A Standing Investment Court under TTIP from the Perspective of the Court of Justice of the European Union

Abstract

This article critically assesses the feasibility of the recently proposed Investment Court System (ICS) under the envisaged Transatlantic Trade and Investment Partnership (TTIP), from the perspective of the Court of Justice of the European Union (CJEU). It is argued that an ex ante assessment of the ICS by the CJEU would likely result in several incompatibilities between the ICS and EU law, since insufficient safeguards exist guaranteeing that the ICS will not interfere with EU fundamental rights and the CJEU’s exclusive jurisdiction to deliver binding interpretations of EU law. Moreover, it is not yet certain whether an incompatibility exists with Article 344 TFEU or with substantive EU values. Furthermore, no preliminary reference mechanism is envisaged with a binding ruling of the CJEU and even if such a system were included, it is uncertain whether the ICS could refer a question to the CJEU.

Citation

(2016). A Standing Investment Court under TTIP from the Perspective of the Court of Justice of the European Union. Journal of World Investment and Trade, 701 -742. https://doi.org/10.1163/22119000-12340010

• Acceptance Date: Sep 28, 2016
• Publication Date: Sep 28, 2016
• Journal: The Journal of World Investment & Trade
• Print ISSN: 1660-7112
• Publisher: Brill Academic Publishers
• Pages: 701 -742
• DOI: https://doi.org/10.1163/22119000-12340010
• Keywords: TTIP, Investment Court System, compatibility with EU Law, ex ante review
• Publisher URL: https://doi.org/10.1163/22119000-12340010