Investment Court Judges and the 'Right to an Independent Tribunal': An Assessment of the Qualification and Ethics Rules in EU FTAs in Light of Opinion 1/17

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Table of Contents: I. Introduction. – II. Provisions on ethics and qualifications of adjudicators in the new generation FTAs. – II.1. CETA, EUVIPA and EUSIPA: what is across the board? – II.2. Codes of conduct in the Agreements – III. The Opinion 1/17 and the ethics and qualifications of Members of ICS Tribunals. – III.1. The issue raised by Belgium. – III.2. The Court’s Opinion. – IV. Reflections on the Opinion in light of the agreements’ framework. – IV.1. Arbitration versus a (hybrid) Court. – IV.2. Arbitrators versus "Members of Tribunal" (or judges). – IV.3. The relevance of the compatibility of the IBA guidelines with judges. – V. Conclusion.

Abstract: This Article examines an often overlooked aspect of Opinion 1/17 issued by the Court of Justice of the European Union (CJEU): the ethics and qualifications of the new CETA adjudicators. The subject was raised as an additional concern by Belgium in the context of its request for an opinion from the CJEU. More specifically, Belgium asked whether the prospective ethics and qualifications framework applicable to the newly-established investment tribunal members was compatible with the EU legal order, in particular the right to access an independent tribunal, enshrined under the EU Charter of the Fundamental Rights. After laying forth the provisions contained in the CETA, as well as the EU – Vietnam and EU– Singapore Investment Protection Agreements (IPAs), the Article analyses the Opinion text in juxtaposition with the legal ethics rules, found in treaties or guidelines worldwide, governing the domain of international adjudicator ethics. The Article in particular flags some controversies linked to the Court’s analysis of the International Bar Association’s Guidelines on Conflicts of Interest in International Arbitration and its (now suspended) referral in the CETA text in connection with the ethics framework governing international judges.

Keywords: international arbitration – European Union – Canada – independence – impartiality – ethics.

European Papers, Vol. 6, 2021, No 1, pp. 757-777
2499-8249 - doi: 10.15166/2499-8249/498

* Senior Research Fellow, Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law (MPI Luxembourg),


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