I Would Rather Be a Respondent State Before a Domestic Court in the EU than Before an International Investment Tribunal

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Table of Contents: I. Introduction. – II. Who trumps who? – II.1. Is EU law autonomous? – II.2. EU law and Member States’ BITs. – II.3. The peculiar case of the ECT. – III. Achmea or how international investment tribunals do not understand EU law. – III.1. Why investment tribunals do not have jurisdic-tion in all intra-EU disputes? – III.2. The Advocate General’s Opinion is not legally binding and preliminary ruling judgment only answers the questions asked. – III.3. Why is commercial arbitration different? – IV. Who fragments what? – IV.1. The peculiar case of the ECT again: fragmentation or integration? – IV.2. Why is intra-EU context different to extra-EU? – V. Why autonomy matters? – V.1. It matters for EU relationship with international courts. – V.2. It matters for EU integration. – V.3. It matters for practical reasons of enforcement. – VI. Conclusion.

Abstract: In its landmark judgment in the case of Achmea (judgment of 6 March 2018, case C-284/16 [GC]), the Court of Justice adjudicated that Investor-State Dispute Settlement (ISDS) adversely affects the autonomy of EU law. Accordingly, ISDS clauses in international investment agreements that contravene Arts 267 and 344 TFEU and the principles of mutual trust and sincere cooperation enshrined in Arts. 19, para. 1, and 4, para. 3, TEU are inapplicable under EU law. However, the reasoning of the Court of Justice in Achmea did not convince international investment tribunals that they lack jurisdiction in intra-EU investment disputes. This opposition calls for clarification of the different principles underpinning the EU legal order and international investment law. This Article presents a debate between these two legal orders, which unfolds around three separate, albeit related issues: the status and applicability of the EU and the Member States’ international agreements within the EU legal order; the manner in which the Achmea judgment must be interpreted and its application in the international investment law context; and the meaning and relevance of the concept of the autonomy of EU law as the key issue in defining the relationship between EU law and international investment law.

Keywords: autonomy of the EU legal order – international investment law – Arts 267 and 344 TFEU – mutual trust – compatibility of ISDS with EU law – rule of law.

European Papers, Vol. 4, 2019, No 1, pp. 19-70
2499-8249 - doi: 10.15166/2499-8249/287

* Ph.D. Candidate, Centre for European Studies, Australian National University, Guest Researcher, St. Louis University, Brussels, ivana.damjanovic@anu.edu.au. Her research is supported by the Australian Government Research Training Program Scholarship.
** Professor of European Union Law, Jean Monnet Chair, St. Louis University, Brussels, nicolas.desadeleer@usaintlouis.be.


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