Legal Certainty and CETA: The Fallacy of a Single Treaty As a Solution

Abstract

Investment arbitration must fulfil the expectations of a wider audience and its demands for legal certainty, which is a sub-element of the Rule of Law. In particular, the Rule of Law prescribes that the law must be predictable and clearly defined in order for those subject to the law to be able to rely on it. Without legal certainty, those subject to the law will only be able to be guided by their guesses as to what the tribunal is likely to do, but these guesses will not be based on the law but on other considerations. Hence, the Rule of Law is considered as a means to protect those subject to the law from arbitrary rule and unpredictability by enhancing legal certainty. Against this background, this chapter analyses whether the provisions introduced in CETA’s Investment Chapter further legal certainty in the context of investment arbitration. In particular, this chapters goes through the drafting of the investment standards in CETA, the binding interpretative rules, the joint interpretative declarations, the provisions aiming to address the phenomenon of conflicting awards and multiple proceedings, including the appellate mechanism attached to the ISDS mechanism in CETA. The chapter finally argues that CETA’s Investment Chapter largely provides legal certainty, but stresses possible shortcomings and open questions.