Repellent Forces: The CJEU and Investor-State Dispute Settlement

Abstract

The European Union (EU) aspires to conclude and ratify comprehensive trade agreements with Canada, Singapore, the USA and other States containing investment chapters which also provide for investor-State dispute settlement (ISDS). Surprisingly, the conditions and limits stipulated by the Treaties upon which the European Union is founded, i.e. the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU), have received only selective attention. When it comes to the establishment of dispute resolution bodies in international agreements concluded by the EU the concept of autonomy of EU law has proven to be the crucial touchstone. The role of this concept, mainly developed in a series of opinions of the Court of Justice of the European Union (CJEU), in limiting the Union’s leeway to subject itself to the current model of investor-State arbitration has so far not sufficiently been explored. This paper suggests that, in the light of recent decisions, it is not a purely theoretical possibility that the CJEU might take issue with the scope of ISDS currently contained in the CETA Text and similar draft treaties. The means available to sufficiently address the conditions stipulated by EU law might not just bring some modification to the current model of investor-State arbitration, but could completely alter its DNA.

Keywords: ISDS, TFEU, EU law, compatibility, investment chapters, investment law, autonomy, CETA, FTA, free trade agreement, European Union, Canada, USA, Court of Justice, ECJ, CJEU