Squaring the Circle Balancing Sustainable Development and Investment Protection in the EU Investment Policy

摘要

The controversies that have surrounded the negotiations of both the Comprehensive Economic and Trade Agreement (CETA) and the Transatlantic Trade and Investment Partnership (TTIP) have underlined the difficulties arising out from the adoption of a truly common EU investment policy. Non-governmental organizations and citizens have questioned the transparency and legitimacy of investment arbitration during the negotiations. These recent developments show that, while it is crucial for the EU to develop a well-articulated investment policy, including substantial guarantees for the foreign investors, the new policy should respect the right to regulate on the part of the states. Certainly, the EU should strike the balance between sustainable development and investment protection, avoiding the risk of a regulatory chill, which may lead governments to waive the adoption of legitimate regulatory measures for the environment, health, or natural resources when faced with the threat of arbitration. In this balancing exercise, the EU should also address the perceived threat that the new investment agreements may hinder the protection of the environment and the powers of member states (MS) to adopt, maintain or enforce any measure considered appropriate to ensure that investments are compatible with environmental concerns.