[PDF] The European Unions Foreign Direct Investment Screening Paradox eBook

Author : Stephan W. Schill
Publisher :
Page : 0 pages
File Size : 25,76 MB
Release : 2019
Category :
ISBN :

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This article analyzes the justification for the recent enactment in the European Union (EU) of a regulation establishing a framework for the screening of inward foreign direct investment (FDI). It argues that the new regulation, which constitutes a first step for a more comprehensive EU investment screening system, should not be considered to be exclusively aimed at protecting the internal market and defensive Union or Member State interests. Instead, the regulation has a tangible external economic policy justification and outlook because it can be seen as a starting point to build up, at the Union level, possibilities to limit inward FDI, which in turn can be used by the EU as a bargaining chip in its trade and investment negotiations with economically powerful countries, such as the United States or China, in order to achieve, on the basis of reciprocity, better access of EU investors to foreign markets. Paradoxically, establishing a framework for the screening of inward FDI at the Union level can therefore be seen as serving the EU's constitutionally enshrined goal to achieve further investment liberalization, rather than as shielding the internal market from undesired external influence.

Author : Jacques H.J. Bourgeois
Publisher : Kluwer Law International B.V.
Page : 345 pages
File Size : 18,36 MB
Release : 2019-12-18
Category : Law
ISBN : 9403519215

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Foreign direct investment (FDI) has grown considerably worldwide in recent decades, alongside the no-less considerable development of international ‘supply chains’. In the European Union (EU), stock held by foreign investors exceeds EUR 6 billion, while stock held in the rest of the world by EU investors exceeds EUR 7 billion. This important book analyses the current and proposed regimes of FDI screening in the EU, highlighting mechanisms designed to enhance FDI’s advantages and minimize its drawbacks. Leading practitioners, policymakers and academics discuss the 2017 European Commission proposal on FDI screening and its resulting Regulation, focusing on such issues and topics as the following: the economics of FDI screening; rising protectionism versus further investment liberalization; how the EU framework connects with WTO rules; the dangers of foreign investment in sectors essential to public order and security; how the EU regulatory layer interacts with FDI screening at Member State level; and perceived lacunae in the way the EU addresses incoming FDI. Two detailed examples of how FDI screening works in practice are included, along with a comparative view of FDI screening in the United States. Contributions commenting specifically on the EU Regulation deal with the process of adopting the Regulation and the impact of opposing views, and how the Regulation aligns with EU policy in the areas of trade, investment and competition. Companies engaged in FDI or financial services will appreciate the detailed analysis of issues raised by this new EU policy instrument. Practitioners active in competition law, particularly M&A, will welcome this clear commentary and analysis of a crucial component of EU policy in the related areas of trade and investment, and policymakers will be encouraged to consider whether further regulatory changes are called for.

Author : Carlos Esplugues
Publisher :
Page : 0 pages
File Size : 15,12 MB
Release : 2018
Category :
ISBN :

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Until 2009, the legal regime of international investments in the EU was characterised by its very high degree of fragmentation due to the complex division of competences between the EU and its member states. While the former has mainly intervened to promote greater liberalisation of capital markets, member states have usually been concerned with the post-establishment aspects of international investments. Only since 2009, with the entrance into force of the Treaty of Lisbon and the consequent extension of the Common Commercial Policy (CCP) to cover FDI, has the EU has gained full competence in FDI. However, the exclusive competence of the EU as regards FDI is still under construction and its full implementation by the EU will take time. Fears about Chinese State Controlled Enterprises (SCEs) have increased steadily in Europe over time. There are growing concerns about investment projects from this and other countries, in many cases sovereign-driven investment, targeting certain strategic areas of the EU economy. This situation has supported the debate about the need for a common EU response to foreign investment in certain strategic sectors. Growing concerns about the potential control of large areas of the economy of EU member states by foreign corporations have increased the popularity in some EU countries of national screening systems to determine on the grounds of national interests what FDI is and is not acceptable: France or Germany are good examples of this move. At the same time, FDI originating from the PRC and other emerging countries has provided a forceful push for the development of a common European screening system to evaluate FDI on national security grounds. EU and national authorities are aware of the fact that foreign investors are in many cases interested in acquiring certain technology or patents rather than in running a firm. In order to prevent this situation, the Proposal for a Regulation of the European Parliament and of the Council establishing a framework for screening of foreign direct investments into the European Union was published by the European Commission on 13 September 2017. This article analyses in depth the Proposal and its relationship with the development of the EU Common Policy on Investment.

Author : Jens Velten
Publisher : Springer Nature
Page : 371 pages
File Size : 31,46 MB
Release : 2022-07-19
Category : Law
ISBN : 3031056035

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Foreign Direct Investment (FDI) from third countries—a desirable form of investment to boost the EU’s economy or a threat to important EU and Member State interests that must be mitigated via FDI screening mechanisms? FDI screening is a complex, controversial and highly topical subject at the intersection of law, politics and economics. This book analyzes the political rationale behind FDI screening in the EU, reveals the legal limitations of current FDI screening mechanisms based on security and public order, and identifies legislative options for broader screening mechanisms in accordance with EU and international economic law. In particular, the book identifies the four main concerns in the EU regarding FDI from third countries: distortive competition effects; the lack of reciprocity on FDI treatment between the EU and the investor’s home country; objectives of the investor or their home country that may be detrimental to EU interests; and safety of private information. On this basis, the book analyzes the Screening Regulation (Regulation (EU) 2019/452) and its newly introduced screening ground “security or public order” and asks whether this and other similar screening grounds based on the notions of security, public order and public policy can address these concerns with regard to foreign investors. Based on an analysis of WTO law and EU primary law, it argues that they cannot. Thus, the question arises: Do the EU and Member States have the flexibility to adopt broader FDI screening mechanisms? To answer this question, the book examines the freedoms of capital movement and establishment in EU primary law, as well as various sources of international economic law such as, first and foremost, the WTO’s General Agreement on Trade in Services, but also other bi- and plurilateral trade and investment treaties, including the EU-China Comprehensive Agreement on Investment. In closing, the book identifies various legislative options for broader FDI screening mechanisms—and their shortcomings.

