Promises and Pitfalls of the European Union Policy on Foreign Investment--How will the New EU Competence on FDI affect the Emerging Global Regime?

This article analyses constitutional changes and policy consequences concerning the transfer to the supranational level of an external competence in the field of investment resulting from the Treaty on the Functioning of the European Union (TFEU). It states that EU Member States lose their competence to conclude investment treaties and to analyse legal innovations at the EU level. The new comprehensive European investment policy may enable the EU to utilize its leverage to negotiate favourable terms with non-Member States and consistency in protection standards worldwide, leading to an even (as well as a superior) playing field for EU investors. This horizon, however, is darkened by technical, but important, issues of investment treaties implementation and the uncertain future of existing investment treaties signed by Member States. This article shows that these legal innovations offer a rich canvas against which international legal issues of ‘systemic importance’ are discussed, while policy lessons covering preferential trade policy and the next generation of investment treaties are explored. Legal issues and policy strategies will in turn impact the international regime for investment.