Assessing the CJEU’S Decisions in Achmea and Opinion 1/17 in Light of the proposed Multilateral Investment Court – Winner of the Essay Competition 2020

Abstract

This article argues that the CJEU’S recent jurisprudence on the principle of autonomy has been carefully crafted to lend support to the European Commission’s efforts to establish a Multilateral Investment Court. The CJEU has historically approached international courts and tribunals with caution. However, the Multilateral Investment Court is unlike other such bodies, because it is designed to supplant existing models of investment arbitration which the CJEU disdains. Moreover, certain features of the Multilateral Investment Court would be likely to make it especially attractive to the CJEU – namely its probable applicable law, judicial structure, and the control the CJEU could exert upon it. The surprising and sudden shift in tone between the CJEU’S recent decisions in Achmea and Opinion 1/17 becomes readily explicable when the two cases are viewed in light of the proposed Multilateral Investment Court. On analysis, the CJEU’S apparent support for the Multilateral Investment Court is best understood as the logical continuation of its longstanding jurisprudence on the principle of autonomy.