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EU as a Driver in the Judicialization Process of International Investment Disputes: ISDS Reform and EU Judicial System

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Transnational Actors in International Investment Law

Part of the book series: European Yearbook of International Economic Law ((Spec. Issue))

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Abstract

With judicialization of ISDS as a hallmark of the EU investment policy and its proposal for the multilateralization of the investment court system, ISDS reform is increasingly associated with challenges arising from the multiplication of international tribunals and judicial dialogue. This includes challenges concerning the relation between the investment court system and the EU judicial system. In particular, the main feature regarding the compatibility of the CETA ICS with the autonomy of the EU legal order is the ISDS disconnection from EU Law and its judicial system. As a result, in Opinion 1/17 the CJEU has considered that the safeguards embodied in CETA rules and procedures are sufficient guarantee to the autonomy of the EU legal order, but the need of judicial dialogue with CETA Tribunals has been dismissed. Nevertheless, taking into account the possible outcome of the ongoing process of ISDS reform at the UNCITRAL and the current trend towards judicialization of international adjudication, new legal approaches may become necessary for the promotion of judicial dialogue and cooperation between the CJEU and other international jurisdictional structures.

The authors are grateful for the valuable input and comments from Catharine Titi.

The research for this chapter was conducted as part of the project “European Union in the World: International Law and Politics”, Erasmus + Programme-Jean Monnet Activities, Ref. 587791-EPP-1-2017-1-ES-EPPJMO-MODULE.

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Notes

  1. 1.

    UNCTAD, World Investment Report 2015. Reforming international investment governance (2015), http://unctad.org/en/PublicationsLibrary/wir2015_en.pdf (last accessed 1 June 2020).

  2. 2.

    Hoffmeister and Alexandru (2014), p. 380.

  3. 3.

    Lenk (2015) p. 14.

  4. 4.

    Roberts (2018b), p. 194. This author makes a classification to disaggregate the level of ISDS reform, giving examples with different states. The states are classified in incremental, systemic and paradigmatic reformers considering the scale of proposed changes, not their merits. In this particular classification, the EU has been considered an incremental reformer actor in its form and substance, and a systemic reformer in procedure.

    In its role as a driver of the judicialization process of ISDS, the EU has become one of the key supporters of a horizontal recalibration of ISDS, from private to public authority without altering (or even reasserting) its international character. At the multilateral stage, however, reform options are polarised between those actors that pursue a very modest horizontal recalibration and those who aspire to a significant dismantling of international authority. Herranz-Surrallés (2020), p. 344. For a more comprehensive approach to the process of judicialization of private transnational power and authority, Cutler (2018).

  5. 5.

    OJ 2012 C 296E, European Parliament Resolution 2010/2203 of 6 April 2011. OJ 2017 C 265/05, European Parliament Resolution 2014/2228 of 8 July 2015. OJ 2018 C 101/30, European Parliament Resolution 2015/2105 of 5 July 2016.

  6. 6.

    Titi (2015), p. 640.

  7. 7.

    OJ 2017 L 11, p. 23. Comprehensive Economic and Trade Agreement (CETA) between Canada, of the one part, and the European Union and its Member States, of the other part. OJ 2017 L 11, p. 1. Council Decision (EU) 2017/37 of 28 October 2016 on the signing on behalf of the European Union of the Comprehensive Economic and Trade Agreement (CETA) between Canada, of the one part, and the European Union and its Member States, of the other part. OJ 2017 L 11, p. 1080. Council Decision (EU) 2017/38 of 28 October 2016 on the signing the provisional application of the Comprehensive Economic and Trade Agreement (CETA) between Canada, of the one part, and the European Union and its Member States, of the other part.

  8. 8.

    Current state of EU – Mexico negotiations, https://trade.ec.europa.eu/doclib/press/index.cfm?id=1833 (last accessed 1 June 2020).

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    Curent state of EU – Singapore negotiations, https://trade.ec.europa.eu/doclib/press/index.cfm?id=961 (last accessed 1 June 2020).

  10. 10.

    Current state of EU – Vietnam negotiations, https://trade.ec.europa.eu/doclib/press/index.cfm?id=1437 (last accessed 12 June 2020).

  11. 11.

