Sustainable Development in EU Foreign Investment Law: Nijhoff International Investment Law Series, cartea 19
Autor Stefanie Schachereren Limba Engleză Hardback – 25 aug 2021
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Specificații
ISBN-13: 9789004465879
ISBN-10: 9004465871
Dimensiuni: 155 x 235 mm
Greutate: 0 kg
Editura: Brill
Colecția Brill | Nijhoff
Seria Nijhoff International Investment Law Series
ISBN-10: 9004465871
Dimensiuni: 155 x 235 mm
Greutate: 0 kg
Editura: Brill
Colecția Brill | Nijhoff
Seria Nijhoff International Investment Law Series
Cuprins
List of Abbreviations
Preface
1 Introduction
1.1 The Distinctiveness of the EU as a Global Actor
1.2 Assumptions Regarding Investment Treaties
1.3 Outline of the Argument
PART 1
Conceptual and Normative Framework of SD Integration in International Law and EU Law
2Sustainable Development in the International Legal Order
2.1 Historical Developments
2.1.1The Rio Conference and Its Follow-Up Process
2.1.2Legal Effects of SD in International Treaties
2.2 SD and the Dichotomy of Goals and Means
2.2.1The Importance of the Principle of Integration
2.2.2Other SD Principles
2.2.2.1 Inter-Generational Equity
2.2.2.2 Intra-Generational Equity
2.2.2.3 Other Principles of International Environmental Law
2.2.2.4 Human Rights and Fundamental Labour Principles
2.2.2.5 The Principle of Participation
2.2.2.6 The Principle of Good Governance
2.2.3The Legal Nature of SD
2.2.3.1 Is SD Part of Customary International Law?
2.2.3.2 SD and Discretion
2.2.3.3 Connecting the Dots
2.3 The Integration of SD in International Investment Agreements (IIA S)
2.4 IIA S and SD-Advancing Investment
2.4.1Not Subsidising Unsustainable Investment: The Definition of Investment
2.4.1.1 Foreign Direct Investments versus Financial Investments
2.4.1.2 The Contribution to the Host State’s Development
2.4.1.3 The Legality Requirement
2.4.1.4 Registration and Approval Requirements
2.4.2Provisions on Investment Liberalisation: Boon or Bane for SD?
2.5 IIA S and Domestic Regulation on SD
2.5.1More Precise Provisions
2.5.2Flexibility Clauses
2.5.2.1 Police Powers Exception
2.5.2.2 General Exceptions
2.5.2.3 Other Flexibility Clauses
2.5.3SD and Investor-State Dispute Settlement
2.5.3.1 Debates about Whether ISDS Undermines sd
2.5.3.2 Is It Possible to Design an ISDS System Consistent with SD?
2.5.4Ensuring Interpretation in Light of SD
2.6 IIA S and International Cooperation on SD
2.6.1Avoiding a Race to the Bottom and Enhancing SD Standards
2.6.2Addressing SD-Investment Issues of Global Concern
2.6.3Responsible Investment and the Balancing of Rights and Obligations of Investors
