Legal Certainty During EU Accession: What Can a Foreign Investor in a Future Member State Legitimately Expect?

in Towards a Universal Justice? Putting International Courts and Jurisdictions into Perspective 290 (Dário Moura Vicente, ed., Brill 2015)

15 Pages Posted: 28 Sep 2017

Date Written: September 26, 2015

Abstract

Investment treaty arbitration tribunals should take a contextual, fact-specific approach to deciding whether foreign investors’ “legitimate expectations” were violated by actions of a state during the process of joining the European Union. An interpretation of fair and equitable treatment urged by the European Commission would impose a blanket rule that no action an acceding state takes purportedly to comply with EU law can ever violate an investor’s legitimate expectations. That approach fails to properly account for the time at which expectations are formed. The European Commission's proposed construction also makes it more difficult for a state that wants to join the EU to credibly commit to uphold promises to foreign investors. That might hinder the ability of such states to attract the foreign investment needed to develop the economy to the level required to join the European Union.

Keywords: bilateral investment treaties, European Union, accession

Suggested Citation

Blanchard, Sadie, Legal Certainty During EU Accession: What Can a Foreign Investor in a Future Member State Legitimately Expect? (September 26, 2015). in Towards a Universal Justice? Putting International Courts and Jurisdictions into Perspective 290 (Dário Moura Vicente, ed., Brill 2015), Available at SSRN: https://ssrn.com/abstract=3043468

Sadie Blanchard (Contact Author)

Notre Dame Law School ( email )

Notre Dame, IN 46556-0780
United States

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