    There are ongoing negotiations with Chile, Australia and New Zealand, among others. No investment protection chapter was included in the EU-Japan Economic Partnership Agreement. Overview of TFA and Other Trade Negotiations, update February 2020, https://trade.ec.europa.eu/doclib/docs/2006/december/tradoc_118238.pdf (last accessed 1 June 2020).

  12. 12.

    The “bridging clause” from a bilateral ICS to a MIC it is considered in article 8.29 of CETA, article 3.12 of the EU – Singapore IPA, article 3.41 of the EU – Vietnam IPA and article 12 of the proposed TTIP text. On challenges facing by the EU in relation to the gradual transition from the bilateral (ICS) to the multilateral (MIC) phase in terms of efficiency, costs, predictability and coherence, see Titi C, The European Union’s proposal for an international investment court: Significance, innovations and challenges ahead. Transnational Dispute Management TDM 1, 2017, https://www.transnational-dispute-management.com (last accessed 1 June 2020).

  13. 13.

    Article 6 (i) of the Joint Interpretative Instrument on the CETA between Canada and the European Union and its Member States, OJ 2017 L11.

  14. 14.

    Some of the meetings used to introduce the MIC idea were: United Nations Commission on Trade and Development (“UNCTAD”)’s World Investment Forum held in Nairobi, Kenia (2016); Organization for Economic Co-operation and Development (“OECD”) Investment Treaty Dialogue, Paris (2016); Intergovernmental expert meeting, Geneva (2016) and Informal meeting at World Economic Forum, Davos (2017).

  15. 15.

    European Commission, Concept Paper, 5 May 2015, Investment in TTIP and beyond – the path for reform. Enhancing the right to regulate and moving from current ad hoc arbitration towards an Investment Court, https://trade.ec.europa.eu/doclib/docs/2015/may/tradoc_153408.PDF (last accessed 12 June 2020), p. 12.

  16. 16.

    Following a public consultation and impact assessment, the Commission made a recommendation to start negotiations on a MIC and the Council adopted negotiating directives. European Commission, Commission Staff Working Document Impact Assessment, SWD(2017) 302 Final. https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52017SC0302&from=EN (last accessed 15 June 2020). European Commission, Recommendation for a Council Decision authorising the opening of negotiations for a Convention establishing a multilateral court for the settlement of investment disputes, COM(2017) 493 Final 7. https://ec.europa.eu/transparency/regdoc/rep/1/2017/EN/COM-2017-493-F1-EN-MAIN-PART-1.PDF (last accessed 15 June 2020). Negotiating directives for a Convention establishing a multilateral court for the settlement of investment disputes. Council Document of 20 March 2018, No 12981/17. http://data.consilium.europa.eu/doc/document/ST-12981-2017-ADD-1-DCL-1/en/pdf (last accessed 15 June 2020).

  17. 17.

    UNCITRAL, Possible reform of Investor-State dispute settlement (ISDS): Submission from the European Union and its Members States, 24 January 2019, A/CN.9/WG.III/WP.159/Add.1, https://undocs.org/en/A/CN.9/WG.III/WP.159/Add.1 (last accessed 1 June 2020).

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    UNCITRAL, Possible reform of Investor-State dispute settlement (ISDS): Submission from the European Union and its Members States, 24 January 2019, A/CN.9/WG.III/WP.159/Add.1, https://undocs.org/en/A/CN.9/WG.III/WP.159/Add.1 (last accessed 1 June 2020).

  19. 19.

    In this case, the CJEU stated that ISDS clauses are susceptible to remove investment disputes from the jurisdiction of the courts of the EU Member States in favour of an international arbitral body and cannot therefore be established without the Member State’s consent. CJEU, Opinion 2/15, 16 May 2017, ECLI:EU:C:2017:376, paras 291–292.

  20. 20.

    CJEU, case C-284/16, Slovak Republic v. Achmea BV, ECLI:EU:C:2018:158.

  21. 21.

    CJEU, Opinion 1/17, 30 April 2019, ECLI:EU:C:2019:341. The CJEU was also asked to assess the compatibility of the ISDS mechanism in CETA with the general principle of equal treatment, with the requirement of effectiveness and with the right of access to an independent tribunal. These specific issues will not be analysed in this chapter.

  22. 22.

    CJEU, case C-284/16, Slovak Republic v. Achmea BV, ECLI:EU:C:2018:158.

