http://www.ejiltalk.org/investment-treaties-and-eu-law/ Blog of the European Journal of International Law Mon, 06 Sep 2010 11:35:59 +0000 http://wordpress.org/?v=2.9.2 hourly 1 http://www.ejiltalk.org/investment-treaties-and-eu-law/comment-page-1/#comment-425 Nikos Lavranos Fri, 25 Sep 2009 14:05:47 +0000 http://www.ejiltalk.org/?p=1346#comment-425 While I share Piet Eeckhout's analysis that the ECJ went too far by applying this 'hypothetical incompatibility' approach (see my case-note in the upcoming AJIL 2009 October issue) , I think, the ECJ's uncompromising position can be explained by another reason: namely, the ECJ's concern that its exclusive jurisdiction is increasingly undermined by investment arbitral tribunals that find themselves interpreting EC law, in particular the free movement of capital provisions as well as generally the non-discrimination principle. This applies in particular to intra-EC Member States BITs. Since the MOX plant judgment, we know that the ECJ is not ready to accept any interference - how potential and remote that may be - from other international courts and tribunals. The question is: can the ECJ continue to de-couple and insulate the Community legal order from the international legal order? We have seen in the context of the interaction between WTO law and EC law that this is not a sustainable approach, in particular when private party interests are directly affected as is usually the case with foreign investments. So, at the end of the day, it all boils down to the Rule of Law, which is increasingly applied by the ECJ on a selective basis - and it seems that the list of exceptions is becoming longer rather than shorter. While I share Piet Eeckhout’s analysis that the ECJ went too far by applying this ‘hypothetical incompatibility’ approach (see my case-note in the upcoming AJIL 2009 October issue) , I think, the ECJ’s uncompromising position can be explained by another reason: namely, the ECJ’s concern that its exclusive jurisdiction is increasingly undermined by investment arbitral tribunals that find themselves interpreting EC law, in particular the free movement of capital provisions as well as generally the non-discrimination principle. This applies in particular to intra-EC Member States BITs.
Since the MOX plant judgment, we know that the ECJ is not ready to accept any interference – how potential and remote that may be – from other international courts and tribunals.
The question is: can the ECJ continue to de-couple and insulate the Community legal order from the international legal order? We have seen in the context of the interaction between WTO law and EC law that this is not a sustainable approach, in particular when private party interests are directly affected as is usually the case with foreign investments.
So, at the end of the day, it all boils down to the Rule of Law, which is increasingly applied by the ECJ on a selective basis – and it seems that the list of exceptions is becoming longer rather than shorter.

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