EU investment law and policy : the dawning of a new era? : questions of transparency, legal certainty and balance

The investment law regime is a sub-system of the international law family, which comprises about 3,000 similar, but not identical, agreements for the promotion and protection of investment. Investment law has often been depicted as a rather peculiar system, where elements of international law coexist with a dispute settlement form of private law, namely investment arbitration, which is also known as Investor-State Dispute Settlement. Despite these peculiarities, the system has worked relatively undisturbed for many years. It is only at the end the XX century, when the number of claims brought before international arbitration rocketed, that states came to fully realise the implications of their investment agreements, and to question the legitimacy of decisions rendered by arbitral tribunals. Three problems in particular turn out to be matters of concern. First, the lack of transparency; second, the lack of legal certainty; and third, the lack of a balance between the public and private interests of states and investors. Obviously, these three aspects do not cover all existing challenges, but they capture the most legally relevant problems affecting the investment regime today, and those most urgently in need of being addressed. Against this background, this thesis attempts to answer the following research question: What are the contributions of the recently negotiated EU investment agreements (IIAs) to these three problems? Idealistic pursuits of a multilateral treaty on investments have so far proven to be a failure, and even the idea that states might eventually come together with a universal agreement does not hold promise. Nevertheless, the ideas advanced by the EU IIAs offer an opportunity to reflect on whether the EU approach might pave the way for an investment system more acceptable to a larger number of countries, or at least to offer a workable compromise to achieve a substantially higher degree of homogeneity, transparency and recognition of legitimate development concerns.