Abstract
Recently, there has been a rather intensive debate about mostly national rules restricting the access of foreign investors to certain sectors of the economy, even in OECD countries which have generally been regarded as rather open when it came to admission of foreign investment. As opposed to many developing countries, which often make the admission of foreign investments directly dependent upon individual authorisations, OECD countries have usually pursued a fairly open investment policy. A few have even made market access commitments in bilateral investment treaties (BITs) or in investment chapters of free trade agreements (FTAs).1 Beyond that, there was the plan to negotiate admission rules within the Energy Charter Treaty2 and in the WTO context.3 However, neither forum has been very successful in moving this liberalisation agenda ahead. Instead, a number of recent events evidence a more restrictive trend.
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Notes
- 1.
In particular, the USA and Canada have entered into such admission obligations. See infra text at note 75.
- 2.
See infra text at note 57.
- 3.
See infra text at note 32.
- 4.
Foreign Investment & National Security Act of 2007 (FINSA); see also http://www.ustreas.gov/offices/international-affairs/cfius/docs/Summary-FINSA.pdf.
- 5.
See Müller-Ibold, Foreign Investment in Germany — Restrictions based on Public Security Concerns and their Compatibility with EU Law, in this volume, pp. 103.
- 6.
Draft directive of the European Parliament and of the Council amending Directive 2003/55/EC concerning common rules for the internal market in natural gas, COM(2007) 529 final, 19 September 2007.
- 7.
Draft directive of the European Parliament and of the Council amending Directive 2003/54/EC concerning common rules for the internal market in electricity, COM(2007) 528 final, 19 September 2007.
- 8.
The Draft Gas and Electricity Directives were proposed together with a Draft regulation of the European Parliament and of the Council establishing an Agency for the cooperation of energy regulators, COM(2007) 530 final, a Draft regulation of the European Parliament and of the Council amending Regulation (EC) No 1228/2003 on conditions for access to the network for cross-border exchanges in electricity, COM(2007) 531 final, and a Draft regulation of the European Parliament and of the Council amending Regulation (EC) No 1775/2005 on conditions for access to the network for cross-border exchanges in natural gas, COM(2007) 532 final.
- 9.
See Haslinger, Grundrechtsverletzungen durch ownership unbundling? Wirtschaft und Wettbewerb 57 (2007), pp. 343–350; Kahle, Die eigentumsrechtliche Entflechtung (Ownership Unbundling) der Energieversorgungsnetze aus europarechtlicher und verfassungsrechtlicher Sicht, Recht der Energiewirtschaft (2007), pp. 293–299; Malmendier/Schendel, Unbundling Germany’s Energy Networks, Journal of Energy and Natural Resources Law 24 (2006), pp. 362–383; Lecheler/Herrmann, Energierechtliches Unbundling und EG-Wettbewerbsrecht, Wirtschaft und Wettbewerb 55 (2005), pp. 370–379.
- 10.
Explanatory Memorandum to the Draft directive of the European Parliament and of the Council amending Directive 2003/55/EC concerning common rules for the internal market in natural gas [hereinafter: Explanatory Memorandum], COM(2007) 529 final, 19 September 2007, 2007/0196 (COD), pp. 4 et seq.
- 11.
Explanatory Memorandum, p. 7 (“[…] no supply or production company active anywhere in the EU can own or operate a transmission system in any Member State of the EU. This requirement applies equally to EU and non-EU companies”.)
- 12.
Article 7 Draft Gas Directive (“Unbundling of transmission systems and transmission system operators
-
1.
Member States shall ensure that as from [date of transposition plus 1 year]:
-
(a)
each undertaking which owns a transmission system acts as a transmission system operator;
-
(b)
the same person or the same persons are not entitled:
-
(i)
to directly or indirectly exercise control over an undertaking performing any of the functions of production or supply, and to directly or indirectly exercise control or hold any interest in or exercise any right over a transmission system operator or over a transmission system, or (ii) to directly or indirectly exercise control over a transmission system operator or over a transmission system, and to directly or indirectly exercise control or hold any interest in or exercise any right over an undertaking performing any of the functions of production or supply;
-
(i)
-
(c)
the same person or the same persons are not entitled to appoint members of the supervisory board, the administrative board or bodies legally representing the undertaking, of a transmission system operator or a transmission system, and to directly or indirectly exercise control or hold any interest in or exercise any right over an undertaking performing any of the functions of production or supply;
-
(d)
the same person is not entitled to be a member of the supervisory board, the administrative board or bodies legally representing the undertaking, of both an undertaking performing any of the functions of production or supply and a transmission system operator or a transmission system.
