76
Ingolf Pernice
Deuxième séance de travail — Les retombées
The conditions and limits posed specifically to the EU with a view to the
concept
of autonomy of EU law,
to subjecting itself to the current model of
investor-State arbitration in comprehensive free trade agreements currently
negotiated with the USA (
69
), Canada, Singapore, and India (
70
), however, have
received little attention so far (
71
). Like in the existing agreements between
Member States or of Member States with third countries questions on the
treatment of investors, such as regarding the application of European state
aid law, by national authorities may arise and be decided under the applicable
dispute resolution rules by arbitration tribunals giving awards to be enforced
worldwide, without the ECJ having an opportunity to give a ruling on the in-
terpretation of the EU law at stake. The very purpose of these arbitration pro-
cedures established by international agreements is exactly to detract disputes
from the normal jurisdiction of the contracting parties, for national courts
are suspected to be biased and not to provide for foreign investors impar-
tial legal protection. In the case of the EU or its Member States such disputes
may include, however, the application and interpretation of Union law (
72
). If
arbitration tribunals do not avoid or forget dealing with them at all, there is
a risk that they give provisions of Union law a final and binding interpreta-
tion, which is contrary to the jurisprudence of the ECJ. In any case, the ECJ
is excluded from exercising the function normally reserved to it under the
Treaties. At least indirectly, this would encroach upon the prerogatives of the
ECJ as spelled out in the Courts Opinion 1/91 on the EEA, reminding that:
(
69
) First published documents:
.
(
70
) The purported text of the negotiating directives has been made public by a NGO, cf. Seattle
to Brussels Network, Text of the Mandates, available at
/
eu-investment-policy/eu-documents/text-of-the-mandates.html, last visited 30.7.2013
(
71
) See however Steffen Hindelang, Der primärrechtliche Rahmen einer EU-
Investitionsschutzpolitik: Zulässigkeit und Grenzen von Investor-Staat-Schiedsverfahren
aufgrund künftiger EU Abkommen, in: Marc Bungenberg / Christoph Herrmann (eds.),
Die Gemeinsame Handelspolitik der Europäischen Union ‘nach Lissabon’ (Nomos Baden-
Baden, 2011) p. 157 et seq, also available as WHI Paper 01/11,
eu/tl_files/documents/whi-paper0111.pdf; idem, The Autonomy of the European Legal
Order – EU Constitutional Limits to Investor-State Arbitration on the Basis of Future EU
Investment-related Agreements, in: Marc Bungenberg und Christoph Herrmann (eds.),
Common Commercial Policy after Lisbon, Special Issue to the European Yearbook of
International Economic Law, Springer, Heidelberg 2013) p. 187 et seq.
(
72
) There are good reasons to assume therefore, that intra-EU investment agreements are
inacceptable and, in the light of Article 344 TFEU also violating EU law. This is what v.
Papp (note 66), paragraph 6.1, seems to argue. Contrary to what she seems to suggest, the
mere fact that in a concrete case the dispute is carried out between a private investor and a
state does not exclude the application of Article 344 TFEU, since it would be the agreement
between Member States which substitute normal courts including the ECJ by arbitration.