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    Schepel H, A Parallel Universe: Advocate General Bot in Opinion 1/17, European Law Blog, https://europeanlawblog.eu/2019/02/07/ (last accessed on 7 February 2019).

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    Roberts (2018a).

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    Roberts A and Tylor J, UNCITRAL and ISDS Reforms: Agenda-Widening and Paradigm-Shifting, https://www.ejiltalk.org/uncitral-and-isds-reforms-agenda-widening-and-paradigm-shifting/ (last accessed 30 April 2020).

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    UNCITRAL, Possible reform of Investor-State dispute settlement (ISDS): Submission from the Government of Chile, Israel and Japan, A/CN.9/WG.III/WP163, 15 March 2019, https://undocs.org/en/A/CN.9/WG.III/WP.163 (last accessed 1 June 2020), p. 4.

  31. 31.

    UNCTAD, World Investment Report 2018 (UNCTAD/WIR/2018), https://unctad.org/en/PublicationsLibrary/wir2018_en.pdf (last accessed 15 June 2020).

  32. 32.

    A Treaty may include a requirement to exhaust local judicial remedies (or to litigate in local courts fro a prolonged period) before turning to arbitration. UNCTAD, World Investment Report 2019, UNCTAD/WIR/2019, https://unctad.org/en/pages/PublicationWebflyer.aspx?publicationid=2460 (last accessed 15 June 2020). Also see UNCITRAL, Possible reform of investor-State dispute settlement (ISDS): Submission from the Government of South Africa, 17 July 2019, A/CN.9/WG.III/WP176, https://undocs.org/en/A/CN.9/WG.III/WP.176 (last accessed 15 June 2020), p. 8.

  33. 33.

    UNCITRAL, Report of Working Group III (Investor-State Dispute Settlement Reform), 14 May 2018, A/CN.9/935, https://undocs.org/en/A/CN.9/935 (last accessed 1 June 2020). Roberts (2018b), p. 195. Returning to domestic courts has been a strong perspective in the India’s 2015 BIT Model. India has been considered as a paradigmatic reformer in this view.

  34. 34.

    Many states have been taking this option through including “carve outs” in their treaties. Some examples could be found in Australia adding a “tobacco carve out” in recent treaties, such as CPTPP/TPP.

  35. 35.

    Schill SW and Vidigal G (2019), Cutting the gordian knot: investment dispute settlemet à la carte, https://uncitral.un.org/sites/uncitral.un.org/files/rta_exchange_-_investment_dispute_settlement_-_schill_and_vidigal.pdf (last accessed 1 June 2020), p. 4.

  36. 36.

    Titi (2014), p. 10.

  37. 37.

    As an example, chapter twenty eight of CETA gives the EU and Canada the right to exclude certain areas, either from specific chapters of CETA, or from the whole agreement. They can do so for a variety of reasons, such as to ensure public safety, prevent tax evasion, or to preserve and promote cultural identity.

  38. 38.

    For example, the states parties of MERCOSUR (Argentina, Brazil, Paraguay and Uruguay) signed in April 2017 the Protocol on Investment Cooperation and Facilitation (“MERCOSUR Protocol”), https://www.mercosur.int/documento/protocolo-de-cooperacion-y-facilitacion-de-inversiones-intra-mercosur/ (last accessed 1 June 2020).

  39. 39.

    UNCITRAL, Possible reform of investor-State dispute settlement (ISDS): Submission from the Government of Brazil, 11 July 2019, A/CN.9/WG.III/WP171, https://undocs.org/en/A/CN.9/WG.III/WP.171 (last accessed 1 June 2020), p. 4. Another recent example could be the Southern African Development Community (“SADC”).

  40. 40.

    UNCITRAL, Possible reform of investor-State dispute settlement (ISDS): Submission from the Government of Korea, 31 July 2019, A/CN.9/WG.III/WP179, https://uncitral.un.org/sites/uncitral.un.org/files/wp179_new.pdf (last accessed 1 June 2020), p. 5. UN General Assembly, Possible reform of investor-State dispute settlement (ISDS): Submission from the Government of Brazil, 11 July 2019, A/CN.9/WG.III/WP171, https://undocs.org/en/A/CN.9/WG.III/WP.171 (last accessed 1 June 2020), p. 4. UNCITRAL, Possible reform of investor-State dispute settlement (ISDS): Submission from the Government of South Africa, 17 July 2019, A/CN.9/WG.III/WP176, https://undocs.org/en/A/CN.9/WG.III/WP.176 (last accessed 1 June 2020), p. 8.

