The Conclusion and Implementation of EU Free Trade Agreements
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The Conclusion and Implementation of EU Free Trade Agreements

Constitutional Challenges

Edited by Isabelle Bosse-Platière and Cécile Rapoport

This timely book gives an overview of the main legal issues the EU faces in negotiating, concluding and implementing so-called ‘New Generation’ free trade agreements. Featuring contributions by international specialists on EU external action, this book demonstrates why these FTAs have become challenging for the EU, as well as analysing how the EU has dealt with its institutional constraints, and addresses contemporary debates and future challenges for EU institutions and Member States.
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Chapter 13: The internationalization of the judicial control of EU free trade agreements: when better is the enemy of good

Jean Félix Delile

Abstract

Ever since the EU acquired a new competence in foreign direct investment in 2009, investor-State dispute settlements (ISDS) have been included in the new generation of free trade and investment agreements (NGFTAs). At the same time, the EU agreed with the contracting parties to exclude the direct effect of these agreements, even though the previous generation of FTAs produced this kind of effect and could therefore be invoked before the European Court of Justice (ECJ) and the Member States’ jurisdictions. This chapter seeks to determine whether the ISDS offers an improvement of the judicial protection of private persons in the field covered by the NGFTAs. To that purpose, a comparison is made between judicial protection offered by the new ISDS and the one offered by the ECJ and the Member States’ jurisdictions concerning the previous generation of FTAs. The example of the Comprehensive Economic and Trade Agreement (CETA) is used in order to show that the ISDS does not necessarily improve the level of protection of private persons’ treaty-based rights. Indeed, numerous arguments show that a better judicial protection would have been provided by EU domestic jurisdictions. But the worst threat to the NGFTAs was the hypothesis of the lack of a body having jurisdiction to sanction the breaches of their provisions. This chapter, written before Opinion 1/17, exposes the lack of judicial protection that would have been provided if the ECJ had judged that the ISDS stood against EU law.

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