-
(a)
-
2.
The interests and rights referred to in paragraphs 1(b) shall include, in particular:
-
(a)
the ownership of part of the capital or of the business assets, or
-
(b)
the power to exercise voting rights, or
-
(c)
the power to appoint members of the supervisory board, the administrative board or bodies legally representing the undertaking, or
-
(d)
the right to obtain dividends or other shares of the benefits”.)
-
(a)
-
1.
- 13.
Cf. Draft Gas Directive, preambular para. 7 (“Member States should therefore be required to ensure that the same person or persons are not entitled to exercise control, including through minority blocking rights on decisions of strategic importance such as investments, over a production or supply undertaking and, at the same time, hold any interest in or exercise any right over a transmission system operator or transmission system. Conversely, control over a transmission system operator should preclude the possibility of holding any interest in or exercising any right over a supply undertaking”.)
- 14.
Draft Gas Directive, preambular para. 11.
- 15.
Explanatory Memorandum, p. 6 (“In some instances, vertically integrated energy companies may be forced to dispose of some of their assets, notably their transmission networks, or to hand over the operation of such assets to a third party, in order to comply with the proposed requirements of effective unbundling. But there does not appear to be any alternative to the options proposed if we are to ensure the full independence of the TSOs”.)
- 16.
See supra note 9.
- 17.
Article 7a Draft Gas Directive.
- 18.
See supra note 12.
- 19.
See also Schmidt-Preuß, Energieversorgung als Aufgabe der Außenpolitik — Rechtliche Aspekte, Recht der Energiewirtschaft (2007), p. 281 (285).
- 20.
Explanatory Memorandum, p. 7.
- 21.
Draft directive, preambular para. 14 (“Without prejudice to the international obligations of the Community, the Community considers that the gas transmission system sector is of high importance to the Community and therefore additional safeguards are necessary regarding the influence of third countries in order to avoid any threats to Community public order and public security and the welfare of the citizens of the Community. Such measures are also necessary for ensuring compliance with the rules on effective unbundling”.)
- 22.
See UNCTAD (ed.), Admission and Establishment. UNCTAD Series on issues in international investment agreements, 1999, p. 7; Joubin-Bret, Admission and Establishment in the Context of Investment Protection, in: Reinisch (ed.), Standards of Investment Protection, 2008, pp. 9–28.
- 23.
Explanatory Memorandum, p. 7.
- 24.
See infra text at note 81.
- 25.
See infra text at note 78.
- 26.
See infra text at note 94.
- 27.
See supra text at note 23.
- 28.
Explanatory Memorandum, p. 7.
- 29.
See infra text at note 74.
- 30.
See infra text at note 34.
- 31.
See Singapore Ministerial Declaration, adopted on 13 December 1996, WT/MIN(96)/DEC, available at http://www.wto.org/english/thewto_e/minist_e/min96_e/wtodec_e.htm.
- 32.
The Doha Declaration expressly refers to “modalities for pre-establishment commitments based on a GATS-type, positive list approach”. Doha Ministerial Declaration, adopted on 14 November 2001, WT/MIN(01)/DEC/1, 20 November 2001, available at http://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_e.htm, para. 22.
- 33.
See WTO, Doha Working Programme, Decision adopted by the General Council on 1 August 2004 (“July Package”), WTO Doc. WT/L/579 of 2 August 2004, para. 1 lit. g (“Relationship between Trade and Investment, Interaction between Trade and Competition Policy and Transparency in Government Procurement: the Council agrees that these issues, mentioned in the Doha Ministerial Declaration in paragraphs 20–22, 23–25 and 26 respectively, will not form part of the Work Programme set out in that Declaration and therefore no work towards negotiations on any of these issues will take place within the WTO during the Doha Round”.)
- 34.
See Article I(2) GATS.
- 35.
Article I(2)(c) GATS.
- 36.