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    Negotiating directives for a Convention establishing a multilateral court for the settlement of investment disputes. Council Document of 20 March 2018, No 12981/17. http://data.consilium.europa.eu/doc/document/ST-12981-2017-ADD-1-DCL-1/en/pdf (last accessed 15 June 2020).

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    UNCITRAL, Possible reform of Investor-State dispute settlement (ISDS): Submission from the European Union and its Members States, 24 January 2019, A/CN.9/WG.III/WP.159/Add.1, https://undocs.org/en/A/CN.9/WG.III/WP.159/Add.1 (last accessed 1 June 2020).

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    UNCITRAL, Possible reform of Investor-State dispute settlement (ISDS): Submission from the European Union and its Members States, 24 January 2019, A/CN.9/WG.III/WP.159/Add.1, https://undocs.org/en/A/CN.9/WG.III/WP.159/Add.1 (last accessed 1 June 2020), p. 6.

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    UNCITRAL, Report of Working Group III (Investor-State Dispute Settlement Reform), 6 November 2018, A/CN.9/964, https://undocs.org/A/CN.9/964 (last accessed 1 June 2020), para. 66 ss.

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  48. 48.

    UNCITRAL, Possible reform of Investor-State dispute settlement (ISDS): Submission from the European Union and its Members States, 24 January 2019, A/CN.9/WG.III/WP.159/Add.1, https://undocs.org/en/A/CN.9/WG.III/WP.159 (last accessed 1 June 2020), p. 8. “Once the contracting parties to an agreement that are also parties to the instrument establishing the standing mechanism have made a notification concerning a particular agreement, then the standing mechanism would decide disputes arising under that agreement. For agreements concluded after the establishment of the standing mechanism, a reference could be made in the agreement conferring jurisdiction on the standing mechanism, or it could be added later.”

  49. 49.

    UNCITRAL, Possible reform of Investor-State dispute settlement (ISDS): Submission from the European Union and its Members States, 24 January 2019, A/CN.9/WG.III/WP.159/Add.1, https://undocs.org/en/A/CN.9/WG.III/WP.159 (last accessed 1 June 2020), p. 7.

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  53. 53.

    UNCITRAL, Note by the Secretariat: Possible reform of investor-State dispute settlement (ISDS), 30 July 2019, A/CN.9/WG.III/WP.166, https://undocs.org/en/A/CN.9/WG.III/WP.166 (last accessed 1 June 2020), p. 6.

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  55. 55.

    UNCITRAL, Possible reform of investor-State dispute settlement (ISDS): Submission from the Government of China, 19 July 2019, A/CN.9/WG.III/WP.177, https://undocs.org/en/A/CN.9/WG.III/WP.177 (last accessed 1 June 2020), p. 4.

  56. 56.

    Ning and Qi (2018) pp. 156, 159; Liu (2019), p. 267.

  57. 57.

    Sornarajah (2018), p. 224; Cai (2018), p. 188.

  58. 58.

    Ning and Qi (2018), p. 161. There has been three cases against China and eight cases involving Chinese investors. “Concerns of Chinese scholars are not related to the inconsistency of awards based on similar treaty provisions, but rather related to the correctness of interpretations given by arbitral tribunals.”

  59. 59.

    China has concluded BITs with 26 EU member states. China and the EU launched their negotiation rounds for BIT in 2013, and has concluded their 27th round of negotiation in March 2020. See, European Commission, Report of the 27th round of negotiations on the EU-China Comprehensive Agreement on Investment, 9 March 2020, TRADE.B2/Ares(2020)1434741, https://trade.ec.europa.eu/doclib/docs/2020/march/tradoc_158663.pdf (last accessed 1 June 2020). The aim is to finalize negotiations for an ambitious investment agreement on 2020.

  60. 60.

    Ning and Qi (2018), pp. 165–166.

  61. 61.

    EU and China are actually negotiating a Comprehensive Agreement on Investment (CAI) from 2014. They agree that an agreement would go beyond a traditional investment protection agreement and it would contain, among others, a dispute resolution. Current state of negotiations: https://trade.ec.europa.eu/doclib/press/index.cfm?id=2115 (last accessed 1 June 2020).

