INVESTIMENTI ESTERI DIRETTI NEL DIRITTO DELL'UNIONE EUROPEA. PROFILI SOSTANZIALI E PROCESSUALI

FOREIGN DIRECT INVESTMENTS IN EUROPEAN UNION LAW SUBSTANTIAL AND PROCEDURAL PROFILES The Lisbon Treaty has conferred upon the European Union exclusive external competence on FDI, now included in the Common Commercial Policy. This study focuses on the consequences which derive from the new allocation of competence, focusing on both the substantial and the procedural ones. As regards the substantial consequences, in the beginning it will be demonstrated that the new European competence has very wide boundaries, allowing it to regulate both the pre and post establishment phase of an investment transaction. This will provide – this was one of the outcomes reached with the conferral of competence – foreign investors with an uniform and well-defined legal regime of investments within the European Union. Secondly, we will follow the steps taken by the European Institutions in order to define a European Investment Policy. In this regard, attention will be paid on the EU Regulation no. 1219/2012, recently issued to define a transitional regime for the extra-EU BITs still in force. Thirdly, we will analyse the contents of the future European agreements, now under negotiation, with third countries such as Canada, U.S.A., China and few ASEAN members. Despite the few official publications of the agreement, it will be possible to reach some conclusions with regard to the investment policy that Europe intends to follow. As regards the procedural consequences, the relation will be analysed between the European Union law and arbitration proceedings, which originate right from European BITs. Once showed that those proceedings are perfectly lawful within the European Union and the arbitration clause will be included in the future investment agreements, the study will specifically concentrate on the law applicable by arbitrators. It will then be showed how International and European Law can interrelate and we will focus on the interpretative tools, given to the arbitrators in order to allow them to compose the conflicts, which may originate from the two above mentioned sources of law. The aim is to assess that there is not a hierarchy of supranational legal sources but, despite that, the conflicts of law between them can be settled by looking at the value the norm defends. In other words, through the objection in defence of the European public order, European norms can have the primauté on the international source. Otherwise, it will be the international norm to prevail.