After seven years of negotiations, the European Union (EU) and Canada signed the Comprehensive Economic and Trade Agreement (CETA) on 30 October 2016. One innovative yet controversial aspect of CETA is the establishment of an international court to resolve investor-State disputes under the Agreement. As a result of demands by Belgium’s regional Walloon government, which previously threatened to block the Agreement, the introduction of this court has been deferred until the Court of Justice of the EU determines its compatibility with EU law. Nevertheless, CETA marks the first time that
On 8 September 2016, the President of Romania agreed to submit to the Romanian Parliament draft legislation approving termination of 22 bilateral investment treaties that Romania concluded with other EU Member States (“intra-EU BITs”). The draft legislation had been initiated on 10 August 2016 by the Romanian Government in an expedited legislative procedure. The explanatory note to the draft legislation quotes the European Commission’s view that intra-EU BITs are incompatible with EU law and refers to the infringement proceedings initiated on 18 June 2015 against five EU Member States, including Romania, requesting them
On 29 February 2016, a revised text of the Canada-EU Comprehensive Economic and Trade Agreement (“CETA”) was released. Importantly, Canada and the EU have agreed to a number of substantive changes to the CETA’s Investment Chapter, including: Stronger right to regulate: the EU and Canada fully preserve their right to regulate to achieve legitimate policy objectives, including protection of public health, safety, environment or public morals; Narrowly prescribed standards of investment protection: a closed list of measures that could give rise to a violation of the fair and equitable treatment
On 25 February 2016, Poland’s State Treasury announced its intention to terminate its Bilateral Investment Treaties (“BITs”). Poland currently has around 60 BITs in force, all of them signed between 1987 and 1998. Poland concluded BITs with almost every EU Member State (“intra-EU BITs”). It remains, however, the only EU Member State that is not a party to the ICSID Convention. The State Treasury indicated its intention to terminate all 60 BITs. Shortly thereafter a new announcement recommended that the Polish Government take the step of terminating intra-EU BITs only.
On December 28, 2015, the Government of India released the text for its revised model Bilateral Investment Treaty (BIT). In this release, the Government of India also announced that the Department of Economic Affairs will be leading all negotiations on BITs and investment chapters of trade agreements to ensure continuity between trade and investment issues.
Since the Treaty of Lisbon entered into force more than four years ago, the EU has exclusive competence to conclude agreements covering foreign direct investments with third States. Until then, EU Member States had concluded around 1,400 investment agreements with third States. Slowly but surely the EU’s foreign investment policy begins to take shape and it is not all good news for foreign investors. Importantly, however, a regulation of 12 December 2012 clarified the principle that investment agreements by EU Member States with third States remain in force. Thus, for