Suchergebnisse

At the time of a paradigm change 'Foreign Investment, Strategic Assets and National Security' is a timely analysis of the changing attitude towards foreign investment in major economies, namely the United States of America, the People?s Republic of China, Australia, Canada, and Germany, France and the United Kingdom as representatives of the European Union.0Foreign investment has grown steadily for decades and the de-regulation of international trade and investment was a widely accepted trend, particularly in developed countries. Increasingly, however, this development is encountered by opposition. Globalisation and socio-economic effects of mergers and acquisitions of domestic firms by foreign investors receive less support from the general public. Concerns about national security, protection of new technologies and competitiveness are raised. This leads national and regional legislators to develop new mechanisms to control foreign investments, particularly in light of national security. The widely adopted and traditional ex post approach linked to investment treaties is now enhanced by an increased focus on the phase prior to the actual implementation of the investment.0This legal development and the new screening systems are captured in this book and it is explained how the present paradigm change is affecting the legal rules in practice

The right of the minor to be heard in civil procedures involving him or her is very well enshrined in Spanish legislation both national and international to which Spain is a party. The principle is fully accepted and the obligation for judges and legal operators to be aware of it is perfectly drafted. Nevertheless, reality shows that the principle lacks a straightforward implementation in Spanish legal practice. The principle misses a clear, uniform and unanimous understanding and several issues relating to its practice are growingly under controversy. The analysis of the existing Spanish case law fosters the understanding of the right of the minor to be heard in all proceedings affecting him or her to be still "under construction" needing further interpretation and development of its exact meaning and scope.2 This has a negative impact on the effectivity of the principle and may affect the minor and the necessary preservation of his or her best interest.

Las inversiones extranjeras han fluido como nunca durante las últimas décadas, en el marco de una aceptación generalizada de sus beneficios. Esta situación, sin embargo, comienza a alterarse de forma acelerada en múltiples lugares del planeta. La presencia de un entorno geoestratégico más complejo y la aproximación crítica de muchos Estados hacia la globalización y lo que ella significa, está consolidando una visión más cautelosa hacia la libre circulación de inversiones extranjeras que, entre otros efectos, se plasma en la elaboración de normativas más restrictivas. La Unión Europea es un espacio económicamente integrado, muy abierto a las inversiones extranjeras y dotado además, de una política comercial común todavía en construcción que incluye a aquellas no es ajena a estos movimientos. Un espacio en el que, sin embargo, es igualmente patente el aumento del recurso a los mecanismos de screening de las inversiones extranjeras, constituyendo un síntoma adicional del momento de cambio que vive el Derecho de las inversiones internacionales, en un contexto de creciente cautela respecto de ellas. La pandemia del covid-19, con sus devastadores efectos económicos y sociales, introduce un elemento de tensión adicional a la materia en la ue. La necesidad de preservar sectores estratégicos de la economía europea choca con el principio de libre circulación de inversiones extranjeras que ha caracterizado a la Unión desde sus inicios, planteando dudas y premoniciones, sobre el futuro que viene. O que, quizás, ya está aquí. International investment flows have grown steadily since 1990, among a global acceptance of their benefits. However, this situation is changing sharply. Globalization and foreign investment are under siege, and a more cautious approach to both of them is ascertainable in many places. Among other consequences, this leads to the enactment of more restrictive regulations towards them. The European Union is an economically integrated space, extremely open to foreign investment. Since 2009, the Common Commercial Policy embodies foreign direct investment. Nevertheless, the consolidation of this new policy coexists with the development of screening mechanisms of foreign investment on national security grounds. Some European countries have developed them, and the European Union, itself, also enacted a Regulation on this topic in March 2019. The covid-19 pandemic, with its devastating economic and social effects, introduces an additional element of tension in this topic in the eu. The need to preserve strategic sectors of the European economy collides with the principle of free movement of foreign investment that has characterized the Union since its inception, raising doubts and premonitions about the future to come on this area A future, that, perhaps, is already here.

The establishment of a mechanism at the European level for screening FDI, on the grounds of national security and public order, constitutes a major step in implementing the EU investment policy. To create an effective system, it must be based on clear common rules, provide certainty and ensure judicial redress.

Las ADR/MASC han dejado hoy de ser mecanismos alternativos a la justicia estatal para pasar a ser entendidas como complementarias a esta, alterando de tal suerte la propia noción de acceso a la justicia. Dentro de esta categoría genérica, la mediación constituye hoy la institución que atrae mayor interés doctrinal y práctico y que, de alguna manera, refleja también de forma más nítida las ventajas que, se entiende, acompañan a este tipo de mecanismos. Anclada directamente en la voluntad de las partes, la mediación presenta como uno de sus puntos débiles la necesidad de asegurar la ejecutabilidad del acuerdo alcanzado por ellas en el marco de un procedimiento de mediación. Si bien existe coincidencia en la necesidad de no hacerlo depender exclusivamente de la voluntad de las partes, el estudio de las diversas soluciones legislativas existentes refleja la presencia de diferencias notables entre ellas, tanto en su filosofía como en las soluciones diseñadas. Ello se hace especialmente patente al contrastar la postura mayoritariamente mantenida en la Unión Europea, que subordina la ejecución del acuerdo a su previa homologación por una autoridad pública. Con la presente en las normativas iberoamericanas, donde resulta habitual que el acuerdo venga dotado de fuerza ejecutiva directa. ADR devices are no longer approached as alternatives to state courts. On the contrary, they are growingly understood as complementary to them. This change directly affects the notion of access to justice. Today, mediation is the institution that attracts most of the doctrinal and practical interest. Despite all the benefits that arise of mediation, the institutions also show some problems that must be tackled The enforceability of the settlement reached by the parties in the framework of a mediation proceeding is, by far, one of the most relevant issues to be dealt with. Despite the global acceptance of the need to ensure its enforceability, national legal systems provide many different approaches and solutions to this issue. This is especially evident when comparing the position usually supported in the European Union, and which stands on the need to homologate the settlement reached by a public authority for the agreement to be enforceable. The solution is upheld in many Iberoamerican countries, where the direct enforceability of the agreement is the main rule.