2.6.4Measuring the SD Impacts of IIA S
2.7 Concluding Remarks
3 Sustainable Development in the EU Legal Order
3.1 The Reception of SD as a Union Objective
3.1.1SD in EU Primary Law
3.1.2Legal and Political Impacts of SD
3.2 SD—A Union Objective Unlike Any Other?
3.2.1The Changing Position of Objectives in the EU Legal Order
3.2.1.1 SD as a General and Horizontal Objective
3.2.1.2 SD and the Values of the EU
3.2.2The Legal Effects of SD and Its Limits
3.2.2.1 Discretionary Powers of the EU Institutions
3.2.2.2 The Choice of the Appropriate Legal Basis
3.3 Legal Means of EU Law Supportive of SD
3.3.1Social and Environmental Integration
3.3.2The Requirement of Policy Coherence
3.4 Contours of the Substantive Scope of SD under EU Law
3.4.1Articulation of SD within EU Internal Policies
3.4.1.1 Key Internal Policy Areas with SD Components
3.4.1.2 The Concept of “Sustainable Growth”
3.4.2Articulation of sd within EU External Action
3.4.2.1 Key External Policy Areas with SD Components
3.4.2.2 The “Eradication of Poverty”
3.5 Concluding Remarks
4 Sustainable Development—An Integral Part of EU Investment Law-Making
4.1 The Evolution of International Investment Law-Making of the EU
4.1.1Pre-Lisbon EU Investment Law-Making
4.1.2Post-Lisbon: Building an Autonomous EU Investment Policy
4.2 EU Competence over Foreign Investment and sd
4.2.1Exclusive Competence over Foreign Direct Investment
4.2.2Shared Implied External Competence over Non-Direct Investment
4.2.3Forms of Investment Regulation Falling under EU Competence
4.2.4Investor-State Dispute Settlement
4.2.5SD—Stretching the Scope of the ccp
4.3 SD and the Re-Orientation of the Common Commercial Policy
4.3.1Managing the Interplay of Multiple Objectives within the ccp
4.3.1.1 SD among Other General Objectives
4.3.1.2 SD and the Specific CCP Objectives
4.3.2Horizontal Coherence: The CCP and Other EU Policies
4.3.3Turning the SD Objective into Investment Strategies
4.4 EU International Investment Agreements
4.4.1The Decision-Making Procedure for the Conclusion of EU IIA S
4.4.2EU IIA S as Mixed Agreements
4.4.3Content and Scope of EU IIA S
4.4.3.1 The Market Integration Model
4.4.3.2 The Investment Liberalisation and Protection Model
4.5 SD and the Autonomy of the EU Legal Order
4.5.1In Compliance with the Autonomy of the EU Legal Order: The Investment Court System (ICS)
4.5.1.1 The Principle
4.5.1.2 The Court’s Monopoly of Final Interpretation
4.5.2Safeguarding Regulatory Autonomy
4.5.2.1 The Court’s Assumption-Based Risk Assessment
4.5.2.2 The Court’s Instructions on How to Implement EU IIA S
4.5.3Implications for the EU as a Global Actor
4.6 Concluding Remarks
PART 2
Legal Effects of SD and the Emerging Transformation of International Investment Law and Governance
5 The Integration of Sustainable Development through Regulatory Linkages between Investment, Labour Standards and Environmental Protection under EU IIA S
5.1 Establishing a Level Playing Field for Investment in the Context of SD
5.1.1Non-Lowering of Standards Clauses
5.1.2Implementation of International Standards
5.1.2.1 International Labour Standards
5.1.2.2 Multilateral Environmental Agreements (MEA S)
5.1.3Promoting High Levels of Protection
5.2 Institutional and Procedural Arrangements
5.2.1Institutional Set-Up
5.2.2Enforcement of the Commitments on Labour and the Environment
5.2.2.1 A Two-Stage Framework for Dispute Resolution
5.2.2.2 Soft Enforcement and Sanction-Based Enforcement
5.2.3Transparency and Public Information
5.2.4Ex post SD Review of IIA Implementation
5.3 Additional Fields of Cooperation on sd-Investment Linkages
5.3.1Climate Change Mitigation and Renewable Energy Sources
5.3.2Human Rights
5.3.3Development Cooperation
5.3.4Anti-Corruption
5.4 Fostering the Responsibility of Foreign Investors
5.4.1Direct Versus Indirect Investor Obligations
5.4.1.1 CSR Commitments Addressed to States/the EU
5.4.1.2 CSR Commitments Directly Addressed to Foreign Investors
5.4.2Issues of Enforcing Investor Obligations
5.5 SD Integration during the Negotiation Phase of EU IIA S
