Abstract
This article analyses the aspect of the Court’s reasoning in Opinion 1/17 that focuses on the regulatory autonomy of the Parties to the Comprehensive Economic and Trade Agreement (CETA) to decide on levels of protection of public interests. The European Court of Justice’s (ECJ) introduction of regulatory autonomy under EU law coincides with the wider debate around ‘regulatory chill’ under international investment law. This article finds the ECJ’s concept of regulatory autonomy to be narrower than that of the regulatory chill hypothesis put forward by critics of investor-state dispute settlement (ISDS). It further analyses the ECJ’s reasoning that the CETA’s investment tribunals do not have jurisdiction to call into question the levels of protection sought by the EU. In so doing, it will critically evaluate the certainty of the ECJ’s promise that there will be no negative effect on public interest decision-making through CETA’s investment chapter. Finally, it will explore the legal consequences of Opinion 1/17 for future awards and investment agreements.
Highlights
The lively public debate on investment arbitration in recent years is in part the result of public fears of ‘regulatory chill’ that may result from investor claims against government public interest action under investment agreements.1 It is not the only ground for opposing investor-state dispute settlement (ISDS)2 but concerns over regulatory chill have made the debate more prominent
As this article will argue below, climate change policies may be susceptible to regulatory chill because, on the one hand, typical measures to promote renewables such as feed-in tariffs are vulnerable to challenge under trade and investment agreements and, on the other, investment arbitration presents an opportunity for the fossil fuel industry to stall government action harming its investments
The fourth section will explore the possible legal consequences of Comprehensive Economic and Trade Agreement (CETA) tribunals exceeding their jurisdiction by calling into question the levels of protection of public interests set by the EU as understood by the European Court of Justice (ECJ)
Summary
The lively public debate on investment arbitration in recent years is in part the result of public fears of ‘regulatory chill’ that may result from investor claims against government public interest action under investment agreements. It is not the only ground for opposing investor-state dispute settlement (ISDS) but concerns over regulatory chill have made the debate more prominent. The lively public debate on investment arbitration in recent years is in part the result of public fears of ‘regulatory chill’ that may result from investor claims against government public interest action under investment agreements.1 It is not the only ground for opposing investor-state dispute settlement (ISDS) but concerns over regulatory chill have made the debate more prominent. As this article will argue below, climate change policies may be susceptible to regulatory chill because, on the one hand, typical measures to promote renewables such as feed-in tariffs are vulnerable to challenge under trade and investment agreements and, on the other, investment arbitration presents an opportunity for the fossil fuel industry to stall government action harming its investments. The fourth section will explore the possible legal consequences of CETA tribunals exceeding their jurisdiction by calling into question the levels of protection of public interests set by the EU as understood by the ECJ.
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