The Evolution of Substantive Protection in EU International Investment Agreements: Taking Stock of the EU’s Early Treaty-Making Practice

Abstract

This article analyses the evolution of substantive investment protection in EU IIAs, i.e., CETA, EUSIPA, EVIPA, the TCA and the proposed CAI. It argues that the overall ‘balancing’ of ‘new-generation’ IIAs has changed. First, these agreements have reduced the scope of investment protection and prioritised market access, investment liberalisation, and investment facilitation by simplifying the transfer of funds and personnel and increasing transparency. Secondly, EU IIAs embrace a limited, yet predictable, approach to investment protection. Non-discrimination standards, NT and MFN, are comprehensively defined, compared to traditional European BITs. Absolute standards of protection, FET and expropriation, entail a balancing exercise in CETA but are missing in the TCA and the Proposed CAI. Investment liberalisation and pre-establishment market access have therefore outstripped post-establishment protection in importance. This approach suggests a re-evaluation by EU policymakers of the relative importance of openness over investor protection. Accordingly, investors should expect limited protection from these agreements. Investment standards, FET, MFN, European Union, CETA, CAI, TCA, Brexit