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

Abstract

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 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 of the inclusion of such language in the EU drafting ‘model’.

Keywords: Full protection and security, arbitrary or discriminatory measures, EU Model BIT, Exceptions clauses, CETA, EU Member State best practices, EU platinum standard, EU investment policy

JEL Classification: F02, F13, F21, F53, K41, K39, K40, K10, K33, K49, K12, K19, K20, K29, H70, E22, H87, F50, F52