Article XVI(1) GATS provides: “With respect to market access through the modes of supply identified in Article I, each Member shall accord services and service suppliers of any other Member treatment no less favourable than that provided for under the terms, limitations and conditions agreed and specified in its Schedule”.
- 37.
Article XVI(2)(a) GATS.
- 38.
Article XVI(2)(b) GATS.
- 39.
Article XVI(2)(c) GATS.
- 40.
Article XX(1)(a) GATS.
- 41.
Article XX(3) GATS.
- 42.
Services Sectoral Classification List, MTN.GNS/W/120, 10 July 1991.
- 43.
See Conditional Initial Offer, Communication from the European Communities and its Member States, TN/S/O/EEC, 10 June 2003, p. 1 [“In this offer, the individual sectors and sub-sectors are identified in accordance with the classification list in Document MTN.GNS/W/120 or other internationally recognised classification (e.g. Financial Services Annex) and corresponding CPC number wherever possible”.]
- 44.
The reference at this entry of the Services Sectoral Classification List is to No. 7131 of the UN Central Product Classification which refers to “Transportation of petroleum and natural gas”.
- 45.
See WTO Services database online http://tsdb.wto.org/wto/WTOHomepublic.htm (last visited 15 January 2009).
- 46.
Conditional Initial Offer, Communication from the European Communities and its Member States, TN/S/O/EEC, 10 June 2003.
- 47.
Conditional Revised Offer, Communication from the European Communities and its Member States, TN/S/O/EEC/Rev.1, 29 June 2005.
- 48.
The offer clarifies that in general all EU Member States should remain unbound with regard to all four modes of supply. With regard to Mode 3 Lithuania has totally liberalised (“None”), while Hungary provides for concession agreements (“Services may be provided through a Contract of Concession granted by the state or the local authority”.) TN/S/O/EEC/Rev.1, p. 389.
- 49.
See supra note 23.
- 50.
See, on investment law in general, Dolzer/Schreuer, Principles of International Investment Law, 2008; Muchlinski/Ortino/Schreuer, The Oxford Handbook of International Investment Law, 2008; Reinisch, Standards of Investment Protection, 2008; Rubins/Kinsella, International Investment, Political Risk and Dispute Resolution, 2005.
- 51.
Energy Charter Treaty, Annex 1 to the Final Act of the European Energy Charter Treaty Conference, 17 December 1994; 34 ILM 381 (1995).
- 52.
Cf. Energy Charter Secretariat, Status of Membership — Energy Charter Treaty, 8 May 2007, available at http://www.encharter.org/fileadmin/user_upload/document/Public_ratification_Treaty.pdf (last visited 11 January 2009).
- 53.
Article 1(5) ECT.
- 54.
Article 13(1) ECT [“Investments of Investors of a Contracting Party in the Area of any other Contracting Party shall not be nationalized, expropriated or subjected to a measure or measures having effect equivalent to nationalization or expropriation (hereinafter referred to as ‘Expropriation’) except where such Expropriation is: (a) for a purpose which is in the public interest; (b) not discriminatory; (c) carried out under due process of law; and (d) accompanied by the payment of prompt, adequate and effective compensation”.]
- 55.
Article 10(1) ECT (“Each Contracting Party shall, in accordance with the provisions of this Treaty, encourage and create stable, equitable, favourable and transparent conditions for Investors of other Contracting Parties to make Investments in its Area. Such conditions shall include a commitment to accord at all times to Investments of Investors of other Contracting Parties fair and equitable treatment. Such Investments shall also enjoy the most constant protection and security and no Contracting Party shall in any way impair by unreasonable or discriminatory measures their management, maintenance, use, enjoyment or disposal. In no case shall such Investments be accorded treatment less favourable than that required by international law, including treaty obligations. Each Contracting Party shall observe any obligations it has entered into with an Investor or an Investment of an Investor of any other Contracting Party”.)
- 56.
Article 10(7) TEC (“Each Contracting Party shall accord to Investments in its Area of Investors of other Contracting Parties, and their related activities including management, maintenance, use, enjoyment or disposal, treatment no less favourable than that which it accords to Investments of its own Investors or of the Investors of any other Contracting Party or any third state and their related activities including management, maintenance, use, enjoyment or disposal, whichever is the most favourable”.)
