Opinion 1/17 in Light of Achmea: Chronicle of an Opinion Foretold?

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Table of Contents: I. Introduction. – II. Achmea’s relevance as a precedent for Opinion 1/17. – III. Application of the Achmea test to the CETA tribunal. – IV. Conclusion: an Opinion foretold?

Abstract: The Achmea judgment of the Court of Justice (judgment of 6 March 2018, case C-284/16 [GC]) indicates that two Member States cannot set up an investor-to-state dispute settlement mechanism via a bilateral investment agreement inter se. Does this imply that the Union cannot set up an international investment tribunal through an agreement with a third State? The Court will rule on this issue in Opinion 1/17, dealing with the compatibility between the Canada-EU Comprehensive Economic and Trade Agreement (CETA) and EU Treaties. The present Overview suggests that the Court drafted Achmea having Opinion procedure 1/17 in mind. However, the Achmea judgment is ambiguous: the Court implicitly distinguished Achmea from CETA but elaborated a test potentially applicable to all investment tribunals, including the CETA Tribunal, which is at issue in Opinion procedure 1/17. Should the Court apply the Achmea test in Opinion 1/17, the fate of the CETA Tribunal might be all but sealed.

Keywords: investment – ISDS – CETA – Investment Court System – autonomy – mutual trust.

European Papers, Vol. 4, 2019, No 1, pp. 109-121
2499-8249 - doi: 10.15166/2499-8249/259

* Research Associate, University of Luxembourg, mauro.gatti@uni.lu.


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