Full Description
In Sustainable Development in EU Foreign Investment Law, Stefanie Schacherer offers an account of the legal effects of sustainable development within the EU's international investment policy and global investment governance. The author provides a clear assessment of how the EU contributes to the ongoing debate on sustainable development integration in international investment agreements. By analysing the EU's post-Lisbon treaty practice, the author critically assesses to what extent the EU has managed to operationalise a sustainable-development-driven foreign investment policy.
Contents
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
2 Sustainable Development in the International Legal Order
2.1 Historical Developments
2.1.1 The Rio Conference and Its Follow-Up Process
2.1.2 Legal Effects of SD in International Treaties
2.2 SD and the Dichotomy of Goals and Means
2.2.1 The Importance of the Principle of Integration
2.2.2 Other 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
2.2.3 The 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
2.4.1 Not 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
2.4.2 Provisions on Investment Liberalisation: Boon or Bane for SD?
2.5 IIA S and Domestic Regulation on SD
2.5.1 More Precise Provisions
2.5.2 Flexibility Clauses
2.5.2.1 Police Powers Exception
2.5.2.2 General Exceptions
2.5.2.3 Other Flexibility Clauses
2.5.3 SD 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?
2.5.4 Ensuring Interpretation in Light of SD
2.6 IIA S and International Cooperation on SD
2.6.1 Avoiding a Race to the Bottom and Enhancing SD Standards
2.6.2 Addressing SD-Investment Issues of Global Concern
2.6.3 Responsible Investment and the Balancing of Rights and Obligations of Investors
2.6.4 Measuring 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
3.1.1 SD in EU Primary Law
3.1.2 Legal and Political Impacts of SD
3.2 SD—A Union Objective Unlike Any Other?
3.2.1 The 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
3.2.2 The 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
3.3.1 Social and Environmental Integration
3.3.2 The Requirement of Policy Coherence
3.4 Contours of the Substantive Scope of SD under EU Law
3.4.1 Articulation 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"
3.4.2 Articulation 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
4.1.1 Pre-Lisbon EU Investment Law-Making
4.1.2 Post-Lisbon: Building an Autonomous EU Investment Policy
4.2 EU Competence over Foreign Investment and sd
4.2.1 Exclusive Competence over Foreign Direct Investment
4.2.2 Shared Implied External Competence over Non-Direct Investment
4.2.3 Forms of Investment Regulation Falling under EU Competence
4.2.4 Investor-State Dispute Settlement
4.2.5 SD—Stretching the Scope of the ccp
4.3 SD and the Re-Orientation of the Common Commercial Policy
4.3.1 Managing 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
4.3.2 Horizontal Coherence: The CCP and Other EU Policies
4.3.3 Turning the SD Objective into Investment Strategies
4.4 EU International Investment Agreements
4.4.1 The Decision-Making Procedure for the Conclusion of EU IIA S
4.4.2 EU IIA S as Mixed Agreements
4.4.3 Content 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
4.5.1 In 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
4.5.2 Safeguarding 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
4.5.3 Implications 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
5.1.1 Non-Lowering of Standards Clauses
5.1.2 Implementation of International Standards
5.1.2.1 International Labour Standards
5.1.2.2 Multilateral Environmental Agreements (MEA S)
5.1.3 Promoting High Levels of Protection
5.2 Institutional and Procedural Arrangements
5.2.1 Institutional Set-Up
5.2.2 Enforcement 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
5.2.3 Transparency and Public Information
5.2.4 Ex post SD Review of IIA Implementation
5.3 Additional Fields of Cooperation on sd-Investment Linkages
5.3.1 Climate Change Mitigation and Renewable Energy Sources
5.3.2 Human Rights
5.3.3 Development Cooperation
5.3.4 Anti-Corruption
5.4 Fostering the Responsibility of Foreign Investors
5.4.1 Direct 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
5.4.2 Issues of Enforcing Investor Obligations
5.5 SD Integration during the Negotiation Phase of EU IIA S
5.5.1 The Procedure of Sustainability Impact Assessments
5.5.2 The Methodology of Sustainability Impact Assessments
5.5.3 Sustainability 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
5.5.4 Benefits 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
6.1.1 Fair and Equitable Treatment
6.1.2 Indirect Expropriation
6.1.2.1 Clarifying the Meaning of Indirect Expropriation
6.1.2.2 Permitted Regulation
6.1.3 A Specific Provision on the Right to Regulate
6.1.3.1 Reaffirming the Right to Regulate
6.1.3.2 Regulations on State Subsidies
6.1.4 The Post-Establishment Obligation of Non-Discrimination
6.1.5 General 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
6.2.1 Pre-Establishment Rights
6.2.2 Prohibitions of Market Access Restrictions
6.2.3 Prohibitions of Performance Requirements
6.3 The Notion of Investment: Limited SD Integration under EU IIA S
6.3.1 Narrowing Down the Scope of the Definition
6.3.2 Enumerating Certain Criteria
6.3.3 In Accordance with Host State Law
6.4 Procedural Aspects of Investor-State Dispute Resolution Relevant for SD
6.4.1 Transparency and amicus curiae Participation
6.4.2 Exclusions 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
7.1.1 Preambles and Objectives Provisions
7.1.2 Embedding EU IIA S in the Global SD Agenda
7.2 The Relationship between Provisions on Investment and TSD Chapters
7.2.1 Mutual Reinforcement and Coherence
7.2.2 The Right to Regulate—A Crosscutting Issue
7.2.3 Mutual Exclusion Concerning Dispute Settlement
7.3 General Interpretative Techniques
7.3.1 Object and Purpose
7.3.2 Contextual Interpretation
7.3.3 Evolutionary Interpretation
7.4 Methods for the Balancing between Competing Interests
7.4.1 Integration
7.4.2 Proportionality Analysis
7.4.3 Standard 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