- 57.
Article 10(2) TEC (“Each Contracting Party shall endeavour to accord to Investors of other Contracting Parties, as regards the Making of Investments in its Area, the Treatment described in paragraph (3)”.)
Article 10(3) TEC (“For the purposes of this Article, ‘Treatment’ means treatment accorded by a Contracting Party which is no less favourable than that which it accords to its own Investors or to Investors of any other Contracting Party or any third state, whichever is the most favourable”.)
- 58.
Information on the Supplementary Treaty by the Energy Charter Secretariat, available at http://www.encharter.org/index.php?id=33&L=1%2F%5C%5C%5C%27 (last visited 11 January 2009).
- 59.
Agreement on Partnership and Cooperation between the EC and their Member States and the Russian Federation (hereinafter: EC–Russia Partnership and Cooperation Agreement), Council Decision 97/800/EC, OJ L 327, 1.
- 60.
Cf. Article 1 EC–Russia Partnership and Cooperation Agreement.
- 61.
Article 30(a) EC–Russia Partnership and Cooperation Agreement.
- 62.
Chapter II EC–Russia Partnership and Cooperation Agreement.
- 63.
Article 28(1) EC–Russia Partnership and Cooperation Agreement (“The Community and its Member States of the one part and Russia of the other part, shall grant to each other treatment no less favourable than that accorded to any third country with regard to conditions affecting the establishment of companies in their territories and this in conformity with the legislation and regulations applicable in each Party”.)
- 64.
Article 28(2) EC–Russia Partnership and Cooperation Agreement (“Without prejudice to the reservations listed in Annex 3, the Community and its Member States shall grant to Community subsidiaries of Russian companies a treatment no less favourable than that granted to other Community companies or to Community companies which are subsidiaries of any third country companies, whichever is the better, in respect of their operation and this in conformity with their legislation and regulations”.)
- 65.
Article 28(5) EC–Russia Partnership and Cooperation Agreement (“The provisions of paragraphs 2 and 3 cannot be used so as to circumvent a Party’s legislation and regulations applicable to access to specific sectors or activities by subsidiaries of companies of the other Party established in the territory of such first Party”.)
- 66.
EC–Mexico Economic Partnership, Political Coordination and Cooperation Agreement, 8 December 1997, entered into force 1 October 2000, OJ L 276 of 28 October 2000.
- 67.
Decision No 2/2001 of the EU-Mexico Joint Council of 27 February 2001 implementing Articles 6, 9, 12(2)(b) and 50 of the Economic Partnership, Political Coordination and Cooperation Agreement (2001/153/EC), OJ L 070 of 12 March 2001, p. 7.
- 68.
Agreement establishing an association between the European Community and its Member States, of the one part, and the Republic of Chile, of the other part (= EC–Chile Association Agreement), 18 November 2002, OJ L 352 of 30 December 2002, p. 3.
- 69.
According to Article 97 EC–Chile Association Agreement “[…] each Party shall accord services and service suppliers of the other Party treatment no less favourable than that provided for under the terms, limitations and conditions agreed and specified in its Schedule […]”.
- 70.
EC/Chile Association Agreement, p. 1295.
- 71.
Council of the EU, Minimum Platform on Investment, 15375/06, 27 November 2006. See also Maydell, The European Community’s Minimum Platform on Investment or the Trojan Horse of Investment Competence, in: Reinisch/Knahr (eds.), International Investment Law in Context, 2008, pp. 73–93.
- 72.
Council of the EU, Minimum Platform on Investment, supra note 71, provisions on Coverage and Market Access.
- 73.
