It is possible to conclude thatthe ECJ in Opinion 1/09 did not close the door to a dispute settlement mechanismsuch as Investor state arbitration clauses in EU agreements with third statesto the extent that the autonomy of the EU legal order is maintained1.In the context of Investor state arbitration in EU FTAs or IIAs, this would meanthat, in order to maintain the autonomy of the EU legal order, the ECJ is unlikelyto accept that investment tribunals may interpret and apply EU law2without these tribunals being courts or tribunals of a Member State within themeaning of Article 267 TFEU. As indicated, in order for this to happen, the ECJwould need to change its view such that it would accept that investmenttribunals may request preliminary rulings in accordance with Article 267 TFEU3.While the Court has on at least one occasion ruled that it may be willing toaccept, under certain conditions, that arbitral tribunals are courts ortribunals4,the Court would, moreover, have to be willing to accept that investmenttribunals are ‘courts or tribunals of a Member State’.
After recalling Opinion1/91 , the ECJ concluded that the patent courts system would deprive nationalcourts of the possibility to request a preliminary ruling and thus threaten theuniform interpretation and application of EU law guaranteed by the Court5.1 However a stricter readingappears to be favoured by R. Barratta, “National Courts as Guardians and OrdinaryCourts of EU Law: Opinion 1/09 of the ECJ”, Legal Issues of EconomicIntegration 38, no.
4 (2011): 297-320. On the consequences of Opinion 1/09 onthe possibility to include investor-state arbitration clauses in EU IIAs.2 Hindelang refers to the viewthat strictly speaking, as a matter of law, the autonomy of the EU legal ordermay not necessarily be endangered .However, it is clear that there would be a factual encroachment on the autonomyof the EU legal order. Hindelang, “The autonomy of the European legal order. EUconstitutional limits to investor-State arbitration on the basis of future EUinvestment-related agreements”, in Bungenberg and Herrmann (Eds.
), CommonCommercial Policy after Lisbon: Special Issue (Springer Verlag, 2013), pp.187–198,.3 AthanasePopov, supra note 37.
4 ECJ, Case 109/88, Handels- og Kontotfunktionerernes Forbund I Danmark v. DanskArbejdsgiverfo-rening,handelndfir Danfoss, 1989 ECR 3199, paras 7-8.5 Supra note opinion 1/09, paras80-83.