CJEU Opinion 1/17: Keeping International Investment Law and EU Law Strictly Apart

2019 ◽  
Vol 4 (1) ◽  
pp. 240-259
Author(s):  
Nikos Lavranos
Keyword(s):  
Financial Burden ◽  
Trade Agreement ◽  
International Investment ◽  
Court System ◽  
Eu Law ◽  
The European Union ◽  
International Investment Law ◽  
Investment Protection ◽  
Investment Law ◽  
The Eu

With Opinion 1/17, the Court of Justice of the European Union (CJEU) approved the Investment Court System (ICS) contained in the Comprehensive Economic Trade Agreement (CETA) between the EU and Canada. This means that the EU can proceed with the ratification process of the investment protection part of CETA and the other free trade agreements it has concluded, and which contain a similar ICS. However, as the author illustrates, the approval of the ICS is conditioned by a complete isolation of EU law from international investment law. More specifically, the CJEU made clear that the ceta tribunals operate outside the EU legal order and have no power to interpret or apply EU law. At the same time, the CJEU highlighted the importance that the ceta Parties adopt supplemental rules for reducing the financial burden for access to the ICS for small and medium-sized enterprises (SMES). Additionally, the CJEU rejected the currently existing possibility that binding joint interpretations of the ceta Parties could have retroactive effect. In sum, the approval of the ICS by the CJEU enables the European Commission to continue to develop the multilateral investment court (MIC) within the uncitral Working Group iii as long as it follows the blueprint of the CETA ICS.

A Paradigm Change: The CETA Investment Chapter

2021 ◽  
Vol 24 (3) ◽  
pp. 437-484
Author(s):  
Marc Bungenberg ◽  
August Reinisch
Keyword(s):  
Dispute Settlement ◽  
Trade Agreement ◽  
International Investment ◽  
Court System ◽  
International Investment Law ◽  
Investment Protection ◽  
Investment Law ◽  
Investment Agreements ◽  
The Eu

The Investment Chapter of the Comprehensive Economic and Trade Agreement (CETA) can be seen as an unofficial blueprint of future EU Investment Agreements and Chapters. It was developed under immense public pressure and had to fulfil multiple conditions resulting from the EU constitutional framework. This contribution highlights the political and juridical background of EU investment policy, and then analyses the most significant new approaches in international investment law - both with regard to substantive standards and investor-State dispute settlement - as exemplified in the CETA. With regard to the substance, it can be witnessed that states are more proactive in defining investment protection standards, leaving less discretion for adjudicators. With regard to dispute settlement, the EU managed to introduce a completely new Investment Court System (ICS) with preselected adjudicators and an appellate mechanism. In light of all these developments, this article argues that we are currently facing a complete change of paradigms in EU investment law, heading towards the EU’s long-term goal of establishing a Multilateral Investment Court (MIC).

A Sceptical Analysis of the Enforcement of ISDS Awards in the EU Following the Decision of the CJEU on CETA

2020 ◽  
Vol 5 (1) ◽  
pp. 92-145
Author(s):  
Brady Gordon
Keyword(s):  
Dispute Settlement ◽  
Trade Agreement ◽  
International Investment ◽  
Court System ◽  
European Law ◽  
Eu Law ◽  
The European Union ◽  
Investment Arbitration ◽  
Formal Procedures ◽  
The Eu

This paper provides a sceptical analysis of the enforcement of investor-state dispute settlement (ISDS) awards against the European Union or its Member States in a conflict with EU norms following Opinion 1/17 of the CJEU on the Canada-EU Comprehensive Economic and Trade Agreement (CETA). It argues that the CETA decision has obscured, but has failed to alleviate, three fundamental incompatibilities between sui generis doctrines of EU law and essential tenets of international investment arbitration. It is not at all clear whether the CJEU accepts the jurisdiction of the ISDS tribunal in Chapter 8-F of CETA to rule on a breach of CETA contrary to the CJEU’S interpretation of the validity of EU acts under the EU’s own rules, and the CETA decision does nothing to modify the formal procedures and doctrines by which the autonomy and supremacy of EU law have supplanted conflict of law norms permitting the application of arbitral awards over conflicting European law. The article cautions that Canadians may prove little better able to enforce arbitral awards against deprivations of CETA rights by EU norms than if the cjeu had simply ruled that the CETA Tribunal must be subsumed within the EU court system itself.

Micula v Romania between International Investment Law and European Law – The UK Supreme Court Judgement – the Final or the NEXT PIece of the Puzzle?