The new Article 188C Treaty of Lisbon (Article 207 Treaty on the Functioning of the European Union) replacing the existing Article 133 TEC on the Common Commercial Policy provides: “The common commercial policy shall be based on uniform principles, particularly with regard to changes in tariff rates, the conclusion of tariff and trade agreements relating to trade in goods and services, and the commercial aspects of intellectual property, foreign direct investment, the achievement of uniformity in measures of liberalisation, export policy and measures to protect trade such as those to be taken in the event of dumping or subsidies. The common commercial policy shall be conducted in the context of the principles and objectives of the Union’s external action”. (Emphasis added). On the controversy whether this new article comprises a treaty-making power regarding all aspects of FDI or only with regard to some aspects, see Ceyssens, Towards a Common Foreign Investment Policy? — Foreign Investment in the European Constitution, Legal Issues of Economic Integration 32 (2004), p. 3; Karl, The Competence for Foreign Direct Investment — New Powers for the European Union? Journal of World Investment & Trade 5 (2004), p. 3; Krajewski, External Trade Law and the Constitution Treaty: Towards a Federal and More Democratic Common Commercial Policy? Common Market Law Review 42 (2005), p. 91; also see Bungenberg, Going Global? The EU Common Commercial Policy after Lisbon, in this volume, p. 123.
- 74.
See Pollan, Legal Framework for the Admission of FDI (2006), pp. 76 ff; see also Gómez-Palacio/Muchlinski, Admission and Establishment, in: Muchlinski/Ortino/Schreuer (eds.), The Oxford Handbook of International Investment Law, 2008, pp. 227–258.
- 75.
Article 3(1) 2004 US Model BIT; Article 3(1) 2004 Canadian Model BIT.
- 76.
See Joubin-Bret, Admission and Establishment in the Context of Investment Protection, supra note 22.
- 77.
Article 2(1) 2004 German Model BIT.
- 78.
Agreement between the Government of the Republic of Nicaragua and the Government of the Italian Republic on the Promotion and Protection of Investments, 20 April 2004, available at http://www.unctad.org/sections/dite/iia/docs/bits/italy_nicaragua_it.PDF.
- 79.
Treaty between The Government of the United States of America and The Government of the Republic Latvia Concerning the Encouragement and Reciprocal Protection of Investment, 13 January 1995, available at http://www.unctad.org/sections/dite/iia/docs/bits/us_latvia.pdf.
- 80.
Article II US–Latvia BIT provides: “1. Each Party shall permit and treat investment, and activities associated therewith, on a basis no less favorable than that accorded in like situations to investment or associated activities of its own nationals or companies, or of nationals or companies of any third country, whichever is the most favorable, subject to the right of each Party to make or maintain exceptions falling within one of the sectors or matters listed in the Annex to this Treaty […]”. While the USA has made a reservation concerning the “energy and power production” sector in the annex mentioned in Article II(1), Latvia has not done so.
- 81.
See ICSID Case No. ARB/02/3, Aguas del Tunari S.A. v. Republic of Bolivia, Decision on Jurisdiction, 21 October 2005, para. 330, which permitted “BIT shopping” for purposes of availing oneself of BIT arbitration. (“It is not uncommon in practice, and — absent a particular limitation — not illegal to locate one’s operations in a jurisdiction perceived to provide a beneficial regulatory and legal environment in terms, for example, of taxation or the substantive law of the jurisdiction, including the availability of a BIT”.) The Aguas del Tunari tribunal found that it was not necessary to show that a company actually participated in the management of the Bolivian subsidiary. Rather, through its ownership interest it exercised control over its subsidiary, satisfying the nationality test under the BIT. In upholding jurisdiction, the tribunal concluded that “the language of the definition of national in many BITs evidences that such national routing of investment is entirely in keeping with the purpose of the instruments and the motivations of the state parties”. Ibid., para. 332.
- 82.
Pursuant to Article I(4) of the Italy–Nicaragua BIT: “The term ‘legal person’, with reference to either Contracting Party, shall mean any entity having its head office in the territory of one of the Contracting Parties and recognized by it, such as public institutions, corporations, partnerships, foundations and associations, regardless of whether their liability is limited or otherwise”.
- 83.
Pursuant to Article I(4) of the Italy–Nicaragua BIT: “The term ‘investor’ shall mean any natural or legal person of a Contracting Party investing in the territory of the other Contracting Party as well as any foreign subsidiaries, affiliates and branches controlled in any way by the above natural and legal persons”.
- 84.
See Ziegler, Most-Favoured-Nation (MFN) Treatment, in: Reinisch (ed.), Standards of Investment Protection, 2008, pp. 59–86; Acconci, Most-Favoured Nation Treatment and International Law on Foreign Investment, in: Muchlinski/Ortino/Schreuer (eds.), The Oxford Handbook of International Investment Law, 2008, pp. 363–406; Dolzer/Myers, After Tecmed: Most-Favored-Nation Clauses in Investment Protection Agreements, ICSID Review – Foreign Investment Law Journal, 19 (2004), pp. 49–60.
