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Antonin Scalia Law School George Mason University Journal of International Commercial Law ANTONIN SCALIA LAW SCHOOL GEORGE MASON UNIVERSITY JOURNAL OF INTERNATIONAL COMMERCIAL LAW ARTICLES: AFTER LISBON: REGIONALIZATION, STANDARDIZATION, AND THE RISE OF SOCIAL AND ENVIRONMENTAL FACTORS IN EU INTERNATIONAL INVESTMENT AGREEMENTS JULIA JOHNSON EUCLIDIAN PARALLELISM, LEGAL PLURALISM AND LEGAL TRANSPLANTS VIS-À- VIS TRANSPOSING THE CISG INTO THE UK LEGAL ORDER KATERINA GEORGIADO NOTES: PATENT PROTECTION REGULATION AND THE RIGHT TO HEALTH: RIPE FOR DISCUSSION IN RENEGOTIATING KORUS-FTA AERIN KIM FATCA: WHO FORGOT TO ATTACH THE CARROT TO THE STICK? RICH WHITE VOLUME 10 FALL ISSUE NUMBER 1 JOURNAL OF INTERNATIONAL COMMERCIAL LAW VOLUME 10 FALL ISSUE NUMBER 1 CONTENTS ARTICLES AFTER LISBON: REGIONALIZATION, STANDARDIZATION, AND THE RISE OF SOCIAL AND ENVIRONMENTAL FACTORS IN EU INTERNATIONAL INVESTMENT AGREEMENTS Julia Johnson 1 EUCLIDIAN PARALLELISM, LEGAL PLURALISM AND LEGAL TRANSPLANTS VIS-À-VIS TRANSPOSING THE CISG INTO THE UK LEGAL ORDER Katerina Georgiado 29 NOTES PATENT PROTECTION REGULATION AND THE RIGHT TO HEALTH: RIPE FOR DISCUSSION IN RENEGOTIATING KORUS-FTA Aerin Kim 53 FATCA: WHO FORGOT TO ATTACH THE CARROT TO THE STICK? Rich White 78 JOURNAL OF INTERNATIONAL COMMERCIAL LAW VOLUME 10 FALL ISSUE NUMBER 1 Editor-in-Chief ZACHARY FAYNE Executive Editor Managing Editor Symposium Editor TAE ADERMAN REBECCA KIM PERRY RIHL Senior Articles Editor Senior Notes Editor Senior Research Editor WAI SAM LAO RICH WHITE REBECCA MAIETTA Research Editor AERIN KIM CANDIDATE MEMBERS AMANDA ALEXANDER CHAD CROWELL KELLY CROWE ARMON MIRIAN KIMBERLY ROTHENBERGER MELISSA SEVIER SARAH SMERLING JULIE ZHOU Faculty Advisor JEREMY RABKIN Cite as 9 GEO. MASON J. INT’L COM. L. ___ (2018) The George Mason Journal of International Commercial Law is published three times per year. The George Mason Journal of International Commercial Law can be contacted as follows: George Mason Journal of International Commercial Law 3301 N. Fairfax Drive, Arlington, VA 22201 http://www.georgemasonjicl.org/ The George Mason Journal of International Commercial Law is a traditional student-edited legal periodical at the George Mason University School of Law in Arlington, Virginia. Providing international scholars and practitioners a forum to exchange, develop, and publish innovative ideas, the Journal is uniquely situated to address the legal issues affecting international commerce. The Journal publishes scholarly, concise, and practical material from leading scholars and practitioners to provide a source of authority and analysis for the advancement of uniformity in the law underlying international commerce. Subscriptions: Single issues are available for download online at http://www.georgemasonjicl.org. Print versions are available by request to the Managing Editor at the mail address listed above or by email at: [email protected]. Single issues may be purchased for $15 per copy for domestic and $18 for foreign subscribers. Submissions: The Editors welcome submissions of unsolicited manuscripts. The George Mason Journal of International Commercial Law seeks to publish articles and essays making a significant, original contribution to the fields concerning international commerce. Footnotes should follow the form prescribed in The Bluebook: A Uniform System of Citation (20th ed. 2015). Articles must be both well written and completely argued at the time of submission. Manuscripts and editorial correspondence should be addressed to Senior Articles Editor, George Mason Journal of International Commercial Law, at the address listed above or by email at: [email protected]. ©2018 by Journal of International Commercial Law. All Rights Reserved. AFTER LISBON: REGIONALIZATION, STANDARDIZATION, AND THE RISE OF SOCIAL AND ENVIRONMENTAL FACTORS IN EU INTERNATIONAL INVESTMENT AGREEMENTS Julia Johnson* “One must never forget that monetary union . is ultimately a political project. It aims to give a new impulse to the historic movement toward union of the European states” -Giscard d’Estaing, drafter of the EU Constitution 1997 I. INTRODUCTION The Lisbon Treaty (hereinafter “Lisbon” or “TFEU”),1 which took effect on December 1, 2009, 2 has lasting implications for international investment policy in the European Union (hereinafter “EU”). These changes will affect bilateral investment treaties (hereinafter “BITs”)3 between EU and non-EU nations. 4 Further, Lisbon has started to change global investment flows by consolidating and centralizing the EU’s investment framework.5 Investment agreements may be increasingly standardized and regionalized. Consolidation will likely also promote the EU’s social and environmental goals by standardizing provisions in investment agreements. Strengthened by new authorities under Lisbon, the EU, operating through the European Council, upon recommendation by the European Commission (referred collectively herein as “EC”), 6 and European * J.D., Duke University School of Law. 1 Consolidated Versions of the Treaty on European Union, 2008 O.J. C 115/01; Lisbon Treaty on the Functioning of the European Union, 2008 O.J. C 115/01, available at http://eur- lex.europa.eu/legal-content/EN/TXT/?uri=OJ:C :2008:115:TOC [hereinafter TFEU]. 