CYIL vol. 9 (2018)

ONDŘEJ SVOBODA – JAN KUNSTÝŘ CYIL 9 ȍ2018Ȏ important hub of third party funders. As such, the approach which the UK will adopt in its future investment treaty-making will play a significant role in the global terms. While some observers accurately point out that “it would not be realistic or advisable to simply revert back to pre-2009 UK investment treaty practice,” 9 it can be expected that the current UK Government intends to develop a new model in order to reflect developments in policies designed to attract and protect foreign investment over the last decade. This paper will assess the UK’s prospects of running a fully independent investment policy. For this purpose, it will first analyse the UK’s BITs before the Lisbon Treaty and developments since the entry of the Lisbon Treaty into force as well as contemporary indications from the side of the UK Government and various stakeholders. Based on this analysis it will attempt to foresee the UK’s direction after Brexit. Specifically, the paper will try to answer whether the UK will follow the reformist approach pioneered by the EU, 10 adopt the “evolutionary” model promoted by the U.S., 11 or completely reject the whole investment protection as did Australia in 2011. 12 In answering the questions above, this article assumes that the current minority Conservative Government will remain in power to formulate the post-Brexit investment policy. There are obvious pitfalls to this assumption: The minority Government is inherently unstable and past precedents and commentators suggest that the full term may be difficult to achieve. 13 Should the governing party change, it is likely that investment policy would change with it. Both the Labour and Liberal Democratic parties proclaim that they favour remaining in the Single Market and/or a customs union, 14 so in this scenario, it would be more difficult for the UK to retain full competence to negotiate BITs and to develop independent investment policy. The Stock of UK International Investment Agreements The UK launched its BIT programme in the mid-1970s in response to the perceived threat to British overseas investments posed by the New International Economic Order of the early 1970s. 15 The UK concluded its first BIT in 1975 with Egypt, and since then the stock of BITs has been steadily increasing. Prompted by the Regulation (EU) No. 1219/2012, 16 the UK declared to the European Commission that as of May 2017, 17 it has 94 BITs in force. 18 9 COTULA, Lorenzo, JOHNSON, Lise, ‘Briefing: Beyond trade deals: charting a post-Brexit course for UK investment treaties’ [2016] 3. 10 European Commission, Concept Paper: Investment in TTIP and beyond – the path for reform. Enhancing the right to regulate and moving from current ad hoc arbitration towards an Investment Court (2015). 11 United States Department of State, 2012 U.S. Model Bilateral Investment Treaty. 12 Australian Government, Department of Foreign Affairs and Trade, ‘Gillard Government Trade Policy Statement: Trading our way to more jobs and prosperity’ [2011] 14. 13 BBC News, ‘Theresa May and the DUP deal: What you need to know’ accessed 25 May 2018. 14 Labour Party, ‘Manifesto’ accessed 24 May 2018; Liberal Democrats, ‘Exit From Brexit’ accessed 24 May 2018. 15 WALTER, Andrew. ‘British Investment Treaties in South Asia: Current Status and Future Trends: Report Prepared for the International Development Centre of Japan’ [2000] 9. 16 Art. 4(1) of the Regulation (EU) No. 1219/2012 of the European Parliament and of the Council of 12 December 2012 establishing transitional arrangements for bilateral investment agreements between Member States and third countries. 17 OJ C 147/01. 18 The full list of the UK’s concluded BITs as of May 2017 includes: Republic of Albania – 30. 3. 1994; Republic

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