Opinion 1/17 | Compatibility of the mechanism for the settlement of disputes between investors and States in CETA with EU primary law

Summary:

Opinion published by the Court of Justice of the European Union (CJEU) on 30 April 2019, which argues that the mechanism for the resolution of disputes between investors and States - an Investor-State Dispute Settlement (ISDS) - provided for by the free trade agreement between the European Union (EU) and Canada - the so-called CETA - is compatible with EU law.

Further information:

The European Union and Canada signed in October 2016 a free trade agreement, also known as Comprehensive Economic and Trade Agreement (CETA). One of the aims of CETA concerned with investment is to establish a mechanism for the settlement of disputes between investors and States through the creation of a Tribunal and an Appellate Tribunal and, in the longer term, a multilateral investment tribunal. The aim is thus to establish an 'Investment Court System' (ICS).

On 7 September 2017, Belgium requested an Opinion of the Court of Justice concerning the compatibility of that mechanism with EU primary law. There were doubts as to the effect of such mechanism on the exclusive jurisdiction of the CJEU over the definitive interpretation of EU law, as to its compatibility with the general principle of equal treatment, and as to whether that mechanism complies with the right of access to an independent and impartial tribunal.

The Opinion published by the CJEU considers that an international agreement providing for the creation of a court responsible for the interpretation of its provisions and whose decisions are binding on the EU, is, in principle, compatible with EU law. It argues that the CETA does not confer on the envisaged tribunals any jurisdiction to interpret or apply EU law other than that relating to the provisions of that agreement. The CJEU also finds that the agreement does not adversely affect the autonomy of the EU legal order.

• Primary Source

Commentary and Analysis

Verfassungsblog, 04/07/2018: CETA’s Investment Court System and the Autonomy of EU Law: Insights from the Hearing in Opinion 1/17 https://verfassungsblog.de/cetas-investment-court-system-and-the-autonomy-of-eu-law-insights-from-the-hearing-in-opinion-1-17/

European Law Blog, 07/02/2019: A Parallel Universe: Advocate General Bot in Opinion 1/17 https://europeanlawblog.eu/tag/opinion-1-17/

Kluwer Arbitration Blog, 30/04/2019: Opinion 1/17 – The CJEU Confirms that CETA’s Investment Court System is Compatible with EU Law http://arbitrationblog.kluwerarbitration.com/2019/04/30/opinion-117-the-cjeu-confirms-that-cetas-investment-court-system-is-compatible-with-eu-law/

EU Law Analysis, 02/05/2019: ‘We *aren’t* the world’: the CJEU reconciles EU law with international (investment) law http://eulawanalysis.blogspot.com/2019/05/we-arent-world-cjeu-reconciles-eu-law.html

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News

Reuters, 30/04/2019: EU court backs use of trade tribunals to protect foreign investors https://uk.reuters.com/article/idUKKCN1S60LU

Bloomberg, 30/04/2019: EU’s Canada Trade Deal Gets Green Light From Bloc’s Top Court https://www.bloomberg.com/news/articles/2019-04-30/eu-s-canada-trade-deal-gets-green-light-from-bloc-s-top-court

CBC News, 30/04/2019: EU court rules investor protections in Canada's trade deal are legal https://www.cbc.ca/news/politics/eu-court-canada-ceta-1.5116305

EUObserver, 01/05/2019: EU top court backs Canada trade deal in ruling https://euobserver.com/economic/144765

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Official

Belgium Government: Newsroom, 06/09/2017: Minister Reynders submits request for opinion on CETA https://diplomatie.belgium.be/en/newsroom/news/2017/minister_reynders_submits_request_opinion_ceta

CJEU: Press Release, 30/04/2019: CJEU Opinion 1/17 https://curia.europa.eu/jcms/jcms/p1_1955214/en/

European Commission: Press Release, 30/04/2019: Trade: European Court of Justice confirms compatibility of Investment Court System with EU Treaties http://europa.eu/rapid/press-release_IP-19-2334_en.htm

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