Investor-State Dispute Settlement ( isds ) in Future eu Investment-Related Agreements: Is the Autonomy of the eu Legal Order an Obstacle?

Investor-State Dispute Settlement ( isds ) in Future eu Investment-Related Agreements: Is the... 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. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png The Law & Practice of International Courts and Tribunals Brill

Investor-State Dispute Settlement ( isds ) in Future eu Investment-Related Agreements: Is the Autonomy of the eu Legal Order an Obstacle?

Investor-State Dispute Settlement ( isds ) in Future eu Investment-Related Agreements: Is the Autonomy of the eu Legal Order an Obstacle?


* This paper is an extended version of a final thesis submitted on 15 June 2015 in the context of an advanced LL.M. at Leiden University. The author wishes to thank, in particular, Dr. Eric De Brabandere for his support and his insightful comments on an early draft of this article; and Maida Kopic, Kate Pitcher and Eve Wasmuth for proofreading. Email: uweragisele@hotmail.be . 1 Introduction Prior to the commencement of the Treaty of Lisbon, 1 the European Union (hereinafter ‘ eu ’ or ‘Union’) had parallel competence with its Member States with respect to investment. Thus, Member States could freely conclude bilateral investment treaties (‘ bit s’) with third States with no eu involvement whatsoever. However, the Treaty of Lisbon broadened the eu ’s Common Commercial Policy (‘ ccp ’) via the insertion of ‘foreign direct investment’ into the existing ccp framework. The current ccp provides the eu with an external treaty-making power in the field of foreign direct investment. Following this, the European institutions began to struggle with managing the transition from Member States’ bit s to eu international investment agreements (‘ iia s’). The Commission presented a Regulation, 2 which has been accepted by the Parliament and the Council, providing for a transitional regime for managing the changes to existing bit s between Member States and third States. 3 At the time of writing, the Commission was negotiating iia s with China and Myanmar on behalf of the eu . It has also started discussions on investment chapters as part of Free Trade Agreements ( fta s) with several States, including Canada, India, the United States, Japan and Jordan. 4 Debate at the eu institutional level mostly concentrates on substantive foreign direct investment issues. Yet, one of the most controversial issues regarding iia s’ and fta s’ investment chapters concerns the availability and design...
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Publisher
Brill
Copyright
© Koninklijke Brill NV, Leiden, The Netherlands
ISSN
1569-1853
eISSN
1571-8034
DOI
10.1163/15718034-12341312
Publisher site
See Article on Publisher Site

Abstract

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.

Journal

The Law & Practice of International Courts and TribunalsBrill

Published: Mar 17, 2016

Keywords: Investment-State Dispute Resolution; European Court of Justice; Court of Justice of the European Union; Investor-State Arbitration; International Investment Agreements; Exclusive Jurisdiction; Autonomy of the eu legal order

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