Table of Contents: I. Eureka moments. – II. A strict versus a lenient approach: hypotethicals, fictions and cursory analyses. – II.1. Hypotethicals can make the difference between a strict or a lenient approach. – II.2. Fictions and assumptions used as legal arguments. – II.3. Not analysing an issue thoroughly enough. – III. External autonomy as a shapeshifter and its similar functions to direct effect. – IV. Conclusions.
Abstract: Academics often get caught up in analysing every minute legal technicality in the Court of Justice’s assessment of a foreign dispute settlement mechanism (DSM)’s compatibility with EU law and its autonomy. This is not surprising as the compatibility assessment in essence is a constitutionality check with great ramifications. Instead of this formalistic approach, this article invites academics and practitioners alike to view autonomy as a “shapeshifter”. Just like the “direct effect” of international law in the EU legal order, “external autonomy” will morph into a shield that protects EU law from international law or it will become an embracer of international law and international DSMs. The shapeshifting might in part depend on the extent to which non-legal considerations inform the Court’s strict or narrow approaches to the compatibility assessment. The Court achieves this with the help of different techniques, such as the reliance on various hypotheses and fictions, and the summary treatment of certain issues that might be crucial to the assessment.
Keywords: autonomy – CETA – Opinion 1/17 – Opinion 2/13 – direct effect – Investment Court System.
* Lecturer, Keele University School of Law, firstname.lastname@example.org.