The Autonomy of eu Law and International Investment Arbitration

Abstract

This article argues that, in the context of international investment law, the principle of autonomy need not be construed as broadly as the recent judgment in Achmea suggested. The Court’s approach in this case is formalist, inward looking and hostile to the harmonious co-existence between eu and international law. The article argues, however, that this conception of autonomy should be confined to the specific legal and policy context of investment agreements between Member States of the Union. A careful reading of Achmea supports this view. There are also sound conceptual, legal, and policy reasons that militate for a more open approach to autonomy when it comes to the Union’s trade agreements with third countries.

Third Country Influence on EU Law and Policy‐making: Setting the Scene

“…We do this by considering the justifications for restricting third country participation in the making of EU law and policies, the consequences of such inclusion and the consequences of exclusion on the Union's legal and political order. From a legal‐constitutional perspective, the question of third country influence confronts the principles of sovereignty (Bellamy, 2017; Fassbender, 2003; Pescatore, 1974; Weiler, 1991), autonomy (Koutrakos, 2019; Öberg, 2020; Odermatt, 2018) and mutual trust (Brouwer and Gerard, 2016; Lenaerts, 2017; Nic Shuibhne, 2019). Participation in the decision‐making processes is a means of compensating the EU member states for the costs of membership – the pooling of sovereignty, mutual trust and the risk of future developments of EU integration, which are beyond the control of individual member states.…”

Achmea versus the Rule of Law: CJEU’s Dogmatic Dismissal of Investors’ Rights in Backsliding Member States of the European Union

“…Cf. Koutrakos 2019. Despite that, should the efforts of the Court be successful-as it appears to be the case, this would render non-existent the protection of investors' rights which are not guaranteed by EU law in all the jurisdictions as well as all the other (fundamental) rights in the backsliding Member States. This is not only because of the problems with the rule of law in some of the backsliding Member States, whose hijacked courts are now the only guardians of the rule of law remaining, as we will discuss further in some more detail.…”

“…Consequently, the Court has been out to kill the EU's own baby, bringing about both the annihilation of substantive rights and deep procedural uncertainties in terms of the quality of justice systems involved, all in the name of a proclamation of the mutual trust and the protection of the dialogue between the courts in the Union, while waging a war against international law. Panos Koutrakos is right in stating that 'the Court's approach in this case is formalistic, inward looking and hostile towards harmonious co-existence between EU and international law' (Koutrakos 2019).…”