's external relations can have a far-reaching impact across many sectors. As the EU slowly gains more competence from its Member States with respect to external trade policy, it is important that the leaders of the various EU institutions stay ahead of the curve when it comes to the prevailing trends of the global economy. The rise of investor-state dispute settlement (ISDS) and international investment agreements (IIAs) that crisscross the globe has developed, until recently, largely independent of EU influence. As that begins to change, new challenges have presented themselves as the EU seeks to exert influence in those areas.

In this Note, I argue that an examination of the decision-making processes of the EU leads to a number of conclusions about the challenges the EU faces in developing a uniform external trade and investment policy. Most importantly, the extra levels of institutional input and the politics of policy making in the EU may prevent the European Union from maintaining an edge with respect to their peer trading partners when it comes to advantageous trade agreements. Part II explores the evolution of EU trade and investment policy as well as the complex principal-agent problems that manifest in this area. Part III examines certain technical aspects of the transition from Member State competence in international investment to EU competence. Finally, Part IV takes a broader look at what new trends in investment agreements portend for the EU.

I. TRADE POLICY AND DECISION-MAKING IN THE EU

Broadly speaking, there are three main constituencies in the EU, each with a corresponding governing institution: The Commission tends to represent panEuropean interests, the Council is Member State-focused, and the European Parliament is directly elected by EU citizens. …

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