CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ WHAT CANWE EXPECT FROM POSTǧBREXIT UNITED KINGDOM’S INVESTMENT POLICY? Mgr. Bc. Jan Kunstýř, LL.M. is currently working in the Litigation department at Fried, Frank, Harris, Shriver & Jacobson in London. He graduated from the Faculty of Law, Charles University in Prague and holds an LL.M. in Investment Treaty Arbitration from Uppsala University. He also holds a B.A. degree in International Area Studies from the Faculty of Social Sciences, Charles University in Prague. In 2010, he spent a year as an exchange student at Tokyo University of Foreign Studies. His main fields of interest are international commercial and investment treaty arbitration, financial law, and space law. Introduction With the date of the United Kingdom’s (UK) withdrawal from the European Union (EU) approaching, much attention has been devoted to the UK’s future trade policy. In particular, one often hears discussions about how ambitious free trade agreements should be negotiated and with whom and what kind of future relationship will be struck outside the EU Single market. Under these circumstances, the question of the UK’s future investment policy 2 has been rather neglected. Although the competence in this field was transferred to the EU only in 2007 by virtue of the Lisbon Treaty, 3 notably only in relation to foreign direct investment, 4 the prospect of Brexit now means that the competence to negotiate investment treaties is set to return to the UK Government. The UK will conduct a fully independent investment policy for the first time in more than a decade. Although the role of foreign direct investment for the UK economy cannot be overestimated, 5 the attention devoted to the future investment policy is comparably lower than the attention drawn to future trade policy. Historically, the UK has been one of the most active states in negotiating bilateral investment treaties (BITs). Altogether, it has concluded more than 100 BITs. 6 This places the UK fourth on the list of countries with the most BITs in the world. Also, the British investors are among the most frequent users of the dispute resolution system of investment protection. 7 The UK is also an important actor in the international investment protection regime for other reasons; for example, the UK has been successful as a respondent state. According to the UK Government’s report from 2014 there had not been a single successful case brought against the UK under these treaties. 8 It is also a home state for many law firms practicing in investment treaty arbitration, and London as a global financial centre is an 2 The term ‘investment policy’ is a broad term, which covers various government policies regarding allocating money for future benefits. This article focuses on policies designed to attract and protect foreign investment. 3 Treaty of Lisbon Amending theTreaty on European Union and theTreaty Establishing the European Community, 3 December 2007. 4 Opinion 2/15 of the Court (Full Court) of 16 May 2017 on Free Trade Agreement between the European Union and the Republic of Singapore. 5 According to the UNCTAD there is more than £1 trillion in foreign direct investment (FDI) in the UK, and UK firms overseas hold an even higher amount of FDI. UNCTAD, ‘World Investment Report’ (2016). 6 UNCTAD, ‘Investment Policy Hub’ accessed 5 May 2018. 7 According to the UNCTAD the UK is a home state of 74 investors – claimants. UNCTAD, ‘Investment Policy Hub’ accessed 5 May 2018. 8 HM Government, Government Response to the House of European Union Committee’s Fourteenth Lords Report: The Transatlantic Trade and Investment Partnership (2014) 7. There is one publicly known claim which has been brought against the UK with unknown outcome: Sancheti v. United Kingdom 2006.

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