Investor-State dispute settlement in the EU: certainties and uncertainties

Abstract

Since the entry into force of the Treaty of Lisbon in 2009, the EU has undertaken the negotiation of a series of trade and investment agreements with other states, such as Canada, the United States, Vietnam and Singapore. The inclusion of ISDS (investor-State dispute settlement) in these agreements concluded by the EU has raised, in particular, a number of legal issues and met significant opposition in European civil society. Following from this, the EU has carried out reforms which include, inter alia, the creation of an Investment Court System (ICS). In Opinion 2/2015, concerning the Free Trade Agreement between the European Union and the Republic of Singapore, the CJEU has had the opportunity to rule on the competence of the EU on investment policy and on certain aspects of investor-State dispute settlement. However, the Court has not yet ruled on the conformity of ISDS with EU law. This article deals with some of the certainties and uncertainties regarding ISDS from a European perspective. Particular attention is paid to whether the alleged constitutional obstacles posed by ISDS are also present in the proposed Investment Court System. Ultimately, it attempts an assessment of the viability of investor-State dispute settlement in the context of the EU's external action.