CYIL vol. 8 (2017)

TOMÁŠ FECÁK CYIL 8 ȍ2017Ȏ žimu je nezbytné, aby nové unijní investiční dohody byly uzavírány formou tzv. smíšených dohod, jejichž stranami jsou vedle EU samotné i všechny její členské státy. Key words: international investment agreements, EU, international responsibility, financial responsibility, investment protection, ISDS, free trade agreements, CETA, foreign direct investment, Opinion 2/15 . On the author: JUDr. Tomáš Fecák, Ph.D. , graduated from Masaryk University in Brno and completed doctoral studies at Charles University in Prague. He is an attorney registered with the Czech Bar Association and associate in the law firm Konečná & Zacha (Prague). He is the author of the monograph ‘International Investment Agreements and EU Law’ (Kluwer Law International, 2016). EU as the New Actor in International Investment Law The entry of the Lisbon Treaty into force in December 2009 marked a major shift in the way the EU and its Member States are involved in shaping of international investment law. In the pre-Lisbon era, protection of foreign investment by means of treaty law was the domain of individual Member States, which entered into an extensive network of bilateral investment treaties with other countries. The Lisbon Treaty changed the situation as it transferred a significant part of the external competence in this field from the Member States to the Union. Foreign direct investment is now one of the areas covered by common commercial policy of the EU by express reference in Articles 206 and 207 TFEU, vesting exclusive external competence in this area in the EU. Since entry of the Lisbon Treaty into force, the European Commission has actively sought to build up the new EU investment policy and has been given the mandate by the Council to include the investment agenda in the trade and investment negotiations with third countries such as the USA, Canada, China, Singapore, India or Vietnam. These negotiations have already produced tangible results in the form of treaty texts, which can be considered as a new emerging EU investment model. The Commission made publicly available the semi-final working drafts of the new Free Trade Agreements with Singapore (EUSFTA) 1 and Vietnam (VIEUFTA) 2 and has also disclosed its official negotiating proposal of the investment chapter to be included in the Transatlantic Trade and Investment Partnership between the EU and USA (TTIP). 3 Most importantly, in October 2016, the EU (jointly with its Member States) and Canada have signed the Comprehensive Economic and Trade Agreement (CETA), also containing a chapter on investment. The decision of the EU to include investment protection and in particular rules on internationalized investor-state dispute settlement (now commonly referred to as ‘ISDS’) in negotiations with countries such as the USA or Canada has drawn unprecedented public attention and the content of the new EU investment agreements has become the subject of heated discussions and controversies. The central theme of the debates has been the need for 1 The latest disclosed version of the negotiated text available at: http://trade.ec.europa.eu/doclib/press/index. cfm?id=961 (accessed 30 June 2017). 2 The latest disclosed version of the negotiated text available at: http://trade.ec.europa.eu/doclib/press/index. cfm?id=1449 (accessed 30 June 2017). 3 The final signed text available at: http://www.consilium.europa.eu/en/press/press-releases/2016/10/28-eu-canada- trade-agreement/ (accessed 30 June 2017). 1.

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