Skip to main content

CIArb News

ECJ Required to Give an Opinion

4 October 2017 Features

At the beginning of September, the Belgian Deputy Prime Minister and Minister of Foreign Affairs submitted a request to the Court of the Justice of the European Union (CJEU) to consider the issue of compatibility of the Investment Court System (ICS) and European legislation. This was the result of concerns raised by the regional assembly of Wallonia when it was considering whether to sign the Comprehensive Economic and Trade Agreement (CETA).

The Belgian Government asked the CJEU to provide an opinion with regard to the compatibility of the ICS with the CJEU’s exclusive competence to provide a final interpretation of EU law, the rights of access to courts and to an independent and impartial judiciary as well as the principles of equality and practical effect of EU law. The Belgian Government did not take any position on the issues, although it wished to clarify these points in light of the CETA legal framework.

With regard to the right to an independent and impartial judiciary, Belgium also asked the CJEU for its opinion on the following aspects:

  1. The conditions regarding the remuneration of the members of the Tribunal and the Appeals Body;
  2. The appointment of members of the Tribunal and the Appeals Body;
  3. The release of members of the Tribunal and Appeals Body;
  4. The guidelines of the International Bar Association (IBA) regarding conflicts of interest in international arbitration and the introduction of a code of conduct for the members of the Tribunal and the Appeals Body;
  5. The external professional activities related to investment disputes of members of the Tribunal and the Appeals Body.

Belgium’s request does not seem to impact CETA, as the request excluded the provisions relating to CETA’s provisional application. However, given that Belgium’s request is focused on the particularities of ICS, the CJEU’s Opinion may offer some clarifications on the functioning of the multilateral investment court in favour of the ad hoc investor-state dispute settlement (ISDS), as the ICS represents a first step towards the establishment of a multilateral investment court. In this sense, Belgium noted in its request that certain aspects regarding ICS still need to be decided by the Council of the European Union based on the proposal of the EU Commission.

This opinion would be most welcome by the legal community, as there are currently a number of unanswered questions regarding the multilateral investment court system. Such questions include, inter alia, the qualification of the arbitrators, enforceability of the awards and the funding of the entire system. Considering the fact that work on the multilateral investment court could start as early as next November a draft text for the multilateral investment court system could be on the table by the end of 2018, so that the first signatures could be put under such a text in 2019, making the MIC a reality by 2020.[1]

Sabina Adascalitei LLB, LLM, MCIArb

Research and Academic Affairs Coordinator