5.5.1The Procedure of Sustainability Impact Assessments
5.5.2The Methodology of Sustainability Impact Assessments
5.5.3Sustainability Impact Assessment in Practice
5.5.3.1 The SIA Process Relating to the CETA
5.5.3.2 The SIA Process Relating to the EU-Japan FTA
5.5.3.3 The SIA Process Relating to the China-EU CAI
5.5.4Benefits and Limits of Sustainability Impact Assessments
5.6 Concluding Remarks
6 Sustainable Development Integration in the Realm of Investment Liberalisation and Protection under EU IIA S
6.1 Re-Balancing Investment Protection with sd Interests under EU IIA
6.1.1Fair and Equitable Treatment
6.1.2Indirect Expropriation
6.1.2.1 Clarifying the Meaning of Indirect Expropriation
6.1.2.2 Permitted Regulation
6.1.3A Specific Provision on the Right to Regulate
6.1.3.1 Reaffirming the Right to Regulate
6.1.3.2 Regulations on State Subsidies
6.1.4The Post-Establishment Obligation of Non-Discrimination
6.1.5General Exception Clauses for SD Regulatory Flexibility under EU IIA S
6.1.5.1 Permissible Objectives
6.1.5.2 The Nexus Requirement “necessary for”
6.2 The Lack of SD Integration in the Regulation of Investment Liberalisation under EU IIA S
6.2.1Pre-Establishment Rights
6.2.2Prohibitions of Market Access Restrictions
6.2.3Prohibitions of Performance Requirements
6.3 The Notion of Investment: Limited SD Integration under EU IIA S
6.3.1Narrowing Down the Scope of the Definition
6.3.2Enumerating Certain Criteria
6.3.3In Accordance with Host State Law
6.4 Procedural Aspects of Investor-State Dispute Resolution Relevant for SD
6.4.1Transparency and amicus curiae Participation
6.4.2Exclusions from the Scope of Investor-State Dispute Resolution
6.5 Concluding Remarks
7 Sustainable Development Integration in the Interpretation of EU IIA S
7.1 SD as the Objective of EU IIA S
7.1.1Preambles and Objectives Provisions
7.1.2Embedding EU IIA S in the Global SD Agenda
7.2 The Relationship between Provisions on Investment and TSD Chapters
7.2.1Mutual Reinforcement and Coherence
7.2.2The Right to Regulate—A Crosscutting Issue
7.2.3Mutual Exclusion Concerning Dispute Settlement
7.3 General Interpretative Techniques
7.3.1Object and Purpose
7.3.2Contextual Interpretation
7.3.3Evolutionary Interpretation
7.4 Methods for the Balancing between Competing Interests
7.4.1Integration
7.4.2Proportionality Analysis
7.4.3Standard of Review and Deference
7.5 Concluding Remarks
8 Conclusion
8.1 On the EU as a Global Actor
8.2 On the EU’s Discretion to Integrate SD
8.3 Outlook: IIA S and Other Instruments
Bibliography
Table of Cases
Table of Treaties, Legislation and Other Documents
Index
Preface
1 Introduction
1.1 The Distinctiveness of the EU as a Global Actor
1.2 Assumptions Regarding Investment Treaties
1.3 Outline of the Argument
PART 1
Conceptual and Normative Framework of SD Integration in International Law and EU Law
2Sustainable Development in the International Legal Order
2.1 Historical Developments
2.1.1The Rio Conference and Its Follow-Up Process
2.1.2Legal Effects of SD in International Treaties
2.2 SD and the Dichotomy of Goals and Means
2.2.1The Importance of the Principle of Integration
2.2.2Other SD Principles
2.2.2.1 Inter-Generational Equity
2.2.2.2 Intra-Generational Equity
2.2.2.3 Other Principles of International Environmental Law
2.2.2.4 Human Rights and Fundamental Labour Principles
2.2.2.5 The Principle of Participation
2.2.2.6 The Principle of Good Governance
2.2.3The Legal Nature of SD
2.2.3.1 Is SD Part of Customary International Law?
2.2.3.2 SD and Discretion
2.2.3.3 Connecting the Dots
2.3 The Integration of SD in International Investment Agreements (IIA S)
2.4 IIA S and SD-Advancing Investment
2.4.1Not Subsidising Unsustainable Investment: The Definition of Investment
2.4.1.1 Foreign Direct Investments versus Financial Investments
2.4.1.2 The Contribution to the Host State’s Development
2.4.1.3 The Legality Requirement
2.4.1.4 Registration and Approval Requirements
2.4.2Provisions on Investment Liberalisation: Boon or Bane for SD?
