Assessment of the Jurisdictional Conflict between the CJEU and Investor-State Tribunals from the Perspective of Neofunctionalism
| Autor | Ewa Zelazna |
| Páginas | 85-109 |
8585
CAPÍTULO 4
Assessment of the Jurisdictional
Conflict between the CJEU and
Investor-State Tribunals from the
Perspective of Neofunctionalism
1. INTRODUCTION
Since the inception of the EU’s investment policy, the Commission
has expressed a strong preference in favour of including investor-state arbi-
tration in EU’s future international agreements covering this sphere.1 Such
a dispute resolution mechanism has been traditionally contained in Mem-
ber States’ Bilateral Investment Treaties (BITs) and is regarded as an im-
portant guarantee of investment protection standards.2
1 Commission Communication, ‘Communication from the Commission to the Eu-
ropean Parliament, the Council, the European Economic and Social Committee
and the Committee of the Regions - Towards a comprehensive European interna-
tional investment policy’ COM (2010) 343, at 9-10.
2 R. Dolzer and C. Schreuer, Principles of International Investment Law (2nd ed.,
Oxford University Press, Oxford, 2014) at 237.
Ewa ZELAZNA*
·
* Ewa Żelazna is a PhD Candidate at the University of Leicester. All web references
were accessed on 30 April 2017.
86 LA POLÍTICA DE LA UNIÓN EUROPEA EN MATERIA DE DERECHO DE LAS INVERSIONES INTERNACIONALES
EWA ZELAZNA
·
One of the main characteristics of investor-state arbitration is its in-
dependence from existing court structures of host states.3 is specic fea-
ture of the system allows to depoliticise investment claims, as well as to
ensure eective and objective resolution of commercial disputes.4 e inde-
pendent nature of investment arbitration may, however, pose certain cha-
llenges from the perspective of its compatibility with EU law, and create
tensions with the Court of Justice of the European Union (CJEU).
is contribution evaluates the compatibility of the jurisdiction of
investor-state tribunals with the powers of the CJEU from the perspective
of the neofunctionalist theory of integration. rough analysing the unique
role that the law plays in the process of integration, this contribution seeks
to shed light on reasons why the CJEU adopts a cautious approach towards
external courts and tribunals. Furthermore, it is examined how the position
of the CJEU towards international law and its enforcement organs is likely
to impact upon the future development of the EU’s investment policy. e
scope of this enquiry is limited to the assessment of the potential jurisdic-
tional conict between the CJEU and investor-state tribunals and a review
of compatibility of the substantive provisions in investment treaties with
EU law is outside of its scope.
2. THE ROLE OF EU LAW IN THE
PROCESS OF INTEGRATION
2.1. THE CONSTITUTIONALIZATION OF THE TREATY
In accordance with Article 218(11) Treaty on the Functioning of the
European Union (TFEU), upon an application from a Member State or an
EU institution the CJEU may scrutinise any international agreement the
3 Ibid, at 235.
4 C.F. Dugan et al, Investor-State Arbit ration (O xford University Press, Oxford,
2008), at 13-18.
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