- 85.
ICSID Case No. ARB/97/7, Emilio Agustín Maffezini v. Kingdom of Spain, Decision on Jurisdiction, 25 January 2000, 5 ICSID Reports 396 (2002).
- 86.
ICSID Case No. ARB/AF/00/2, Technicas Medioambientales Tecmed S.A. v. Mexico, Award, 29 May 2003, 43 ILM 133 (2004); ICSID Case No. ARB/02/8, Siemens A.G. v. The Argentine Republic, Decision on Jurisdiction, 3 August 2004, 44 ILM 138 (2005); ICSID Case No. ARB/03/10, Gas Natural SDG, S.A. v. Argentina, Decision on Preliminary Questions on Jurisdiction, 17 June 2005.
- 87.
ICSID Case No. ARB/03/24, Plama Consortium Ltd. v. Bulgaria, Decision on Jurisdiction, 8 February 2005, 44 ILM 721 (2005); ICSID Case No. ARB/02/13, Salini Costruttori S.p.A and Italstrade S.p.A v. The Hashemite Kingdom of Jordan, Decision on Jurisdiction, 29 November 2004, 44 ILM 573 (2005); ICSID Case No. ARB/04/15, Telenor Mobile Communications A.S. v. Republic of Hungary, Decision on Jurisdiction, 13 September 2006, also see Ziegler, The Nascent International Law on Most-Favored-Nation (MFN) Clauses in Bilateral Investment Treaties (BITs), in this volume, p. ##.
- 88.
Article IV(2) of the Argentina–Spain BIT provides: “In all matters subject to this Agreement, this treatment shall not be less favorable than that extended by each Party to the investments made in its territory by investors of a third country”.
- 89.
See, e.g. Article 3(1) Lebanon–Italy BIT (“Each Contracting Party shall ensure fair and equitable treatment within its territory of the investments of the other Contracting Party. This treatment shall not be less favourable than that granted by each Contracting Party to the investments made within its territory by its own investors, or than that granted by each Contracting Party to the investments made within its territory by investors of any third State, if this latter treatment is more favourable”.)
- 90.
See, e.g. Article 4(2) 2004 US Model BIT (“Each Party shall accord to investments of investors of another Party treatment no less favorable than that it accords, in like circumstances, to investments of investors of any other Party or of a non-Party with respect to the establishtment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments”.)
- 91.
See, e.g. Article 3(2) Hong Kong–Italy BIT (“Each Contracting Party shall in its area accord investors of the other Contracting Party, as regards their management, maintenance, use, enjoyment or disposal of their investments, treatment not less favourable than that which it accords to its own investors or to investors of any other State, whichever is more favourable to the investor concerned”.)
- 92.
Article II(3) Canada–Latvia BIT (“Each Contracting Party shall permit establishment of a new business enterprise or acquisition of an existing business enterprise or a share of such enterprise by investors or prospective investors of the other Contracting Party on a basis no less favourable than that which, in like circumstances, it permits such acquisition or establishment by (a) its own investors or prospective investors; or (b) investors or prospective investors of any other state”.)
- 93.
See supra text at note 80.
- 94.
Cf. Article 43 TEC (“Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State. Freedom of establishment shall include the right to take up and pursue activities as self employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 48, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the Chapter relating to capital”.)
- 95.
See supra text at note 23.
- 96.
Cf. ECJ, Case 6/64, Flaminio Costa v ENEL, [1964] ECR, 585; ECJ, Case 11/79, Internationale Handelsgesellschaft, [1970] ECR, 1125; ECJ, Case 106/77, Amministrazione delle Finanze dello Stato v Simmenthal SpA, [1978] ECR, 629.
- 97.
See SCC Case No. 088/2004, Eastern Sugar B.V. v. Czech Republic, 12 March 2007.
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Reinisch, A. (2010). Protection of or Protection Against Foreign Investment?. In: Herrmann, C., Terhechte, J.P. (eds) European Yearbook of International Economic Law 2010. European Yearbook of International Economic Law, vol 1. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-540-78883-6_3
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