Free Movement of Capital and Foreign Direct Investment: The Scope of Protection in EU Law
TOC

Banking / Finance

Free Movement of Capital and Foreign Direct Investment The Scope of Protection in EU Law

By Steffen Hindelang
Oxford University Press July 2009

Specifications

ISBN-13
9780199572656
Publisher
Oxford University Press
Publication
July 2009
Format
Hardback
Jurisdiction
European Union ? Countri(es) for reference only

Details

  • Presents the first full-length analysis of the protection of foreign investors under EU law
  • Provides a timely reconstruction of the case law on free movement of capital, at a time when the principle is being undermined by the rise of neo-protectionism in Member States
  • Offers a valuable analysis of the relationship between EU internal market law and the international law of foreign investment

The scope of protection offered to foreign investors by EU law has become a matter of intense political debate. Neo-protectionist policies are on the rise within EU Member States, who are struggling to acclimatise to increasing inward direct investment from developing countries. Strict regulations are being implemented to control the flow of this investment, undermining the principle of free movement of capital. Are such policies permitted under EU law? What impact does EU law have on foreign direct investment? This book addresses these questions through a coherent doctrinal reconstruction of the EC Treaty provisions on free movement of capital in a third country context.

Opening with a timely restatement of the central features of the EU law of free movement of capital, the book then asks the central question: What rights does a private market participant, engaged in cross-border direct investment originating from or directed to a non-EU Member State, enjoy by virtue of the EC Treaty? The book argues that in principle, the provisions on free movement of capital apply the same liberal standards irrespective of whether intra Community or third country direct investment is involved. Hence, those who participate in third country direct investment enjoy essentially the same guarantees by virtue of the provisions on free movement of capital as those active in intra Community direct investment. Having established the legal doctrine, the book then examines the limits on restrictions to free movement, including financial regulation and discriminatory tax regimes.

Readership: Academics and practicing lawyers working on EU internal market law, and international investment law.

Table of Contents

Introduction
I: Preparing the Foundation: Economic Rationale for the Liberalization of Capital Movements and the Art of Political Compromise
II: Foreign Direct Investment and the Material Scope of Application of Article 56(1)EC
III: The Influence of Competing Freedoms on the Scope of Application - Direct Investment between Free Movement of Capital and the Freedom of Establishment
IV: Which Level of Protection? - The Scope of the Prohibition of Restriction: Equal Treatment and Market Access
V: Personal Scope of Application
VI: Exceptions to the Freedom Applicable to Intra-Community and Third Country Situations
VII: Exceptions to the Freedom Exclusively Applicable to Third Country Contexts
Perspectives - 'Anxiety is the Dizziness of Freedom'
Annex: Summary: Position Statements
Bibliography

About the Author

Steffen Hindelang, Senior Research Associate and Lecturer, Humboldt University Berlin, School of Law, Walter Hallstein-Institute of European Constitutional Law

Steffen Hindelang studied law and economics at the Universities of Bayreuth, Sheffield and Marburg. He was admitted to the degree of Master of Laws in International, European and Commercial Law of the University of Sheffield in 2001 and to the degree of Doctor iuris (Ph.D. equivalent) of the Eberhard Karls University Tübingen, School of Law in 2008. From 2004 until 2009 he was research associate and lecturer at the aforementioned institution. He is also a fully qualified German lawyer.

Reviews

"Hindelang has presented a vividly written piece of academic craftsmanship. He argues strongly for a liberal understanding of the internal market as an internationally open market. His focus is on investors and not on a presumption in favour of State sovereignty...Hindelang builds a strong opposition against the current interpretation of the Treaty rules by the ECJ and probably the mainstream in German academic literature. His study is worth reading: a thorn in the flesh of the current doctrine." - Christoph Ohler, Common Market Law Review, Volume 47, Issue 2, 2010

"...this monograph will be an obligatory reference for all those who want to know how the free movement of capital is regulated in the EU...its up-to-date analysis of the ECJ's case law, its doctrinal effort towards the systematization of economic freedom rules, and its constant references to the German debate issues not fully dealt with in the English literature, make Hindelang's book a major contribution to the field" - Fernando Losada Fraga, Universidad de Leon, European Journal of International Law, 21, 2010

"Hindelang makes extensive use of the voluminous German language scholarship on free movement of capital. This is one of the great attractions of his work, as well as offering rigorous analysis of case law and of the underlying principles, he opens a window and lets in the refined output of that extensive legal literature" - Leo Flynn, European Law Review, Vol 35, 892

"...an important and timely contribution to an area where in-depth research in English literature has hitherto been relatively scarce...It is...written in a captivating style and many interesting arguments will certainly spark further debate. This study is also a mandatory reference in the post-Lisbon era, not least because it contains elements of a view of how the internal market mechanism circumscribes the Union's treaty-making practice in the field of FDI." - Philip Strik, Cambridge Law Journal

"An important and timely contribution to an area where in-depth research in the English literature has hitherto been relatively scarce...It is written in a captivating style and many interesting arguments will certainly spark further debate. This study is also a mandatory reference in the post-Lisbon era" - Philip Strik, Cambridge Law Journal

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