Der Schutz von Auslandsinvestitionen in Deutschland im Mehrebenensystem: deutsches, europäisches und internationales Recht

Author： Schill Stephan

Publisher： Mohr Siebeck

ISSN： 0003-8911

Source： Archiv des oeffentlichen Rechts, Vol.135, Iss.4, 2010-10, pp. : 498-540

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Abstract

In Germany, the traditional perspective on the law of investment protection focused on the protection of German investments abroad. The protection of foreign investment in Germany, by contrast, was largely neglected as a topic for legal scholarship. Increasing inflows of foreign investment into Germany, and in particular the imminence of sovereign wealth funds from formerly capital-importing countries, such as China, however, raised awareness about the presence of foreign investors and the social, economic, and political power they may exercise.As a result of this debate, the German legislator in April 2009 passed a law empowering the Federal Ministry of Economics to enjoin investors from outside the European Union and the European Free Trade Association from taking over German companies on grounds of public policy or public security. In addition, since March 2009 Germany faces an international arbitration under the ICSID Convention for breach of the Energy Charter Treaty because of environmental restrictions imposed on the operation of a coal power plant planned by a foreign investor. Both developments illustrate the need for debate about the protection of foreign investors in Germany against governmental acts, but also raise the question to what extent international law restricts the leeway of the State to regulate in the public interest.Against this background, the present article analyzes the basic structures of the substantive and procedural framework concerning the protection of foreign investments in Germany. It focuses on market access for foreign investors as well as the protection of existing foreign investments and examines to which extent governmental conduct is limited by non-discrimination and absolute standards of treatment. The analysis encompasses an increasingly complex web of legal rules and principles at the national legislative and constitutional, European, and international levels. This multilevel framework embeds Germany firmly into a global market economy while also allowing for a balance between freedom of enterprise and the right to property, on the one hand, and the government's power to pursue legitimate public interests, on the other.