2.5 IIA S and Domestic Regulation on SD
2.5.1More Precise Provisions
2.5.2Flexibility Clauses
2.5.2.1 Police Powers Exception
2.5.2.2 General Exceptions
2.5.2.3 Other Flexibility Clauses
2.5.3SD and Investor-State Dispute Settlement
2.5.3.1 Debates about Whether ISDS Undermines sd
2.5.3.2 Is It Possible to Design an ISDS System Consistent with SD?
2.5.4Ensuring Interpretation in Light of SD
2.6 IIA S and International Cooperation on SD
2.6.1Avoiding a Race to the Bottom and Enhancing SD Standards
2.6.2Addressing SD-Investment Issues of Global Concern
2.6.3Responsible Investment and the Balancing of Rights and Obligations of Investors
2.6.4Measuring the SD Impacts of IIA S
2.7 Concluding Remarks
3 Sustainable Development in the EU Legal Order
3.1 The Reception of SD as a Union Objective
3.1.1SD in EU Primary Law
3.1.2Legal and Political Impacts of SD
3.2 SD—A Union Objective Unlike Any Other?
3.2.1The Changing Position of Objectives in the EU Legal Order
3.2.1.1 SD as a General and Horizontal Objective
3.2.1.2 SD and the Values of the EU
3.2.2The Legal Effects of SD and Its Limits
3.2.2.1 Discretionary Powers of the EU Institutions
3.2.2.2 The Choice of the Appropriate Legal Basis
3.3 Legal Means of EU Law Supportive of SD
3.3.1Social and Environmental Integration
3.3.2The Requirement of Policy Coherence
3.4 Contours of the Substantive Scope of SD under EU Law
3.4.1Articulation of SD within EU Internal Policies
3.4.1.1 Key Internal Policy Areas with SD Components
3.4.1.2 The Concept of “Sustainable Growth”
3.4.2Articulation of sd within EU External Action
3.4.2.1 Key External Policy Areas with SD Components
3.4.2.2 The “Eradication of Poverty”
3.5 Concluding Remarks
4 Sustainable Development—An Integral Part of EU Investment Law-Making
4.1 The Evolution of International Investment Law-Making of the EU
4.1.1Pre-Lisbon EU Investment Law-Making
4.1.2Post-Lisbon: Building an Autonomous EU Investment Policy
4.2 EU Competence over Foreign Investment and sd
4.2.1Exclusive Competence over Foreign Direct Investment
4.2.2Shared Implied External Competence over Non-Direct Investment
4.2.3Forms of Investment Regulation Falling under EU Competence
4.2.4Investor-State Dispute Settlement
4.2.5SD—Stretching the Scope of the ccp
4.3 SD and the Re-Orientation of the Common Commercial Policy
4.3.1Managing the Interplay of Multiple Objectives within the ccp
4.3.1.1 SD among Other General Objectives
4.3.1.2 SD and the Specific CCP Objectives
4.3.2Horizontal Coherence: The CCP and Other EU Policies
4.3.3Turning the SD Objective into Investment Strategies
4.4 EU International Investment Agreements
4.4.1The Decision-Making Procedure for the Conclusion of EU IIA S
4.4.2EU IIA S as Mixed Agreements
4.4.3Content and Scope of EU IIA S
4.4.3.1 The Market Integration Model
4.4.3.2 The Investment Liberalisation and Protection Model
4.5 SD and the Autonomy of the EU Legal Order
4.5.1In Compliance with the Autonomy of the EU Legal Order: The Investment Court System (ICS)
4.5.1.1 The Principle
4.5.1.2 The Court’s Monopoly of Final Interpretation
4.5.2Safeguarding Regulatory Autonomy
4.5.2.1 The Court’s Assumption-Based Risk Assessment
4.5.2.2 The Court’s Instructions on How to Implement EU IIA S
4.5.3Implications for the EU as a Global Actor
4.6 Concluding Remarks
PART 2
Legal Effects of SD and the Emerging Transformation of International Investment Law and Governance
5 The Integration of Sustainable Development through Regulatory Linkages between Investment, Labour Standards and Environmental Protection under EU IIA S
5.1 Establishing a Level Playing Field for Investment in the Context of SD
5.1.1Non-Lowering of Standards Clauses
5.1.2Implementation of International Standards
5.1.2.1 International Labour Standards
