Abstract
In Opinion 1/17 the Court of Justice of the European Union (CJEU) ruled that the new Investment Court System (ICS) in the Canada–EU Comprehensive Economic and Trade Agreement (CETA) is compatible with the EU constitutional framework. This article examines the CJEU’s analysis of the ICS in its Opinion through the prism of EU values and objectives. Given the judicial nature of the ICS, the article unfolds around the concept of the rule of law. The scope and the content of this core EU value are considered under both EU law and the European Convention on Human Rights (ECHR). In particular, the ICS is analysed in light of the two core rule-of-law requirements: equal treatment and the independence of courts, enshrined in Articles 20 and 47 of the Charter of Fundamental Rights (CFR). Importantly, in Opinion 1/17 the CJEU for the first time applied Article 47 CFR to a court outside the EU judicial system. While the CJEU ruled that the ICS complies with the CFR rule-of-law criteria, this article argues that it nevertheless falls short of the rule-of-law standards required for judicial bodies under EU law. The article demonstrates that the CJEU prioritises free and fair trade as the CETA’s core objective, rather than the rule of law, and endorses the ICS as the conditio sine qua non of guaranteeing such trade. The Court’s findings have wider consequences for the rule of law in international law as the EU continues to pursue the establishment of a Multilateral Investment Court (MIC).
Highlights
Following the Lisbon Treaty, the new EU international investment policy has been subject to much political controversy, in particular with respect to Investor-State Dispute Settlement (ISDS)
Following the request made by the Kingdom of Belgium as part of the Comprehensive Economic and Trade Agreement (CETA) compromise in that Member State,3 in Opinion 1/17 the Court of Justice of the European Union (CJEU) confirmed the compatibility of the Investment Court System (ICS) with EU law
The Court of Justice of the European Union’s (CJEU) positive Opinion extends to all EU agreements including the ICS and the future Multilateral Investment Court (MIC), allowing the EU to continue pursuing its international investment policy objectives
Summary
Following the Lisbon Treaty, the new EU international investment policy has been subject to much political controversy, in particular with respect to Investor-State Dispute Settlement (ISDS). Given the judicial nature of the ICS, of particular importance is the rule of law, as one of the core values in Article 2 Treaty on European Union (TEU), enshrined in Articles 20 and 47 of the Charter of Fundamental Rights (CFR).. Judicial protection is defined as a general principle stemming from the constitutional traditions common to the Member States and as a right for the purpose of Article 47 CFR. Some principles are expressly stated in fundamental legal texts (Member States’ constitutions and the founding Treaties), while others can be implied in more substantive rules They may be the product of a purely judicial construction CJEU, constitutional courts, and administrative high courts), or enshrined in Treaty law and developed by courts, like the general principle of judicial protection proclaimed in the European Convention on Human Rights (ECHR) and the CFR. In essence, CFR rights impose duties on State authorities when implementing EU law
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