Abstract
The application and implications of the principle of autonomy for international investment agreements concluded by the Member States and the European Union (EU) has become a recurrent theme before the Court of Justice of the European Union. The decisions in Achmea and Opinion 1/17 show that autonomy unfolds differently in intra- and extra-EU investment relations and can only be preserved in the latter context. The present article examines this difference and, in light of Opinion 1/17, seeks to explain how and why the autonomy of EU law can be preserved for international investment agreements through careful treaty design. In addition, it sheds some light on the practical consequences for the EU’s and the Member States’ external investment relations.
Highlights
Is the mechanism for the resolution of disputes between investors and states foreseen in the Comprehensive Economic and Trade Agreement (CETA) between the European Union (EU) and Canada compatible with the EU Treaties, including fundamental rights? In Opinion 1/17, the Court of Justice of the European Union (CJEU) answered this question with a resounding ‘yes’
By giving the green light to the CETA investment court system (ICS), the CJEU has paved the way for establishing a Multilateral Investment Court (MIC), which is currently negotiated under the auspices of the United Nations Commission on International Trade Law (UNCITRAL) and envisioned to replace the ICS at a future point in time
Autonomy-related questions have arisen with regard to both intra-EU BITs (Achmea) and EU international investment agreements (IIAs) (Opinion 1/17)
Summary
Is the mechanism for the resolution of disputes between investors and states foreseen in the Comprehensive Economic and Trade Agreement (CETA) between the European Union (EU) and Canada compatible with the EU Treaties, including fundamental rights? In Opinion 1/17, the Court of Justice of the European Union (CJEU) answered this question with a resounding ‘yes’.1 By giving the green light to the CETA investment court system (ICS), the CJEU has paved the way for establishing a Multilateral Investment Court (MIC), which is currently negotiated under the auspices of the United Nations Commission on International Trade Law (UNCITRAL) and envisioned to replace the ICS at a future point in time. Belgium asked the CJEU to provide an Opinion pursuant to Article 218(11) Treaty on the Functioning of the European Union (TFEU) about the compatibility of the ICS with (a) the principle of autonomy of EU law; (b) the principle of equal treatment and the requirement of effectiveness; and (c) the right of access to and the independence and impartiality of courts.. The present article examines the application of the principle of autonomy in the field of investment law and its implications for the design of international investment agreements (IIAs) by the EU and the Member States. It analyses the procedural and material safeguards that were enshrined in the design of CETA and seeks to outline why these safeguards were deemed sufficient by the CJEU for preserving the autonomy of EU law.
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