EU’s International Treaties, the New Investment Court System (ICS) and Human Rights

di Annalisa Ciampi

SOMMARIO: 1. Premise. – 2. The autonomy of the EU legal order and the true “revolution” of the ICS. – 3. The applicability of the principle of equality before the law. – 3.1. The requirement that the situations of foreign and EU investors be “comparable”. – 3.2. The historical evolution of ISDS and the question of whether the difference in treatment between foreign and European investors is (still) justified. – 4. The individual right of access to an independent tribunal. – 4.1. Accessibility. – 4.2. The requirement of independence. – 5. Conclusions.

With Opinion 1/17, the ECJ has declared the compatibility with EU primary law of the mechanism for the international settlement of disputes between investors and States (ISDS), established under the CETA, a free trade agreement between Canada, on the one hand, and the EU and its Member States, on the other.
The present article focuses on the challenges raised by the Belgian government on the basis of human rights, in addition to that based on the autonomy of the EU legal order. In relation to the principle of equal treatment before the law, it argues that the Court erred in holding that Canadian enterprises and natural persons that invest within the Union are in a situation that is not comparable to that of Member States’ investors in the same commercial or industrial sector of the EU internal market. It further submits that as a result of the historical evolution of ISDS and the remedies currently available under EU law and the national law of the member states to European and foreign investors alike, the finding that the latter are to have a specific legal remedy against EU and domestic measures might be no longer justified. It finally considers that in the assessment of whether the ICS will be an accessible and independent tribunal, the Court exceeded the level of speculation allowed under Art. 218(11) of the Treaty on the Functioning of the EU (TFEU) and understated the guarantees generally required from national judiciaries.