5.1.2.2 Multilateral Environmental Agreements (MEA S)
5.1.3Promoting High Levels of Protection
5.2 Institutional and Procedural Arrangements
5.2.1Institutional Set-Up
5.2.2Enforcement of the Commitments on Labour and the Environment
5.2.2.1 A Two-Stage Framework for Dispute Resolution
5.2.2.2 Soft Enforcement and Sanction-Based Enforcement
5.2.3Transparency and Public Information
5.2.4Ex post SD Review of IIA Implementation
5.3 Additional Fields of Cooperation on sd-Investment Linkages
5.3.1Climate Change Mitigation and Renewable Energy Sources
5.3.2Human Rights
5.3.3Development Cooperation
5.3.4Anti-Corruption
5.4 Fostering the Responsibility of Foreign Investors
5.4.1Direct Versus Indirect Investor Obligations
5.4.1.1 CSR Commitments Addressed to States/the EU
5.4.1.2 CSR Commitments Directly Addressed to Foreign Investors
5.4.2Issues of Enforcing Investor Obligations
5.5 SD Integration during the Negotiation Phase of EU IIA S
5.5.1The Procedure of Sustainability Impact Assessments
5.5.2The Methodology of Sustainability Impact Assessments
5.5.3Sustainability Impact Assessment in Practice
5.5.3.1 The SIA Process Relating to the CETA
5.5.3.2 The SIA Process Relating to the EU-Japan FTA
5.5.3.3 The SIA Process Relating to the China-EU CAI
5.5.4Benefits and Limits of Sustainability Impact Assessments
5.6 Concluding Remarks
6 Sustainable Development Integration in the Realm of Investment Liberalisation and Protection under EU IIA S
6.1 Re-Balancing Investment Protection with sd Interests under EU IIA
6.1.1Fair and Equitable Treatment
6.1.2Indirect Expropriation
6.1.2.1 Clarifying the Meaning of Indirect Expropriation
6.1.2.2 Permitted Regulation
6.1.3A Specific Provision on the Right to Regulate
6.1.3.1 Reaffirming the Right to Regulate
6.1.3.2 Regulations on State Subsidies
6.1.4The Post-Establishment Obligation of Non-Discrimination
6.1.5General Exception Clauses for SD Regulatory Flexibility under EU IIA S
6.1.5.1 Permissible Objectives
6.1.5.2 The Nexus Requirement “necessary for”
6.2 The Lack of SD Integration in the Regulation of Investment Liberalisation under EU IIA S
6.2.1Pre-Establishment Rights
6.2.2Prohibitions of Market Access Restrictions
6.2.3Prohibitions of Performance Requirements
6.3 The Notion of Investment: Limited SD Integration under EU IIA S
6.3.1Narrowing Down the Scope of the Definition
6.3.2Enumerating Certain Criteria
6.3.3In Accordance with Host State Law
6.4 Procedural Aspects of Investor-State Dispute Resolution Relevant for SD
6.4.1Transparency and amicus curiae Participation
6.4.2Exclusions from the Scope of Investor-State Dispute Resolution
6.5 Concluding Remarks
7 Sustainable Development Integration in the Interpretation of EU IIA S
7.1 SD as the Objective of EU IIA S
7.1.1Preambles and Objectives Provisions
7.1.2Embedding EU IIA S in the Global SD Agenda
7.2 The Relationship between Provisions on Investment and TSD Chapters
7.2.1Mutual Reinforcement and Coherence
7.2.2The Right to Regulate—A Crosscutting Issue
7.2.3Mutual Exclusion Concerning Dispute Settlement
7.3 General Interpretative Techniques
7.3.1Object and Purpose
7.3.2Contextual Interpretation
7.3.3Evolutionary Interpretation
7.4 Methods for the Balancing between Competing Interests
7.4.1Integration
7.4.2Proportionality Analysis
7.4.3Standard of Review and Deference
7.5 Concluding Remarks
8 Conclusion
8.1 On the EU as a Global Actor
8.2 On the EU’s Discretion to Integrate SD
8.3 Outlook: IIA S and Other Instruments
Bibliography
Table of Cases
Table of Treaties, Legislation and Other Documents
Index
Notă biografică
Stefanie Schacherer, Ph.D. (Universities of Geneva and Vienna, 2019), LL.M. (King’s College London, 2014), is a Postdoctoral Fellow at the National University of Singapore, Centre for International Law.