This intends to be a very empirical Essay. It lets the facts (legal facts, but facts nevertheless) speak for themselves. Part I of this Essay first examines the not granting of national treatment by European Union ("EU")-and EU Member States'-law to companies controlled by third-country nationals or other companies. Part II shows that bilateral investment treaties ("BITs") concluded by EU Member States do grant such national treatment horizontally and without any sectorial exception (contrary to US BITs that do include a list of exceptions, as shown in Part III). Part IV explains why BITs (not only EU Member States' BITs, but all BITs) contradict Article II of the General Agreement on Trade in Services ("GATS"). Part V argues that EU Member States' BITs are contrary to the AETR-ERTA jurisprudence of the Court of Justice of the European Union ("CJ" or "Court") on the distribution of competences between the European Community ("EC" or "Community") and its Member States. Readers will have to assess whether the mess exists (and whether it matters); if they agree that there is a mess, then they can proceed to Part VI, which tries to identify who is to blame for it.
The Contradictory Overlapping of National, EU, Bilateral, and the Multilateral Rules on Foreign Direct Investment: Who is Guilty of Such a Mess,
34 Fordham Int'l L.J. 1377
Available at: https://ir.lawnet.fordham.edu/ilj/vol34/iss5/9