Influence of Jurisdictional Matters over the Substance of Investment Agreements: The Case-law of the European Court of Justice and the European Union Investment Policy
Influence of Jurisdictional Matters over the Substance of Investment Agreements: The Case-law of the European Court of Justice and the European Union Investment Policy

Summary/Abstract: The study observes two elements derived in well-known cases of the European Court of Justice, where substantial elements ofinvestment law were essentially influenced by the interpretation to be given to jurisdictional matters. One element is represented by the intra-EU Bilateral Investment Treaties. Following the Achmea ruling of the European Court of Justice, that decided that the arbitration clause in the Bilateral Investment Treaties are incompatible with the exclusive jurisdiction of the Luxemburg Court, the Member States signed, on 5 May 2020, an agreement on the termination of the intra-EU Bilateral Investment Treaties. The agreement shall enter into force successfully, for the Member States that will ratify. However, it is the interpretative value and the object and purpose of this agreement that may represent the most important aspects. The second element is represented by the conditions foreseen by the European Court of Justice in order to accept the dispute settlement mechanism provided by the Comprehensive Economic and Trade Agreement with Canada (CETA) as compatible with EU law. Although the Court examined the dispute settlement system, the conditions it has identified – valid also for future agreements – relate to the substance of the document, mainly to the clauses concerning fair and equitable treatment and indirect expropriation.

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