Opinion 1/17: Autonomy of EU Legal Order and the Conflicting Context of International Investment Arbitration

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Table of Contents: I. Introduction. – II. The concept of autonomy. – III. The fundamental aspects of the principle of autonomy in the light of Opinion 1/17. – III.1. Opinion 1/17 and the allocation of competences. – III.2. Opinion 1/17 and the preliminary reference procedure. – III.3. Opinion 1/17 and the control of EU law. – IV. Evaluating the principle of autonomy after Opinion 1/17. – V. Conclusions.

Abstract: Opinion 1/17 generated substantial scientific debate about the impact of Investor State Dispute Settlement mechanisms on the dynamic notion of the “autonomy” of the EU legal order. While analysing Opinion 1/17, it is important to evaluate the arguments that convinced the Court in reaching the conclusion that the creation of an Investment Court System provided in CETA to handle investment disputes is compatible with EU law. Focus on the merits of these arguments is amplified by the constant efforts of the CJEU to safeguard its strategic position as the sole guardian of the EU Treaties and of the EU legal order as a whole. The present analysis primarily explores the critical points in the Court’s arguments that are related to the notion of autonomy. The primary argument put forth is that the rationale behind Opinion 1/17 leaves an existent, however narrow, risk for the adequate preservation of the autonomy of EU legal order that needs to be addressed. This enhances the need for the CJEU to find in the future ways for an inclusion of the arbitral dispute settlement structures. Inevitably so, the present analysis highlights the fundamental necessity to preserve the autonomy of EU legal order while exploring the pathway to reconcile two necessities: the need for an autonomous ‘self-dependence’ of the Union’s legal system and the need of conciliation in the field of international investment arbitration. The strategic importance of safeguarding the autonomy of EU Law, a conditio sine qua non for the overall EU integration process, should better rely on practical, technical ways for its observance than to policy influenced fluctuations of its normative substance.

Keywords: Opinion 1/17 – autonomy – preliminary reference procedure – EU legal order – interpreting EU law – international investment arbitration.

European Papers, Vol. 6, 2021, No 1, pp. 631-644
2499-8249 - doi: 10.15166/2499-8249/492

* Associate Professor of EU Law, National & Kapodistrian University of Athens, ametaxas@pspa.uoa.gr.


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