Through the study of the Court’s case law on dispute settlement, this article examines whether investor-State dispute resolution is compatible with eu law at all and, if so, under which conditions. It analyses the relevant Opinions delivered by the Court of Justice regarding external dispute settlement mechanisms and the autonomy of the eu legal order. The author then assesses the compatibility of investor-State dispute resolution within the system of legal protection guaranteed by the cjeu. It finally presents ways forward aiming at preserving the autonomy of the eu legal order. The author concludes that no realistic or viable propositions can be detected on the horizon. Therefore, as long as no veritable mechanism is found to render investor-State dispute resolution in line with the cjeu’s jurisprudence, the insertion of an isds mechanism in those international agreements seems to be an ill-considered decision on the part of the European Commission.
A. Reinischop. cit. p. 152and see R. Quick “Why ttip should have an investment chapter including isds?” Journal of World Trade No. 49 2015 (to be published) available at http://www.investmentpolicycentral.com/sites/g/files/g798796/f/201502/150115%20%20JWT%20pro%20ISDS%20final%20final.pdf [consulted on 13 June 2015].
Report on public consultation pp. 14–15and ep’s Policy document p. 106 and see O.E. Garcia-Boliva “Permanent Investment Tribunals: The Momentum is Building Up” in J.E. Kalicki and A. Joubin-Bret (eds.) Reshaping the Investor-State Dispute Settlement System. Journeys for the 21st Century Leiden-Boston Brill/Martinus Nijhoff 2015 pp. 394–402.
N. Lavranos“Designing an International Investor-to-State Arbitration System After Opinion 1/09”Special issue: Common Commercial Policy after Lisbonop. cit. 2014 pp. 210–211; A. Dimopoulos “The Validity and Applicability of International Investment Agreements Between eu Member States and International Law” Common Market Law Review No. 48 2011 p. 85 and O. Dörr “The European Court of Justice Getting in the Way: The Abortive mox Plant Arbitration” in T. Giegerich (ed.) A Wiser Century? Judicial Dispute Settlement Disarmament and the Laws of War 100 Years after the Second Hague Peace Conference Duncker & Humblot Berlin 2009 p. 505.
T. Eilmansbergerop. cit. p. 404; A. Dimopoulos op. cit. p. 404; A. Reinisch op. cit. p. 177; S.W. Schill op. cit. p. 42; M. Burgstaller op. cit. p. 592 and K. von Papp “Clash of ‘Autonomous Legal Orders’: Can eu Member State Courts Bridge the Jurisdictional Divide Between Investment Tribunals and the ecj? A Plea for Direct Referral from Investment Tribunal to the ecj” Common Market Law Review 2013 p. 1054.