Full Protection and Security, Arbitrary or Discriminatory Treatment and the Invisible EU Model BIT

in The Journal of World Investment & Trade
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eu negotiations over the first EU-wide investment treaties are held in the absence of a formal negotiating model. And yet, new formulations of old standards underline the shift from old generation agreements and the so-called Member States’ ‘gold standard’ to the nascent ‘eu platinum standard’. In this light, the present chapter explores full protection and security, a protection closely affiliated with the fair and equitable treatment, and arbitrary or discriminatory treatment and advances some drafting suggestions. Particular attention is paid to protection against investment impairment through arbitrary or discriminatory measures, a standard that it is suggested legal economy could exclude from the scope of future eu treaties. Adopting a broad approach to the study of ‘arbitrary or discriminatory measures’, the analysis considers occurrences of treaty language that precludes those measures, especially in exceptions clauses, and argues in favour the inclusion of such language in the eu drafting ‘model’.

Full Protection and Security, Arbitrary or Discriminatory Treatment and the Invisible EU Model BIT

in The Journal of World Investment & Trade

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References

7

European Commissionsupra note 5 p. 11 (emphasis added).

12

European Commissionsupra note 5 p. 6.

14

European Parliamentsupra note 5 para. 9.

36

Free Trade Commissionsupra note 25 para. B.3: “A determination that there has been a breach of another provision of the nafta or of a separate international agreement does not establish that there has been a breach of Article 1105(1).”

58

Titisupra note 15 pp. 186–187.

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