Table of Contents: I. Introduction. – II. Questioning art. 47’s role in the Opinion procedure. – II.1. Art. 47’s specific scope of application. – II.2. The specific function of art. 47. – III. Judicial protection standards in the opinion procedure. – III.1. Judicial protection as part of the autonomy claim? – III.2. Judicial protection as part of the common commercial policy. – IV. Concluding remarks.
Abstract: In Opinion 1/17 the CJEU held that the ISDS Mechanism under the CETA is compatible with Union law, including the right of access to an independent tribunal, as enshrined in art. 47(2) and (3) of the Charter. Although the emphasis on access to an independent tribunal, as a separate ground in the compatibility review, has a constitutional dimension, the applicability of art. 47(2) and (3) with regard to an independent dispute settlement mechanism, that stands outside of the judicial systems of CETA’s Parties, invites to discuss the place of art. 47 of the Charter in the Opinion procedure. The Article suggests distinguishing the right of access to an independent tribunal, which is to be preserved in CETA’s ISDS mechanism, from art. 47 of the Charter, in light of its specific scope of application and function in the EU legal order. The CETA’s guarantees of judicial protection could be assessed from the perspective of the autonomy claim. However, this would lead to conceptual difficulties that could be circumvented by assessing the guarantee of a right of access to an independent court from the perspective of CETA’s compatibility with art. 207 of the TFEU, as the standards of judicial independence can enter substantive primary EU law through their absorption by the Union’s objectives in the field of common commercial policy. Promoting judicial protection as part of the trade policy could reinforce the credibility of the Union as an actor in international trade and in international procedural law.
Keywords: ISDS – CETA – art. 47 of the Charter – independence of investment courts – Opinion procedure – autonomy.
* Professor, Université du Luxembourg, email@example.com.