Emerging Principles of European Investment Protection—After the Example of the Comprehensive Economic and Trade Agreement (CETA)

Abstract

Investment protection is an important, if not essential component of the transatlantic economic and trade agreements that are being concluded between the European Union and its partners. In this chapter we deal with European investment protection under CETA, including how this may be affected by recent case law of the European Court of Justice. Both provide important additions to the growing body of principles of European investment protection. I argue that CETA’s system of the resolution of disputes between investors and states is a legal tool with a useful function, separate from what investors might achieve in domestic courts, and that it is in conformity with EU constitutional law after Opinion 2/13. We will also see that under this mixed agreement, the EU will be able to make a unitary representation, sometimes even in actions for which the Member States are responsible. On the other hand, EU Member States may sometimes have to respond for treatment required by or coming under the remit of the EU. This may include actions before the European Court of Human Rights (ECtHR) under the European Convention of Human Rights (ECHR). I conclude that these particularities do not detract from the usefulness of CETA’s system of the resolution of disputes between investors and states. In view of its innovative features, it is quite possible that the provisions in CETA will be a model for future investment agreements of the EU with other developed economies. They are real proof of the ability of the EU and its Member States to speak with one voice in international relations.