The Legacy of Opinion 1/17: To What Extent Is the Autonomous EU Legal Order Open to New Generation ISDS?

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Table of Contents: I. Introduction. – II. EU and a reformed international investment order. – II.1. Post-Lisbon intra-EU developments and traditional ISDS clauses. – II.2. ISDS Novelty outdated? Commission’s reform agenda and the comprehensive economic and trade agreement with Canada (CETA). – II.3. Main legal issues connected to the new generation ISDS mechanisms and the constitutionality of the EU legal order. – III. Autonomy of the EU law and international legal order. III.1. Architecture and meaning of autonomy of EU legal order. – III.2. Participation of the EU in international dispute settlement: dynamics before Opinion 1/17. – IV. Game of thrones in Opinion 1/17: lessons and prospects. – IV.1. A new de minimis for the principle of autonomy of EU law? – IV.2. Breakdown of “umbrella principle” under the light of ICS. – IV.3. Other issues in Opinion 1/17. – IV.4. Significance of Opinion 1/17. – IV.5. An alternative of an alternative: can multilateral investment court tackle the legitimacy crisis of ISDS, reformed ICS, and comply with the CJEU’s golden principle? – V. Conclusion.

Abstract: The EU-led investor-state dispute settlement (ISDS) reforms have recently gathered significant attention. The EU obligation to contribute to the development of international law through its post-Lisbon exclusive competences in the area of foreign direct investments is what set the stage for the EU to become a fully-fledged global investment actor. As a result, since 2018 the EU has launched an ambitious reform agenda, aimed at transforming the traditional ISDS mechanisms into Investment Court System (ICS) with the ultimate goal of establishing a Multilateral Investment Court. This project, however, could not have circumvented the long-standing sensitive issue of the interplay between international dispute settlement systems and the autonomy of EU law, thus positioning the Court of Justice of the European Union (CJEU) as the ultimate arbitrator of this global agenda. This Article scrutinises how the CJEU conciliated the doctrine of the autonomy of EU legal order with the Investment Court System in Opinion 1/17 departing from its well-known autonomy-preservationist saga. It also examines the key institutional transformations of Investment Court System and how it differs from traditional ISDS and other dispute settlement mechanisms. Finally, the Article analyses the impact of the conclusions of Opinion 1/17 on the future of global investment reforms, in particular, the establishment of the Multilateral Investment Court and further development of the doctrine of the autonomy of EU law.

Keywords: CETA – ISDS – CJEU – Investment Court System – autonomy of EU legal order – Opinion 1/17.

European Papers, Vol. 6, 2021, No 1, pp. 645-673
2499-8249 - doi: 10.15166/2499-8249/493

* Graduate of European Legal Studies, College of Europe (Bruges),


European Forum


Forum Européen


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Foro Europeo