Author : Loïc Carcy
Publisher :
Page : 43 pages
File Size : 40,27 MB
Release : 2021
Category :
ISBN :

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The recent years showed a sudden rise in foreign direct investments (FDI) in the European Union, especially from China. This fact could be anecdotical, but globalisation has created unequal positions of power on the international stage. Targeted investments in dual use technologies or strategic sectors can then give a decisive position to a state towards others andhence weaponize interdependence. By adopting the Regulation 2019/452 establishing a framework for FDI screening, the European Union gives an answer to this phenomenon and stands to protect its strategic and critical assets, even if the framework remains solely about cooperation and without giving the European Commission a veto power. Through deterrence and political action, the EU takes back control.

Author : Lars Oxelheim
Publisher : Elsevier
Page : 536 pages
File Size : 28,70 MB
Release : 2004
Category : Business & Economics
ISBN : 9780080442457

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Countries create different type of incentives for foreign firms, such as; direct incentives/subsidies, tax relief, soft loans and preferred handling. This volume aims to analyze the impact of European Union on inward foreign direct investment in Europe and to discuss what type of effects are being created by this race for FDI.

Author :
Publisher :
Page : 0 pages
File Size : 35,82 MB
Release : 2021
Category :
ISBN : 9789276433873

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The first Annual Report on EU FDI Screening makes clear that: y one year on the Regulation and the EU-wide cooperation mechanism have already proven their clear value; y the EU screening cooperation mechanism ensures EU-wide oversight of foreign direct investment ("FDI") into the Union, and allows the European Commission and Member States a say in that respect; and y the EU remains open to FDI, with prohibitions or conditions being the clear exception.

Author : Erich Vranes
Publisher : Springer Nature
Page : 78 pages
File Size : 45,54 MB
Release : 2023-12-12
Category : Law
ISBN : 3031467248

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In recent years, there has been a worldwide intensification in the use of investment screening mechanisms. This surge is connected with political re-orientations, the rise of new economic powers, and security concerns. Despite the considerable effects that investment screening may have on international investment and trade, there is hardly any literature examining the consequences to be drawn from relevant WTO rules for investment screening. However, the importance of WTO law for such instruments is substantial not least due to the broad scopes of application of the GATT and GATS agreements. The risk that screening activities could be challenged before the WTO is underlined by pertinent panel reports. This book in particular uses the 2019 EU Screening Regulation as an example for illustrating the relevance that WTO law has for investment screening. It concludes that in the light of relevant WTO rulings screening activities undertaken for public order and security reasons may face considerable hurdles not least in the general exceptions and security exceptions of the GATT and the GATS.

Author : Cheng Bian
Publisher : Routledge
Page : 239 pages
File Size : 20,98 MB
Release : 2020-03-19
Category : Business & Economics
ISBN : 1000046311

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In recent years, China, the US, and the EU and its Member States have either promulgated new national laws and regulations or drastically revised existing ones to exert more rigorous government control over inward foreign direct investment (FDI). Such government control pertains to the establishment of an ex-ante review regime of FDI in the host state in sectors that are considered as ‘sensitive’ or ‘strategic’, with an aim to mitigate the security-related implications. This book conducts a systematic and up-to-date comparative study of the national security review regimes of China, the US, and the EU, using Germany as an exampling Member State. It answers a central research question of how domestic law should be formulated to adequately protect national security of the host state whilst posing minimum negative impacts to the free flow of cross-border investment. In addition to analyzing the latest development of the national security review regimes in aforementioned jurisdictions and identifying their commonalities and disparities, this book establishes a normative framework regarding the design of a national security review regime in general and proposes specific legislative recommendations to further clarify the law. This book will be of interest to scholars in the field of international and comparative investment law, investors who seek better compliance programs in the host state, and policymakers who aim for high-quality regulation on foreign investment.

Author : Yuwen Li
Publisher : Taylor & Francis
Page : 230 pages
File Size : 46,13 MB
Release : 2023-10-20
Category : Law
ISBN : 1000971074

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This book offers a dynamic introduction to the new developments on national security review of foreign direct investment (FDI) from the perspectives of both domestic law and international investment law. COVID-19 and the Russian invasion of Ukraine have intensified FDI screening to an unprecedented scale, yet its purposes, scope and potential impact remain ambiguous and controversial. The book first attests the legitimacy of FDI screening by using the theory of National Security Constitution. Part I explicates the national security, public order and public health exceptions clauses in international investment law and the novel EU Regulation on FDI screening. Part II provides an in-depth analysis of FDI screening in China, France, Germany, Italy, the Netherlands, Poland and the UK, which have either witnessed momentous changes in domestic law recently or have adopted new laws to cope with the growing security concerns. The book illustrates how States and the EU are using legal instruments to tackle exigent and emerging challenges and the complexity of national security emanated from foreign investment, in the context of evolving disruptive digital technologies and the structural change of the global economy. The volume will be of great value to a wide range of audiences including academics in investment and trade law, legal practitioners, in-house counsels, policymakers, business professionals and law and business students at the graduate level.