Revue - Les Cahiers de l'Arbitrage N°1-2023 - 73

DOCTRINES - DÉBATS
basis of that contract unlawful since it would be contrary to the provisions and
fundamental principles governing the EU legal order ... . 50
There is simply no way to reconcile the CJEU's application of Achmea to an
arbitration agreement between a Luxembourg investor and Poland in PL Holdings
with the above-mentioned assurance given by the Court in Achmea that the ruling
in that case had no application to contract-based commercial disputes between
a Member State and a national of another Member State. In effect, the CJEU has
withdrawn the express assurances it gave in Achmea that the decision was limited
to BIT-based arbitrations and awards, and extended neither to arbitrations or
awards under the EU's own investment agreements, nor to arbitrations and awards
predicated on a commercial contract between and investor and a home State. The
CJEU did not even acknowledge its departure from those assurances.
(e) Opinion 1/17
One could legitimately wonder how, if the problem with intra-EU arbitration
lay in the fact that an arbitral tribunal resolving a dispute entailing the interpretation
and application of EU law represented a threat to the autonomy of EU law, the
CJEU could accept the arbitration of disputes arising out of the EU's own investment
agreements with other countries, such as the Commission proceeded to negotiate
with Canada, Singapore and Vietnam, and later other States. Tribunals hearing
cases arising under those agreements are just as likely to be called upon to interpret
and apply EU law as tribunals adjudicating intra-EU disputes, and they too are not
authorized to make preliminary references to the CJEU. That very thought evidently
occurred to Belgium, which, following Achmea, asked the CJEU for a formal
opinion on whether the EU could, in light of the risk that intra-EU BITs present
to the autonomy of EU law, validly enter into the contemplated Comprehensive
Economic and Trade Agreement (CETA) 51
with Canada, the negotiation of which
was well underway.
In its Opinion, 52
the CJEU affirmed the compatibility of the CETA with EU
law on all grounds raised by Belgium, including the potential threat to EU law
autonomy. The Court conceded that CETA tribunals, like intra-EU BIT tribunals,
cannot make preliminary references to it on the meaning or validity of EU law.
However, it concluded that that circumstance could not possibly adversely affect
the autonomy of the EU legal order because the authority of CETA tribunals is
limited to the interpretation and application of the CETA and does not extend to
the interpretation and application of EU law: 53
CETA must ... be distinguished from the investment agreement at issue in ...
Achmea ... since, as stated by the Court in ... that judgment, that agreement
established a tribunal that would be called upon to give rulings on disputes that
might concern the interpretation or application of EU law.
50. Id. ¶¶ 47, 52, 54.
51. Comprehensive Economic and Trade Agreement, S.C. 2017, c. 6; OJ L 11, 14.1.2017, p. 23
(Jan. 14, 2017) [hereinafter CETA].
52. Opinion 1/17 of the Court, ECLI:EU:C:2019:341 (Apr. 30, 2019) [hereinafter Opinion 1/17].
53. Id. ¶¶ 118, 121-22, 134.
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