Foreign investment screening in the European Union The state of exception in investment law

This thesis argues that the institutionalisation of security as a dominant paradigm under the FDI Screening Regulation constitutes a state of exception in EU investment law. Against the backdrop of successive crises, investment regulation has shifted from a paradigm of liberalisation to one defined by security. Drawing on the theories of Carl Schmitt, Giorgio Agamben, and Achille Mbembe, the thesis identifies three defining features of this state of exception: the tension between the security exception and the rule of law, the friend-enemy paradigm, and the conflation of security and economic interests.
The European framework for investment screening is characterised by an open-ended scope of application, indeterminate screening criteria, broad discretion, a lack of transparency, and limited judicial review. These characteristics blur the boundary between law and politics and subtly erode the rule of law. Investment screening law, policy, and decision practice are furthermore shaped by a friend-enemy paradigm that frames foreign investors as trusted allies or security threats. The thesis demonstrates that investment screening pursues a wide range of security, economic and geopolitical interests. To resolve the state of exception in EU investment law, the framework should be reformed through the specification of clear, objective, and non-discriminatory screening criteria.