The Compatibility of Investment Arbitration in eu Trade Agreements with the eu Judicial System

In: Journal for European Environmental & Planning Law

This article explores the legality of investment arbitration in eu trade agreements under eu law. Investor-state dispute settlement (isds), including the Investment Court System, allows foreign investors to challenge eu acts and decisions before investment tribunals and these tribunals may be faced with questions of eu law. Since this system of dispute resolution operates entirely outside the eu judicial framework and rivals with it, the powers of the courts of the Member States and that of the European Court of Justice may be adversely affected. This in turn could affect the uniform interpretation and effectiveness of eu law and the autonomy of the eu legal order.

  • 26

    Opinion 1/09, supra note 15, para. 66.

  • 28

    Opinion 1/09, supra note 15, paras. 83 and 84.

  • 29

    Opinion 1/09, supra note 15, para. 77.

  • 31

    Opinion 1/09, supra note 15, para. 74.

  • 42

    Opinion 1/09, supra note 15, para. 88.

  • 43

    Opinion 2/13, supra note 16, para. 184.

  • 47

    Opinion 2/13, supra note 16, paras. 246–247.

  • 50

    Opinion 2/13, supra note 16), paras. 182, 184, 185. The binding nature of rulings of investment tribunals on the parties to the dispute is confirmed, for instance, by articles x.39 of the draft text of ceta and 9.30 (1) of the draft text of the eu-Singapore fta. It is also envisaged in the Commission draft text for the ttip in article 30 of section 3 as well as in article 31 of Chapter 8 ii section 3 of the eu-Vietnam fta. By virtue of article 216 (2) tfeu these arbitration awards are also binding on the eu institutions, including the Court of Justice of the European Union.

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