Investor-State Dispute Settlement in EU Trade Agreements in the Light of EU Policy and Law

Abstract

The Investment Court System (ICS) gives foreign investors the possibility to bring complaints about measures adopted by the EU and its Member States to arbitrators, and receive compensation accordingly. At the ICS, under certain conditions foreign investors will be able to challenge public policy measures aimed at, for instance, protection of the environment or public health, if these measures decrease the value of their investments. This chapter focuses on what the right to regulate public welfare objectives means in the light of potential claims by investors under CETA’s provisions, and examines the reasoning of the CJEU in Opinion 1/17 on this particular point. Furthermore, it is investigated whether the need for ICS in the relationship between the EU, the USA and Canada has been demonstrated, in line with the evidence based approach that the Commission underlines as the basis for its own action. Finally, the chapter will assess whether the Commission followed its own guidelines on Trade Sustainability Impact Assessments, i.e. the ex-ante assessment process of treaties under negotiation that includes public participation in order to assist the EU negotiators.