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    Schill SW and Vidigal G (2019), Cutting the gordian knot: investment dispute settlemet à la carte, https://uncitral.un.org/sites/uncitral.un.org/files/rta_exchange_-_investment_dispute_settlement_-_schill_and_vidigal.pdf (last accessed 1 June 2020), p. 4.

  63. 63.

    The free choice of forum system embodied in Article 287 of United Nations Convention on the Law Of the Sea also includes special rules regarding the participation of EU. See Ojinaga (2016), p. 980.

  64. 64.

    Schill and Vidigal (2020), p. 315.

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  66. 66.

    CJEU, Opinion 1/91, 14 December 1991, ECLI:EU:C:1991:490, para. 40.

  67. 67.

    CJEU, Opinion 1/17, 30 April 2019, ECLI:EU:C:2019:341, para. 107; Opinion 2/13, 18 December 2014, ECLI:EU:C:2014:2454, para. 183; Opinion 1/00,18 April 2002, ECLI:EU:C:2002:231, paras. 20 and 21.

  68. 68.

    Opinion 1/17, 30 April 2019, ECLI:EU:C:2019:341, para. 110. Opinion 2/13,18 December 2014, ECLI:EU:C:2014:2454, para. 158.

  69. 69.

    CJEU, Opinion 2/13, 18 December 2014, ECLI:EU:C:2014:2454, para. 170. See Rosas (2007).

  70. 70.

    Eckes (2019), pp. 185–223; Odermatt (2018), p. 304.

  71. 71.

    CJEU, case C-459/03, Commission v Ireland, ECLI:EU:C:2006:345, para. 154.

  72. 72.

    CJEU, Opinion 1/17, 30 April 2019, ECLI:EU:C:2019:341, para. 111; Opinion 2/13, 18 December 2014, ECLI:EU:C:2014:2454, paras 174–176 and 246. Vajda C (2019), Achmea and the autonomy of the EU legal order, https://www.lawttip.eu/uploads/files/UNIBO%20Vajda_WP.pdf (last accessed 1 June 2020), pp. 10–11.

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    Vajda C (2019), Achmea and the autonomy of the EU legal order, https://www.lawttip.eu/uploads/files/UNIBO%20Vajda_WP.pdf (last accessed 1 June 2020), p. 18.

  74. 74.

    Opinion 1/17, 30 April 2019, ECLI:EU:C:2019:341, paras 113–114.

  75. 75.

    Opinion 1/17, 30 April 2019, ECLI:EU:C:2019:341, para. 136.

  76. 76.

    On the view taken by the AG Bot, opinion delivered on 29 January 2019, ECLI:EU:C:2019:72, paras 171–172.

  77. 77.

    CJEU, Opinion of AG Bot, delivered on 29 January 2019, ECLI:EU:C:2019:72, paras 173–178 and 72 to 90.

  78. 78.

    Odermatt (2018), p. 2.

  79. 79.

    Both the growing need of procedural mechanisms to mitigate the risks of overlapping jurisdiction and parallel proceedings and the role that the international economic law is playing as a laboratory for the development of these mechanisms and procedural cross-fertilization have been emphasised by authors. Boisson de Chazournes (2017). Ruiz Fabri and Paine (2019), The procedural cross-fertilization pull, https://poseidon01.ssrn.com/delivery.php?ID=989065009005112086027088120116119122028021001019074056118072080086029111121002109123020121038120049012114064124089028020108019025042021040033079103126091068065085089059002063007026026088101110107078068097083118119107125088006098084005117123006095026026&EXT=pdf (last accessed 29 June 2020); Burgorgue-Larsen L (2003), Le fait régional dans la juridictionnalisation du droit international, https://hal.archives-ouvertes.fr/hal-01743274/document (last accessed 1 June 2020), p. 38.

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    On problems caused by parallel proceedings and its connection with procedural justice, Gaillard E, Parallell proceedings: Investment arbitration, Max Planck Encyclopedia of International Procedural Law, https://opil.ouplaw.com/home/mpil (last accessed 30 May 2019).

  81. 81.

    Article 8.22 CETA. See Bungenberg and Reinisch (2018), pp. 77–78.

  82. 82.

