It is possible to conclude that
the ECJ in Opinion 1/09 did not close the door to a dispute settlement mechanism
such as Investor state arbitration clauses in EU agreements with third states
to 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 mean
that, in order to maintain the autonomy of the EU legal order, the ECJ is unlikely
to accept that investment tribunals may interpret and apply EU law2
without these tribunals being courts or tribunals of a Member State within the
meaning of Article 267 TFEU. As indicated, in order for this to happen, the ECJ
would need to change its view such that it would accept that investment
tribunals 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 to
accept, under certain conditions, that arbitral tribunals are courts or
the Court would, moreover, have to be willing to accept that investment
tribunals are ‘courts or tribunals of a Member State’. After recalling Opinion
1/91 , the ECJ concluded that the patent courts system would deprive national
courts of the possibility to request a preliminary ruling and thus threaten the
uniform interpretation and application of EU law guaranteed by the Court5.
1 However a stricter reading
appears to be favoured by R. Barratta, “National Courts as Guardians and Ordinary
Courts of EU Law: Opinion 1/09 of the ECJ”, Legal Issues of Economic
Integration 38, no. 4 (2011): 297-320. On the consequences of Opinion 1/09 on
the possibility to include investor-state arbitration clauses in EU IIAs.
2 Hindelang refers to the view
that strictly speaking, as a matter of law, the autonomy of the EU legal order
may not necessarily be endangered .
However, it is clear that there would be a factual encroachment on the autonomy
of the EU legal order. Hindelang, “The autonomy of the European legal order. EU
constitutional limits to investor-State arbitration on the basis of future EU
investment-related agreements”, in Bungenberg and Herrmann (Eds.), Common
Commercial Policy after Lisbon: Special Issue (Springer Verlag, 2013), pp.
Popov, supra note 37.
4 ECJ, Case 109/88, Handels- og Kontotfunktionerernes Forbund I Danmark v. Dansk
Arbejdsgiverfo-rening,handelndfir Danfoss, 1989 ECR 3199, paras 7-8.
5 Supra note opinion 1/09, paras