De Jure ◽  
2021 ◽  
Vol 12 (1) ◽  
Author(s):  
Steliyana Zlateva ◽  
◽  
◽  
Keyword(s):  
Supreme Court ◽  
International Investment ◽  
European Law ◽  
Eu Law ◽  
International Investment Law ◽  
Investment Treaty ◽  
Investment Law ◽  
Uk Supreme Court ◽  
The Uk ◽  
The Eu

The Judgement of the United Kingdom’s Supreme Court in the long Micula v. Romania investment treaty dispute confirmed that the arbitral awards of the International Centre for Settlement of Investment Disputes (ICSID), rendered by tribunals established under intra-EU BITs, could be enforced in the UK. The Micula case concerns the interplay between the obligations under the ICSID Convention and EU law. In particular, it addresses the question of whether the award obtained by the Micula brothers against Romania constitutes state aid prohibited by EU law, as well as the enforcement obligations under the ICSID Convention in view of the EU duty of sincere cooperation.

The CETA Opinion of the European Court of Justice and its Implications—Not that Selfish After All

2019 ◽  
Vol 22 (3) ◽  
pp. 503-521 ◽  
Author(s):  
Christian Riffel
Keyword(s):  
Dispute Settlement ◽  
Trade Agreement ◽  
European Court Of Justice ◽  
Court System ◽  
Eu Law ◽  
Investment Protection ◽  
Constitutional Principle ◽  
Court Of Justice ◽  
European Court ◽  
The Eu

Abstract In Opinion 1/17, the European Court of Justice (ECJ) found the investment court system compatible with European Union (EU) law. The ruling concerned the mechanism in the Comprehensive Economic and Trade Agreement (CETA) but the Court’s reasoning is equally applicable to other investment courts as established, for example, in the EU’s investment protection agreements with Singapore and Vietnam. This outcome was far from clear, given that in the past the accession to international dispute settlement bodies regularly foundered on the autonomy of the EU legal order. The present article parses the CETA Opinion and explores its implications. It particularly focuses on autonomy as a constitutional principle and its advancement in Opinion 1/17. Importantly, the ECJ accepted the superiority of a court created by international agreement in relation to the said agreement. Furthermore, it clarified that it is not prerequisite for the Court to rule first on the meaning to be given to an act of EU law before that act can be the subject matter of an investment dispute. Finally, the pdrerogative of the EU to autonomously set the level of protection of a public welfare goal must be secured in a treaty for the EU to join it.

scholarly journals Regulatory autonomy and regulatory chill in Opinion 1/17

2020 ◽  
Author(s):  
Laurens Ankersmit
Keyword(s):  
Dispute Settlement ◽  
Trade Agreement ◽  
International Investment ◽  
Public Interests ◽  
International Investment Law ◽  
European Court ◽  
Negative Effect ◽  
Investment Law ◽  
Investment Agreements ◽  
The Eu

This article analyses the aspect of the Court’s reasoning in Opinion 1/17 that focuses on the regulatory autonomy of the Parties to the Comprehensive Economic and Trade Agreement (CETA) to decide on levels of protection of public interests. The European Court of Justice’s (ECJ) introduction of regulatory autonomy under EU law coincides with the wider debate around ‘regulatory chill’ under international investment law. This article finds the ECJ’s concept of regulatory autonomy to be narrower than that of the regulatory chill hypothesis put forward by critics of investor-state dispute settlement (ISDS). It further analyses the ECJ’s reasoning that the CETA’s investment tribunals do not have jurisdiction to call into question the levels of protection sought by the EU. In so doing, it will critically evaluate the certainty of the ECJ’s promise that there will be no negative effect on public interest decision-making through CETA’s investment chapter. Finally, it will explore the legal consequences of Opinion 1/17 for future awards and investment agreements.

scholarly journals Values and objectives of the EU in light of Opinion 1/17: ‘Trade for all’, above all

2020 ◽  
Vol 4 (1) ◽  
Author(s):  
Ivana Damjanovic ◽  
Nicolas de Sadeleer
Keyword(s):  
Rule Of Law ◽  
Trade Agreement ◽  
Fundamental Rights ◽  
Equal Treatment ◽  
European Convention ◽  
Court System ◽  
Eu Law ◽  
The European Union ◽  
The Rule Of Law ◽  
The Eu

In Opinion 1/17 the Court of Justice of the European Union (CJEU) ruled that the new Investment Court System (ICS) in the Canada–EU Comprehensive Economic and Trade Agreement (CETA) is compatible with the EU constitutional framework. This article examines the CJEU’s analysis of the ICS in its Opinion through the prism of EU values and objectives. Given the judicial nature of the ICS, the article unfolds around the concept of the rule of law. The scope and the content of this core EU value are considered under both EU law and the European Convention on Human Rights (ECHR). In particular, the ICS is analysed in light of the two core rule-of-law requirements: equal treatment and the independence of courts, enshrined in Articles 20 and 47 of the Charter of Fundamental Rights (CFR). Importantly, in Opinion 1/17 the CJEU for the first time applied Article 47 CFR to a court outside the EU judicial system. While the CJEU ruled that the ICS complies with the CFR rule-of-law criteria, this article argues that it nevertheless falls short of the rule-of-law standards required for judicial bodies under EU law. The article demonstrates that the CJEU prioritises free and fair trade as the CETA’s core objective, rather than the rule of law, and endorses the ICS as the conditio sine qua non of guaranteeing such trade. The Court’s findings have wider consequences for the rule of law in international law as the EU continues to pursue the establishment of a Multilateral Investment Court (MIC).

