The Role of the Court of Justice of the European Union in the Emerging EU Investment Policy

In: The Journal of World Investment & Trade

The transfer of an exclusive competence for “foreign direct investment” to the European Union (eu) in the Lisbon Treaty (2009) has raised numerous legal questions and has tasked the eu institutions with developing a policy field almost entirely new to them. One of the matters that requires thorough consideration is the role the Court of Justice of the European Union (cjeu) will enjoy with regard to this new policy, which role it may be given in investment agreements of the eu or to what extent its role may legally be excluded or diminished by iias. The policy documents published so far as well as leaked text of envisaged investment chapters of future eu trade and investment agreements disregard this matter entirely. Nevertheless, the cjeu will play a role on the basis of the provisions of the eu Treaties and it is largely for the Court itself to determine that role.

  • 23

     See Eeckhoutsupra note 10 pp. 331 et seq.

  • 26

    Reynoldssupra note 8 argues that the test applied by the cjeu so far is ill-suited to deal with the new-type trade agreements.

  • 39

    cjeu Opinion 1/92supra 37.

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