Investment Arbitration under EU Investment Agreements: Is There a Role for an Autonomous EU Legal Order?

Abstract:

The present paper argues, that the investment court fails to guarantee overall compatibility with the Treaty. In particular, the principle of autonomy, which the Court of Justice has over the years developed into an effective tool protecting its own jurisdictional prerogatives, is likely to have an impact on the establishment of the investment court.

Accordingly, as the investment court will ultimately engage in the interpretation of EU law and it assessment against broadly defined international standards it fulfills a judicial function that is reserved to the Court of Justice. In the absence of the prior involvement of the Court, and considering the exclusion of domestic courts from the process of dispute resolution, the present paper concludes that the currently envisaged investment court system is incompatible with the Treaty.