Preliminary references and investment tribunals: is the Luxembourg Court extending a helping hand?

The relationship of arbitral tribunals with the Court of Justice of the European Union (CJEU) has been the subject of a long-lasting juridical struggle. The current position is as simple and pragmatic as it is controversial. Commercial arbitration tribunals are not considered to be a ‘court and tribunal of a Member State’ within the meaning of the Article 267 TFEU and, thus, unable to refer questions to the CJEU on matters of interpretation of EU law. At the same time, it is an open secret that questions of EU law do arise during arbitration proceedings, and there is an inherent risk that tribunals get it wrong—at least sometimes. In commercial arbitration these shortcomings might be addressed through the indirect involvement of domestic courts and the CJEU at the recognition and enforcement stage of arbitral awards.

A similar possibility might not exist in investment arbitration and for some time now the question of whether or not investment tribunals are entitled to request preliminary references from the CJEU has been simmering under the surface of a deeply politicised debate on investor-state dispute settlement provisions in currently ongoing negotiations for deep and comprehensive trade and investment agreements with, inter alia, Canada and the US.

A recent opinion of Advocate General Wathelet might break new ground in this debate and prepare the field for future judicial dialogue.

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