    Article 8.22.1 (f) and (g) in relation to Article 8.22.5 of the CETA. A claim may be submitted by the investor to the CETA Tribunal on condition that the investor previously withdraws or discontinues any existing proceeding or waives its right to initiate any claim or proceeding before a tribunal or court under domestic or international law with respect to a measure alleged to constitute a breach referred to in its claim. This formulation is generally consistent with the approach taken under the ICSID Convention regime. In early drafts of the CETA, the preclusion of parallel proceedings applied only to claims for damages or compensation but not for other remedies, such an annulment of a host State’s measure (Hindelang 2015, pp. 56–57).

  83. 83.

    Opinion of AG Bot delivered on 29 January 2019, ECLI:EU:C:2019:72, para. 168.

  84. 84.

    Article 8.22 of the CETA is only mentioned once by CJEU, Opinion 1/17, 30 April 2019, ECLI:EU:C:2019:341, para. 135. By the contrary, the AG Bot considers that alternative jurisdiction conferred to the CETA Tribunals does not restrict the substantive rights enjoyed by foreign investors under EU law; nor does it have the effect of limiting the jurisdiction of the CJEU or of the courts and tribunals of the Member states to hear and determine actions brought with a view to ensuring the observance of such rights; and no deprived those courts and tribunals of their status as ‘general law’ courts within the EU legal order, including their role in any making of references for a preliminary ruling to the CJEU (Opinion of AG Bot, delivered on 29 January 2019, ECLI:EU:C:2019:72, paras 165–172).

  85. 85.

    Schill SW (2016), The European Commission’s proposal of an “Investment Court System” for TTIP: stepping stone or stumbling block for multilateralizing international investment law? https://www.asil.org/insights/volume/20/issue/9/european-commissions-proposal-investment-court-system-ttip-stepping (last accessed 1 June 2020).

  86. 86.

    Article 8.24 CETA. See Lévesque and Newcombe (2013), pp. 108–110.

  87. 87.

    Article 8.21 of the CETA.

  88. 88.

    Opinion 1/17 of 30 April 2019, ECLI:EU:C:2019:341, paras 77 and 132; Opinion 2/13 (Accession of the Union to the ECHR) of 18 December 2014, EU:C:2014:2454, paras 224–231. Opinion of AG Bot, delivered on 29 January 2019, ECLI:EU:C:2019:72, para. 161.

  89. 89.

    Treves (2014).

  90. 90.

    Heliskoski (2001), pp. 157–208.

  91. 91.

    The declarations of competence externalises or exports the problem to the international level and much room for interpretation would be left to the international court or tribunal charged with applying them. See Contartese and Pantaleo (2018), p. 417; Delgado Casteleiro (2012), pp. 502–503; Govaere (2010), p. 204.

  92. 92.

    Article 3.5 of the EUSFTA.

  93. 93.

    Article 3.32 of the EUVFTA.

  94. 94.

    Article 5 of the EUMTA.

  95. 95.

    Bungenberg and Reinisch (2018), p. 90.

  96. 96.

    Article 8.21.1 and 8.21.2 of the CETA.

  97. 97.

    Article 8.21.3 of the CETA.

  98. 98.

    Article 8.21.4 of the CETA.

  99. 99.

    Article 8.21.7 of the CETA.

  100. 100.

    Article 8.21.6 of the CETA; Article 3.32.5 of the EUVFTA.

  101. 101.

    In that occasion, the CJEU stated that the ECHR, in ascertaining the plausibility of a request of the EU or the Member States to intervene as co-respondents “would be required to assess the rules of EU law governing the division of powers between the EU and its Member States as well as the criteria for the attribution of their acts or omissions, in order to adopt a final decision in that regard which would be binding both on the Member States and on the EU”. Then, it concludes that “[s] uch a review would be liable to interfere with the division of powers between the EU and its Member States’ (CJEU, Opinion 2/13, 18 December 2014, ECLI:EU:C:2014:2454, paras 224–225). Mayr (2017), p. 276.

  102. 102.

    OJ 2014 L 257: EU Regulation, No. 912/2014 of the European Parliament and of the Council establishing a framework for managing financial responsibility linked to investor-to-state dispute settlement tribunals established by international agreements to which the European Union is party.

  103. 103.

    Amerasinghe (2003), pp. 34–40. Regarding multilaterlization of ICS, see Bungenberg and Reinisch (2018), p. 102.

