Conflicting Conceptions of Constitutionalism: Investment Protection from the European Union and International Perspectives

Abstract

International investment law as it is currently being transformed in the European Union (EU) proves to be an ideal test case for assessing global constitutionalism—whether it is in fact occurring and, if so, the direction of this process. While economic rights are protected by the laws of the EU, many of these rights were protected by bilateral treaties before internal mechanisms existed. The EU is now disregarding the protections that exist outside of the normative framework of the EU treaties, resulting in conflicting ‘constitutional’ rights. Following the decision by the Court of Justice of the European Union in Achmea, the dispute resolution provisions in intra-EU investment treaties are now considered incompatible with the laws of the EU. The decision was based on ‘mutual trust’ and ‘sincere cooperation’ between the Member States, pointing to formalized constitutional values. These ideals and their reflection in the changing internal and external positions of the EU towards investor-state disputes speak to perceptions of investors’ rights, and thus imply transforming ideas of constitutionality with respect to those rights. Investment tribunals, convened under international treaties, however, have continued to uphold a different position regarding the specific rights of investors. An inevitable conflict emerges in the protection of similar rights, namely the right to certain standards of treatment and dispute resolution for private investors, revealing an incongruence in the realization of constitutional values. The following article examines more closely the incompatibility of these positions and analyses the consequences of these actions for the progression of a globally-relevant constitutionalism.