Revue - Les Cahiers de l'Arbitrage N°1-2023 - 76

ARTICLES - DEBATES
an international investment agreement. It is the contention of the Commission that
these investors receive adequate protection under the provisions of EU law itself,
due to the availability to them of basic EU law principles of free movement of capital
and freedom of establishment, general principles of law such as proportionality
and the protection of legitimate expectations, as well as the EU Charter of Human
Rights and the European Human Rights Convention. 61
The fact remains that while
the European institutions have authority to establish a genuine intra-EU investment
protection regime, 62
and while Member States have urged them to do so, 63
apparently have taken no steps in that direction. 64
In sum, the CJEU, supported by the Commission, has declared investment
agreements entered between two EU Member States to be categorically invalid,
thereby preserving the monopoly of courts in the EU to adjudicate investment
disputes between a Member State and a national of another Member State, in
contravention of the Member States' intention to subject those disputes to arbitration
and despite reliance on the sunset provisions on the part of EU investors. The
CJEU has largely predicated this result on a principle of the autonomy of the EU
legal order that intra-EU arbitration ostensibly threatens, but that arbitration under
the EU's own investment agreements do not, even though it can offer no serious
rationale for the distinction.
Finally, it should not be supposed that the EU's objections to investor-State
dispute resolution, as we know it, are confined to intra-EU arbitration. In its
arrangements with third countries going forward, the EU has effectively abandoned
that system in favor of one that vests exclusive adjudicatory authority in a
permanent court staffed entirely by States themselves. The first such change is
reflected in the EU's new trade agreements with several third countries, starting
with the CETA, 65
an agreement that, as noted, 66
with the autonomy of the EU legal order. 67
the CJEU has found fully consistent
It is also arguing in the proceedings
of UNCITRAL Working Group III in favor of a multilateral investment court as a
worldwide means of resolving international investor-State disputes. 68
61. Commission provides guidance on protection of cross-border EU investments - Questions
and Answers, Eur Comm'n (July 19, 2018), https://ec.europa.eu/commission/presscorner/detail/en/
MEMO_18_4529 (last visited Mar. 9, 2023).
62. The European Commission has been working to establish a Multilateral Investment Court
since 2015. Multilateral Investment Court project, Eur. Comm'n, https://policy.trade.ec.europa.eu/
enforcement-and-protection/multilateral-investment-court-project_en (last visited Jan. 30, 2023).
63. Non-paper on Intra-EU Investment Treaties from Austria, Finland, France, Germany and
the Netherlands (April 7, 2016), https://www.tni.org/files/article-downloads/intra-eu-bits2-18-05_0.
pdf (last visited Jan. 30, 2023).
64. European Parliament resolution of 23 June 2022 on the future of EU international investment
policy (2021/2176(INI)), 2023 O.J. (C 32) 96, 106.
65. CETA, supra note 51.
66. Opinion 1/17, supra note 52,
67. Opinion 1/17, supra notes 52-57.
68. See generally Report of the UNCITRAL Working Group III (Investor-State Dispute Settlement
Reform) on the work of its resumed thirty-eighth session (Jan. 20-24, 2020), https://documentsdds-ny.un.org/doc/UNDOC/GEN/V20/007/33/PDF/V2000733.pdf
(last
visited Mar. 9, 2023). See
further the presentation circulated during the resumed thirty-eighth session encapsulating the main
features of a multilateral investment court and why other reform options do not address the identified
concerns, Structural reform of ISDS: The Establishment of a Multilateral Investment Court, https://
trade.ec.europa.eu/doclib/docs/2021/february/tradoc_159425.pdf (last visited Mar. 9, 2023).
74
The Paris Journal of International Arbitration 2023‑1
they

https://ec.europa.eu/commission/presscorner/detail/en/MEMO_18_4529 https://ec.europa.eu/commission/presscorner/detail/en/MEMO_18_4529 https://policy.trade.ec.europa.eu/enforcement-and-protection/multilateral-investment-court-project_en https://policy.trade.ec.europa.eu/enforcement-and-protection/multilateral-investment-court-project_en https://www.tni.org/files/article-downloads/intra-eu-bits2%E2%80%9118%E2%80%9105_0.pdf https://www.tni.org/files/article-downloads/intra-eu-bits2%E2%80%9118%E2%80%9105_0.pdf https://www.tni.org/files/article-downloads/intra-eu-bits2-18-05_0 https://documents-dds-ny.un.org/doc/UNDOC/GEN/V20/007/33/PDF/V2000733.pdf https://documents-dds-ny.un.org/doc/UNDOC/GEN/V20/007/33/PDF/V2000733.pdf https://documents https://trade.ec.europa.eu/doclib/docs/2021/february/tradoc_159425.pdf http://dds-ny.un.org/doc/UNDOC/GEN/V20/007/33/PDF/V2000733.pdf https://trade.ec.europa.eu/doclib/docs/2021/february/tradoc_159425.pdf http://https:// http://trade.ec.europa.eu/doclib/docs/2021/february/tradoc_159425.pdf

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

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