Study On Exclusive Jurisdiction Of EU FDI

The entry into force of the Lisbon Treaty makes foreign direct investment (FDI) beincorporated into the area of the EU common commercial policy, and lays a legal foundationfor EU’s exclusive jurisdiction of FDI and therefore expands the scope of the EU’s externalrelations power. This new power of EU will inevitably have a major impact on theinternational investment legal system. Current academic researches either focus their studiesof the Lisbon Treaty on the macro level, or pay much of their attention to the Treaty merelyfrom the perspectives of the common security and foreign policy. There is still a comparativelack of comprehensive and systematic theoretical studies for the investment treaty.Considering the importance of foreign investment for the economic development of a countryand the increasing overseas investment of China in the EU countries, systematic research onthe change of EU investment competence and the new exclusive competence of the EU isurgently in need.Adopting a combination of analyzing methods of an empirical one, a historical one and anormative one, the objective of the thesis is to conduct a comprehensive research on the EUFDI exclusive jurisdiction and to discuss the generation process and the content of EU FDIexclusive jurisdiction as well as how does the EU new power impact the existing and futureinternational investment treaties on the basis of the provisions of the Lisbon Treaty. Asidefrom the introduction and conclusion, the thesis is divided into five parts.Part I: The generation of EU FDI exclusive jurisdiction. In this part, I will study on thedivision of authority between EU and its member states and the development of the EUcommon commercial policy. It can then be drawn out that EU competence is divided intoexclusive power and non-exclusive power according to whether EU and the member statesshare the power in a particular area. Finally the first part proposes the Lisbon Treaty providesa legal basis for the EU FDI exclusive jurisdiction by incorporating FDI into the commoncommercial policy.Part II: The scope of EU FDI exclusive jurisdiction. This part will try to clarify thedifferent points of view of FDI concept both on the level of international law and the level ofEU law. And it will propose that (a) the indirect investment and portfolio investment shouldbe excluded from the EU exclusive competence on investment;(b) EU FDI exclusive jurisdiction is a comprehensive and integrated competence. This will thus resolve the problemthat the Lisbon Treaty does not clearly define the scope of this new competence of EU in thearea of investment.Part III: The nature and characteristics of EU FDI exclusive jurisdiction. The third partwill discuss the nature and characteristics of the EU FDI and will focus on the clarification ofthe centralization and exclusiveness, transition and double restriction of the EU FDI exclusivejurisdiction.Part IV: The main organs and procedures of exercising EU FDI exclusive jurisdiction.This part will mainly study on the organs and procedures of the EU common commercialpolicy with the conclusion that EU FDI exclusive jurisdiction shall apply the provisions of thecommon commercial policy. This solves the problem of lack of specific provisions about EUFDI exclusive jurisdiction in the treaty.Part V: The impact of EU FDI exclusive jurisdiction on bilateral investment agreements.This part researches the impact of EU FDI exclusive jurisdiction on BITs concluded betweenmember states of EU and BITs concluded between EU countries and non EU countries. Andthis part points out that:(a)EU members are not entitled to conclude new BITs with othermember states, but the existing BITs concluded between member states will continue to bevalid;(b) existing BITs between the EU member states and non EU states will stay valid too,however, new agreements with non EU states containing FDI issues should be negotiated byEU.