  104. 104.

    CJEU, case C-73/14, Council v. Commission, EU:C:2015:663, para. 58; CJEU, case C-131/03 P, Reynolds Tobacco and Others v. Commission, EU:C:2006:541, para. 94.

  105. 105.

    CJEU, case C-73/14, Council v. Commission, EU:C:2015:663, para. 59.

  106. 106.

    The Council of the European Union seeked the annulment of the decision of the European Commission of 29 November 2013 to submit the “Written statement by the European Commission on behalf of the European Union” to the International Tribunal for the Law of the Sea (“ITLOS”) in Case No 21. CJEU case C-73/14, Council v. Commission, EU:C:2015:663. See Ojinaga (2016).

  107. 107.

    CJEU, case C-73/14, Council v. Commission, EU:C:2015:663.

  108. 108.

    CJEU, case C-73/14, Council v. Commission, EU:C:2015:663, para. 86.

  109. 109.

    Opinion 1/94 (WTO Agreement), EU:C:1994:384, XIX.

  110. 110.

    CJEU, case C-266/03, Commission v. Luxembourg, EU:C:2005:341; CJEU, case C-433/03, Commission v. Germany, EU:C:2005:462.

  111. 111.

    Article 8.18.5 of the CETA.

  112. 112.

    Article 8.31.1 of the CETA.

  113. 113.

    Article 8.31.2 of the CETA. This is in line with the exclusive jurisdiction of the CJEU to invalidate secondary EU law. See CJEU, Joined cases C-143/88 and C-92/89, Zuckerfabrik Süderdithmarschen AG v Hauptzollamt Itzehoe and Zuckerfabrik Soest GmbH v Hauptzollamt Paderborn., ECLI:EU:C:1991:65, para. 17; CJEU, case C-6/99, Association Greenpeace France and Others v Ministère de l'Agriculture et de la Pêche and Others, ECLI:EU:C:2000:148, para 54; CJEU, case C-344/04, The Queen, a instancia de International Air Transport Association y European Low Fares Airline Association contra Department for Transport, ECLI:EU:C:2006:10, para. 27; CJEU, case C-366/10, Air Transport Association of America and Others v Secretary of State for Energy and Climate Change, ECLI:EU:C:2011:864, para. 47.

  114. 114.

    Article 8.28 (2) of the CETA. This view appears to reflect a general principle of international law expressed by Permanent Court of International Justice in the Certain German Interests in Polish Upper Silesia Judgment on Merits, 25 May 1926, PCIJ Series A, No 6, p. 20. The explicit consideration of manifest error in the appreciation of the facts, including the appreciation of relevant domestic law as one of the grounds for appeal in CETA, talks about the importance of issues involved in this approach to domestic and EU law and seems, in fact, to be the main reason for a divergence with the WTO system, were appeal is limited to questions of law. By contrast, Article 13 (1) Chap. 8, Sec. 3 of the EUVFTA and Article 3.10 (1) of the EUSFTA when considering appeals from the awards remain silent with regard to the grounds of the appellation.

  115. 115.

    Article 8.31.2 of the CETA.

  116. 116.

    Eckes (2019), p. 19.

  117. 117.

    Lavranos (2019), p. 14.

  118. 118.

    Article 8.30.6 of the CETA.

  119. 119.

    In its Opinion 1/91 the CJEU stated that: “[W]here, however, an international agreement provides for its own system of courts, including a court with jurisdiction to settle disputes between the Contracting Parties to the agreement, and, as a result, to interpret its provisions, the decisions of that court will be binding on the Community institutions, including the Court of Justice.” (CJEU, Opinion 1/91, 14 December 1991, ECLI:EU:C:1991:490, para. 39). Lenk H (2019), The EU investment court system. A viable reform initiative?, https://gupea.ub.gu.se/bitstream/2077/60266/1/gupea_2077_60266_1.pdf (last accessed 1 June 2020), pp. 189–202.

  120. 120.

    Hindelang (2015), p. 74; Pernice (2014), pp. 146–149.

  121. 121.

    CJEU, Opinion 1/17, 30 April 2019, ECLI:EU:C:2019:341, para. 131. Lavranos (2019), pp. 14–15.

  122. 122.

    Schill (2012), p. 591; Gáspar-Szilágyi (2016), p. 26.

