Prior Judicial Involvement in Investor-State Dispute Settlement: Lessons from the Court’s Rhetoric in Opinion 2/15

Abstract

The Court of Justice of the European Union has long protected the integrity of the Union legal order from external impact of judicial and normcreating processes. Initially concerned with the harmonious interpretation and application of Union law, the principle has gradually developed into a shield that protects the judicial prerogatives of the Court against international courts and tribunals. Now, the Court stands before a new challenge; Opinion 1/17 on the compatibility of the Comprehensive Economic and Trade Agreement between the EU and Canada was only very recently registered on the Court ’ s docket. The assessment of core features of the post-Lisbon trade and investment policy, not least the investment court system, will be eagerly awaited. But the recent judgment of the Court in Opinion 2/15 over the allocation of competences for the conclusion of the EU – Singapore free trade agreement may already entail some hints as to the Court ’ s stand on investor-State dispute settlement provisions. In fact, the Court ’ s rhetoric resembles statements made previously in the context of the European Patents Court in Opinion 1/09. The Court is in particular concerned with the profound effect of investor-State tribunals on domestic courts in the Member States, who are deprived of hearing disputes that would otherwise come before them. In terms of competence allocation, this removes the investor-State dispute settlement provisions from the purview of exclusive Union competences. In terms of compatibility, it may put these mechanisms, and incidentally the investment court system, on a collision course with the principle of autonomy of the Union legal order.