This article draws upon the jurisprudence of the Court of Justice of the European Union (CJEU) concerning the role of the international dispute settlement mechanisms operating within the EU legal order. The Court has resisted the introduction of such dispute settlement mechanisms, referring to Articles 267 and 344 of the Treaty of the Functioning of the European Union (TFEU) as justifications for its ‘judicial monopoly’. The Achmea case in particular allows the Court to declare these dispute settlement mechanisms contrary to EU law. However, with the Comprehensive Economic Trade Agreement (CETA) Opinion, the Court itself has permitted the CETA Investment Court to be compatible with EU law, and within the Comprehensive Economic Trade Agreement (CETA) with Canada. This leads to the possibility that the Court’s reasoning should be equally applicable to other potential investment courts. The present article is a doctrinal study; which examined primary sources of EU law—namely the Treaties and the CJEU’s jurisprudence within international commercial and investment law. It is argued that there are ‘winds of change’ within the EU legal order as the EU legal order begins to readily adopt such dispute settlement mechanisms. This is visible through the approval of the CETA Investment Court, coexisting with debates on developing a permanent multilateral court within the EU legal order and following Brexit the use of arbitration within the EU and UK trade agreements. However, at the same time, these advancements should be taken with caution because the recent developments within the UK-EU trade agreements illustrate that the CJEU may still be keen to protect its ‘exclusive jurisdiction’ under the Treaties.
The CJEU and the Introduction of International Dispute Settlement Mechanisms Within the EU: Is Alternative Dispute Resolution in the EU in Safe Hands?,
22 Pepp. Disp. Resol. L.J.
Available at: https://digitalcommons.pepperdine.edu/drlj/vol22/iss2/5