Autonomy or Unity? Investment Protection (ISDS) and the Principle of Equality Before the Law

Printer-friendly version

Table of Contents: I. Introduction. – II. The pre-assessment. – II.1. The legal question. – II.2. The Court’s rejection of Article 21 CFR. – III. The Court’s assessment of art. 20 CFR. – III.1. “Within the Union itself”. – III.2. Procedural rights – different differently. – III.3. Substantive rights – equals equally. – IV. An alternative way to make sense of art. 20 CFR. – IV.1. “Everyone”. – IV.2. “Is equal”. – IV.3. “The law”. – IV.4. A Constitutional choice. – V. The constitutional dilemmas. – V.1. Compliance with the rule of law versus the rule of law as a foundational value. – V.2. Quick fix versus long-term refinement. – V.3. Inclusion versus exclusion of national Courts. –VI. Justification. – VI.1. The hidden rational. – VI.2. Autonomy or unity? The silent choice. – VII. Conclusion.

Abstract: According to Opinion 1/17, the ISDS mechanism contained in CETA is in conformity with the fundamental requirement of art. 20 of the Charter of Fundamental Rights that “everyone is equal before the law”. The assessment rests on two assumptions. First, in the substantive sense, CETA does not afford a higher level of protection to Canadian investors than EU law affords to European investors. In this respect, investors of different origins are equals who are treated equally. Secondly, ISDS provides specific procedural rights to foreign investors, which cannot be invoked by domestic investors. According to the ECJ, Canadian investors are not legally obliged to have the same trust in the institutional system of the EU as domestic investors. In this respect, Canadian investors are different from European investors, thus it is justified to treat them differently. The Article shows that in addition to the Court’s assessment of substantive and procedural aspects, art. 20 CFR can be constructed to contain a systemic requirement of unity. The paper identifies a looming conflict between EU law’s autonomy and Law’s unity that may explain why the Court chose not to engage in a more open-hearted attempt to identify the values inherent in art. 20 CFR. Due to its strong protection of the autonomy of EU law, the ECJ has embraced what is in fact the main problem of the ISDS mechanism – its complete disentanglement from the legal order that it scrutinizes. In the absence of unity, autonomy’s guarantor – “everyone” – is cut off.

Keywords: Autonomy – CETA – discrimination – equality – ISDS – unity.

European Papers, Vol. 6, 2021, No 1, pp. 713-739
2499-8249 - doi: 10.15166/2499-8249/496

* Professor Centre for European Law, University of Oslo,


European Forum


Forum Européen


Forum europeo


Foro Europeo