2 Press Release, European Commission “European Commission Welcomes the Entry Into Force of the Treaty of Lisbon,”(Dec. 1, 2009) (“The Treaty of Lisbon amends the current EU and EC treaties, without replacing them. It will provide the Union with the legal framework and tools necessary to meet future challenges and to respond to citizens’ demands.”). 3 A BIT “protect[s] the investment of an investor in the territory of a host country.” Sean Cumberlege & Bryan Neihart, THE LAW OF TRANSNATIONAL BUS. TRANSACTIONS § 23:27 (Ved Nanda & Ralph Lake eds., 2014). 4 Carrie E. Anderer, Bilateral Investment Treaties and the EU Legal Order: Implications of the Lisbon Treaty, 35 BROOK. J. INT’L L. 851, 854 (2010). 5 Id. at 875; Thomas Daemen, Why the European Union’s Lisbon Treaty Matters to In- House Counsel, 28 No. 5 ACC Docket 88, 90 (2010). 6 TFEU, art. 207 (“The European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall adopt the measures defining the framework for implementing the common commercial policy . The Commission shall make recommendations to the Council, which shall authorise it to open the necessary negotiations. The Council and the Commission shall be responsible for ensuring that the agreements negotiated are compatible with internal Union policies and rules.”). 2 GEO. MASON J. INT’L COM. L. [VOL. 10:1 Parliament (hereinafter “EP”), has greater capacity to centralize and govern BITs entered into by EU and non-EU nations.7 The EU’s capacity to create a common investment policy, and to enter into BITs on behalf of all EU countries, may affect BITs entered into by individual EU member states with non-EU nations. 8 After Lisbon, non-EU nations may be concerned with possible drawbacks of a centralized EU investment policy. They may believe that centralization will disadvantage investors, causing a greater risk of expropriation or diminished returns.9 Investors may be discouraged from investing, fearing the uncertainty will reduce the intended benefits of their investments.10 Despite these drawbacks, Lisbon signifies a unification of EU member nations as they work together to reach shared goals. Unification will in turn benefit investors.11 Exclusive competence means the exclusive authority to govern over a particular topic or area.12 How the EC and EP will use the exclusive competence authorized by Lisbon will become apparent with time.13 The EU and its member nations currently have shared competence over many governance decisions, 14 meaning that the member nations may pursue binding acts on behalf of that EU member nation when the EU does not act.15 When enacting policies, the EP incorporates non-economic factors such as political, social, environmental, and human rights issues. After Lisbon, many of these considerations may play greater importance in international investment policies.16 Political, collective, and social issues, such as humanitarian and environmental rights, will likely be more prominent in future extra-EU BITs, (BITs entered into between EU members and non-EU nations), as well as EU investment decisions.17 With the increased importance of the EP and the EC, member states will be more likely to abide by non-economic policies, positively reforming extra-EU BITs and developing a more transparent, efficient, and sustainable EU investment framework.18 Lisbon’s changes to the EU investment structure may improve relationships between EU and non-EU nations, which may 7 Id. at 861; TFEU art. 207. 8 Id. at 875. 9 Id. at 875. 10 Id. 11 Id. 12 TFEU, art. 5(3). 13 See e.g., John R. Schmertz & Mike Meier, EU Publishes the Text of the Treaty of Lisbon and Charter of Fundamental Rights on the European Union, 13 INT’L L. UPDATE 205, 220 (2007). 14 “FAQ on the EU Competence[s] of the European Commission Powers,” THE EUROPEAN CITIZENS’ INITIATIVE, http://ec.europa.eu/citizens- initiative/public/competences/faq (last visited Apr. 24, 2017). 15 Id. 16 Erika Szyszczak, Building a Socioeconomic Constitution: A Fantastic Object?, 35 FORDHAM INT’L L.J. 1364, 1369 (2012) (“The new emphasis upon social values and the role of solidarity is significant in a global economy increasingly leaning towards neoliberal values and a European economy heavily shaken by economic recession.”). 17 Id. 18 Id. at 1389. 2018] AFTER LISBON 3 increase investment flows. Finally, extra-EU BITs often possess a stigma of bias in favor of investors in the host state, particularly in favor of the EU, but over time, this conflict of interest will likely be relaxed due to the rise of exogenous concerns in investment policy, thus linking policy with investor protection. Such exogenous concerns may include environmental, social, and public policy protections both within and outside the EU. However, as will be described further, political differences between the EC and EP could result in a disagreement between the EP and EC on key investment policies, leading to a potential deadlock. This article will review the EU’s international investment policy from several different parameters.
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