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Publishers Abstract:
This article deals with the jurisdictional clash. The author will show that such conflict cannot be fully addressed by simple reliance on the EU Member State courts. Instead, a system of direct referral from investment tribunals to the ECJ should be allowed. While there is a well-known line of ECJ case law to the effect that arbitral tribunals may not make a reference for a preliminary ruling, the applicability of this case law to investment tribunals has only recently been considered in more detail. The EU Commission apparently assumes that it does apply, since the alleged inability of investment tribunals to make a reference to the ECJ lies at the very heart of its concerns about investment treaty arbitration within the EU. The author will first set out the conventional approach under EU law emerging from Nordsee and Eco Swiss, which essentially relies on the involvement of EU Member State courts in international arbitration cases.
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