  123. 123.

    Arbitration regarding the Iron Rhine (“Ijzeren Rijn”) Railway (The Kingdom of Belgium and The Kingdom of the Netherlands), Award of the Arbitral Tribunal (24 May 2005) XXVII RIAA 35.

  124. 124.

    Hepburn (2016), pp. 366–367.

  125. 125.

    Article 8.12(1)(b) of the CETA.

  126. 126.

    Article 8.10 (2)(a) of the CETA.

  127. 127.

    Gáspar-Szilágyi (2016), p. 34.

  128. 128.

    Article 8.28(2) (b) of the CETA.

  129. 129.

    Ankersmit (2019), p. 336.

  130. 130.

    Ankersmit (2019), p. 336. On problems regarding joint binding interpretations with retroactive effects, not expressly excluded by article 8.31.2 of the CETA, see Opinion 1/17 of 30 April 2019, ECLI:EU:C:2019:341, paras. 236–237. Lavranos (2019), pp. 14–15.

  131. 131.

    Opinion 1/17 of 30 April 2019, ECLI:EU:C:2019:341, para. 134. See para. 78.

  132. 132.

    “It is therefore impossible to examine whether the autonomy of EU law is sufficiently preserved by the CETA unless account is taken of that reciprocal aspect of the desired substantive and procedural protection” (Opinion of AG Bot, delivered on 29 January 2019, ECLI:EU:C:2019:72, para. 84 and paras. 179–182).

  133. 133.

    Schill (2015), p. 386.

  134. 134.

    Odermatt (2014), p. 718.

  135. 135.

    Association Agreements between the EU and its member States and Ukrain, Moldova and Georgia concluded in 2014. See Eckes (2019), p. 18; Geneva Jean Monnet Working Papers 27/2016, Contartese C (2016), The procedures of prior involvement and referral to the CJEU as a means for judicial dialogue between the CJEU and international jurisdictions, https://www.ceje.ch/files/3914/8094/2575/contartese-27-final.pdf (last accessed 1 June 2020), pp. 8–11.

  136. 136.

    This is in line with Draft Agreement on the European and Community Patents Court and Draft Statute, that was however declared incompatible with the EU Treaties by the CJEU because of the impact it would have on the role of EU Member States domestic courts and tribunals as ‘ordinary’ judges within the EU legal order. Opinion 1/09 of 8 March 2011, EU:C:2011:123, para. 80.

  137. 137.

    Fischer-Lescano A and Horst (J 2014), The limits of EU and constitutional law for the Comprehensive Economic and Trade Agreement between the EU and Canada (CETA), https://blog.campact.de/content/uploads/2014/12/Gutachten_CETA_engl_final_27112014.pdf (last accessed 1 June 2020), pp. 14–15; Lee (2018), p. 150.

  138. 138.

    Burgstaller (2014), p. 569; Gáspar-Szilágyi (2016), pp. 32–35. Lenk H (2019), The EU investment court system. A viable reform initiative?, https://gupea.ub.gu.se/bitstream/2077/60266/1/gupea_2077_60266_1.pdf (last accessed 1 June 2020), pp. 202–206. Schill (2015), pp. 386–387. A comparable preliminary ruling before the Multilateral Investment Court, through which rulings on the interpretation of international investment law could be requested by the first-instance courts, has been suggested. See Schill (2016).

  139. 139.

    CJEU, case C-459/03, Commission v. Ireland, ECLI:EU:C:2006:345, para 155–156. Award of the Arbitral Tribunal in the Arbitration regarding the Iron Rhide (“Izjeren Rijn”) Railway, para. 103.

  140. 140.

    CJEU, case C-284/16, Slovak Republic v. Achmea BV, ECLI:EU:C:2018:158, para. 46. Opinion of AG Wathelet, delivered on 19 September 2017, ECLI:EU:C:2017:699, para. 85.

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    Rosario Ojinaga Ruiz & Maria Lina Leiva

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Ruiz, R.O., Leiva, M.L. (2021). EU as a Driver in the Judicialization Process of International Investment Disputes: ISDS Reform and EU Judicial System. In: Gourgourinis, A. (eds) Transnational Actors in International Investment Law. European Yearbook of International Economic Law(). Springer, Cham. https://doi.org/10.1007/978-3-030-60679-4_2

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