New Developments in the Interaction between International Investment Law and EU Law

2010 ◽  
Vol 9 (3) ◽  
pp. 409-441 ◽  
Author(s):  
Nikos Lavranos
Keyword(s):  
International Investment ◽  
Eu Law ◽  
Member States ◽  
New Developments ◽  
International Investment Law ◽  
European Institutions ◽  
Investment Law ◽  
Legal Security ◽  
New Situation ◽  
The Eu

AbstractThis article analyzes new developments in the interaction between international investment law and EU law. The analysis focuses on the consequences resulting from the recent changes that have been introduced by the Lisbon Treaty and the jurisprudence of the ECJ. The author argues that the new exclusive competence of the EU regarding foreign direct investment (FDI) will have major implications for the existing Member States’ BITs as well as for the interaction with international investment law. While it is too early for a full assessment of this new situation, it has already become clear that the European institutions and the supremacy of EU law will significantly reduce the powers of the Member States, thereby fundamentally changing the current situation. Throughout this process, ensuring legal security for investors and Contracting Parties will become of utmost importance.

scholarly journals THE FOREIGN INVESTORS AND NATIONALITY CONCEPT UNDER INTERNATIONAL LAW

2020 ◽  
Author(s):  
Gabriela Belova ◽  
◽  
Gergana Georgieva ◽  
Anna Hristova ◽  
◽  
...  
Keyword(s):  
Dispute Settlement ◽  
Trade Agreement ◽  
International Investment ◽  
Foreign Investors ◽  
International Investment Law ◽  
Investment Law ◽  
Definition Of ◽  
Investment Agreements ◽  
Mixed Agreements ◽  
The Eu

Although in the last years the international community has adopted a broad approach, the definition of foreign investors and foreign investments is still very important for the development of international investment law. The nationality of the foreign investor, whether a natural person or legal entity, sometimes is decisive, especially in front of the international jurisdictions. The paper tries to follow the examples from bilateral investment agreements as well as from multilateral instrument such as the International Centre for Settlement of Investment Disputes (ICSID) Convention. An important case concerning Bulgaria in past decades is also briefly discussed. The authors pay attention to some new moments re-developing the area of investment dispute settlement within the context of EU Mixed Agreements, especially after the EU-Canada Comprehensive Economic and Trade Agreement.

International Investment Law and Arbitration: History, Modern Practice, and Future Prospects

2018 ◽  
Vol 1 (1) ◽  
pp. 1-64
Author(s):  
Borzu Sabahi ◽  
Ian A. Laird ◽  
Giovanna E. Gismondi
Keyword(s):  
International Law ◽  
Trade Agreements ◽  
International Investment ◽  
Legal Issues ◽  
Court System ◽  
The European Union ◽  
Foreign Investments ◽  
International Investment Law ◽  
Investment Law ◽  
The Impact

AbstractInternational Investment Law is one of the most dynamically growing fields of International Law as shown by the volume of Bilateral Investment Treaties (bits), and investment chapters in a growing numbers of regional and mega-regional trade agreements. This paper explores the origin, evolution and operation of International Investment Law. It discusses the main actors, the protections afforded to foreign investments and investors, and the content of modernbits. The legal issues and challenges International Investment Law faces today are brought into perspective. Particularly, this paper provides an assessment of the measures put forth by the European Union aimed at transforming the traditional investor-State arbitration system to an Investment Court System. An examination of thenaftare-negotiations is also presented, including the impact thatceta, a trade deal between theeuand Canada could have in the outcome of the current re-negotiations.

Justice and Authority in Investment Protection

2021 ◽  
Vol 0 (0) ◽  
Author(s):  
Oisin Suttle
Keyword(s):  
Distributive Justice ◽  
International Investment ◽  
International Consensus ◽  
International Investment Law ◽  
Investment Protection ◽  
Global Distributive Justice ◽  
Investment Law

Abstract What role should concerns about distributive justice play in international investment law? This paper argues that answers to fundamental and contestable questions of social and global distributive justice are a necessary, if implicit, premise of international investment law. In particular, they shape our views on the purpose of investment law, and in turn determine the scope of authority that investment law can claim, and that states should accord it. The implausibility of achieving international consensus on these questions constitutes a substantial objection to the harmonization of investment law or the consistent operation of a multilateral investment court.

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