The EU as a Global Actor in the Post-Lisbon Era: Policy on International Investments and a Tale of Triple Fragmentation

AutorJosé Gustavo Prieto Muñoz
The EU as a Global Actor in the
Post-Lisbon Era: Policy on
International Investments and a
Tale of Triple Fragmentation
In December 2009, a period of European integration began that Eu-
ropean Union (EU) observers have called, with reference to the Lisbon
Treaty, the ‘Post-Lisbon’ era. e Lisbon Treaty is a fundamental text that
not only put an end to the previous decade of reform in Europe, but also
aected the internal distribution of competences within the EU. In partic-
ular, it allowed for the insertion (art 207 TFEU) of the term foreign direct
investment in the Union’s Common Commercial Policy. e addition of
these words signicantly expanded the exclusive competence of the EU,
thus generating concerns and expectations regarding how it would be used
by European institutions.
José Gustavo PRIETO MUÑOZ*
* PhD in Corporate Law and Economics – Doctor Europaeus, University of Verona,
(Italy). I wish to express my gratitude to the Max Planck Institute for Comparative
Public Law and International Law in Heidelberg (Germany), where a substantial
part of this chapter was written. Any inaccuracies or errors remain my own. All
websites were accessed on 29 April 2017.
At the end of 2015, during the negotiation of the Transatlantic Trade
and Investment Partnership (TTIP), the European Commission rst pro-
posed the concept of a permanent investment dispute resolution system
(court). is later materialized as the EU-Vietnam FTA was concluded,
and also appeared in the reviewed text of the Comprehensive Economic
and Trade Agreement (CETA).
is evolution of EU Investment policy has raised a series of funda-
mental legal questions that are internal to the European integration pro-
cess, such as: the distribution of competences between the member states
and the Union; the autonomy of EU law, which could be interpreted by
other adjudicative bodies besides the European Court of Justice; the nan-
cial responsibility of member states in cases where international obligations
are breached, etc. In this analysis, we have taken an external perspective on
the evolution of EU investment policy by asking what impact the post-Lis-
bon investment policy has had on the role of the EU as a global actor
and how this policy has undermined/enhanced the position of the EU in
the architecture of global economic governance. ese questions are even
more topical since the UK’s referendum for BREXIT, a development which
demonstrates how the credibility and eciency of the external dimensions
of EU policy will be tested in the upcoming years.
In this context, the present chapter will argue that the inuence of
the EU on economic governance as a whole will be considerably weakened
by its investment policy if it does not properly address the challenges of tri-
ple fragmentation –substantial, institutional, and methodological– that its
proposal for a permanent investment dispute resolution system will continue
to generate. It will further argue, that if there is a consistent approach to
reducing the third type of fragmentation (methodological), the other two
(substantial and institutional) can be controlled and adapted to the plural-
istic setting of the international legal arena. To advance this argument, the
chapter rst describes these three forms of fragmentation, and then goes on
to sketch a possible course of action.

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