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

Abstract

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.