The process of liberalization of international trade and of Foreign Direct Investment (FDI) has constituted a broadly accepted trend during the last few decades and FDI inflows have expanded constantly since the end of the 1980's. However, signs of a certain crisis of the positive and one-way attitude towards international trade and FDI exist nowadays. The financial crisis, the change in the origin of the FDI derived from the new geo-strategic reality arising out of the crisis, the growing participation of foreign sovereign actors in international trade and investment, the changing environment for national security or the quest to protect technologies and sectors of the economy considered vital for the host country, its sovereignty and competitiveness have led many countries to set forth mechanisms to evaluate FDI proposals before they are implemented. Korea is not alien to this trend. As a matter of principle the protection of national security is a legitimate goal of any state. However, there is a risk of these kinds of instruments being politicised, and the potential negative consequences of a broad interpretation of the notion of national security remain. The creation of these screening systems has taken place in an atmosphere of liberalisation of investment, and their introduction has ultimately constituted a sort of exception to it. But this atmosphere is changing negatively very quickly and the peril to use these screening systems as an excuse to impose hidden limitations on free trade and investment increases. The Republic of Korea, as many other countries in the world, is not vaccinated against this danger.

The process of liberalization of international trade and of Foreign Direct Investment (FDI) has constituted a broadly accepted trend during the last few decades and FDI inflows have expanded constantly since the end of the 1980's. However, signs of a certain crisis of the positive and one-way attitude towards international trade and FDI exist nowadays. The financial crisis, the change in the origin of the FDI derived from the new geo-strategic reality arising out of the crisis, the growing participation of foreign sovereign actors in international trade and investment, the changing environment for national security or the quest to protect technologies and sectors of the economy considered vital for the host country, its sovereignty and competitiveness have led many countries to set forth mechanisms to evaluate FDI proposals before they are implemented. Korea is not alien to this trend. As a matter of principle the protection of national security is a legitimate goal of any state. However, there is a risk of these kinds of instruments being politicised, and the potential negative consequences of a broad interpretation of the notion of national security remain. The creation of these screening systems has taken place in an atmosphere of liberalisation of investment, and their introduction has ultimately constituted a sort of exception to it. But this atmosphere is changing negatively very quickly and the peril to use these screening systems as an excuse to impose hidden limitations on free trade and investment increases. The Republic of Korea, as many other countries in the world, is not vaccinated against this danger.

Foreign investment flows have increased steadily in the last decades, although the financial crisis and the role played by certain emerging economies, mainly PRC, are negatively influencing them. A change of trend is not ascertainable yet, but some backlash against foreign direct investment exists in particular countries. The development of mechanisms of control of foreign investment shows this change of attitude. The situation is especially relevant in the European Union because of the embryonic condition of the Common Investment Policy. The publication of the Proposal for a Regulation establishing a framework for screening of foreign direct investments into the European Union reflects the relevance of the topic at the same time that offers a first text for debate.

Until 2009, the legal regime of international investments in the EU was characterised by its very high degree of fragmentation due to the complex division of competences between the EU and its member states. While the former has mainly intervened to promote greater liberalisation of capital markets, member states have usually been concerned with the post-establishment aspects of international investments. Only since 2009, with the entrance into force of the Treaty of Lisbon and the consequent extension of the Common Commercial Policy (CCP) to cover FDI, has the EU has gained full competence in FDI. However, the exclusive competence of the EU as regards FDI is still under construction and its full implementation by the EU will take time. Fears about Chinese State Controlled Enterprises (SCEs) have increased steadily in Europe over time. There are growing concerns about investment projects from this and other countries, in many cases sovereign-driven investment, targeting certain strategic areas of the EU economy. This situation has supported the debate about the need for a common EU response to foreign investment in certain strategic sectors. Growing concerns about the potential control of large areas of the economy of EU member states by foreign corporations have increased the popularity in some EU countries of national screening systems to determine on the grounds of national interests what FDI is and is not acceptable: France or Germany are good examples of this move. At the same time, FDI originating from the PRC and other emerging countries has provided a forceful push for the development of a common European screening system to evaluate FDI on national security grounds. EU and national authorities are aware of the fact that foreign investors are in many cases interested in acquiring certain technology or patents rather than in running a firm. In order to prevent this situation, the Proposal for a Regulation of the European Parliament and of the Council establishing a framework for screening of foreign direct investments into the European Union was published by the European Commission on 13 September 2017. This article analyses in depth the Proposal and its relationship with the development of the EU Common Policy on Investment.