CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ WHAT CANWE EXPECT FROM POSTǧBREXIT UNITED KINGDOM’S INVESTMENT POLICY? The first sign of increasing commotion in this area is the Parliament’s International Trade Committee launch of an inquiry concerning the UK’s investment policy, which “will examine the Government’s performance in promoting and facilitating inward and outward investment and its approach, upon UK exit from the EU, to negotiating agreements that liberalise and protect foreign investment.” 41 Questions, which will be subjected to the Committee’s scrutiny, include “the effect of the UK’s existing bilateral investment treaties (BITs) on investment flows and the UK’s ability to regulate in the public’s interest” or “what provisions on investment should the UK seek in future trade and investment agreements”. 42 One of the most formative influences on the future UK investment policy will be the negotiations with the EU on the future trade and economic relationship. In these negotiations, from all the models considered, the deep and comprehensive FTA (DCFTA) is the model which appears to be the most feasible. 43 The EU promotes its new approach to investment protection and proposes it in each negotiation with third countries in the form of an investment chapter in FTAs 44 or in the form of a separate investment agreement. There is then little doubt that the EU will insist on the inclusion of investment provisions regulating investment flows between the EU and the UK. 45 This assumption is also supported by the European Council’s Guidelines for Brexit negotiations which declare that a future free trade agreement between the EU and the UK would address investment among other areas of interest to the Union. 46 The UK is a contracting party of ten bilateral investment treaties with the EU Member States. The so-called intra-EU BITs were disputed at length with regard to their conformity with EU law. The recent Achmea judgment of the CJEU finally brings clarity to this issue. 47 In the light of the decision, we can consequently expect the European Commission to push for the termination of these treaties. This development, however, will not matter too much for the UK intra-EU BITs for an obvious reason – the treaties will cease to be “intra-EU” once the UK will leave the Union. The BITs between the UK and EU Member States will no longer raise EU law issues, and therefore there will not be any incentive for the UK or EU Member States to terminate the arrangements. 48 The six BITs will most probably remain a subject of negotiators’ agenda. The existence of the treaties will serve as the reference point for investment negotiations between the UK and the EU and particularly for the EU’s effort to modernise the rules as all intra-EU BITs have their origin in the 1990s. Treaty News, 8 June 2009) accessed 14 May 2018. 41 UK Parliament, ‘UK’s investment policy inquiry launched’ (2 May 2018) accessed 5 May 2018. 42 Ibid. 43 For summary of all options see EECKHOUT, Piet. ‘Future trade relations between the EU and the UK: options after Brexit, Study for European Parliament’ (Directorate General for External Policies of the Union 2018). 44 Investment chapters in trade agreements are largely identical in substance to bilateral investment treaties. 45 NEUWAHL, Nanette. ‘CETA as a Potential Model for (Post-Brexit) UK-EU Relations’ [2018] European Foreign Affairs Review , 296-297. 46 European Council, Guidelines (EUCO XT 20001/18, 23 March 2018) para 8 vi). 47 Judgment of the Court (Grand Chamber) of 6 March 2018, C-284/16 Slovak Republic v Achmea BV. 48 SAADEH, Jiries. ‘The European Union, investment treaties and investment arbitration post-Brexit’ (Home Practical Law Arbitration, 11 July 2016) accessed 19 April 2018.

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