Edited by Isabelle Bosse-Platière and Cécile Rapoport
Chapter 13: The internationalization of the judicial control of EU free trade agreements: when better is the enemy of good
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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