The Multilateral Investment Court : royal road or dead end for the EU legal order? = Le Tribunal Multilateral des Investissements: voie royale ou empasse pour l'ordre juridique de l'Union?

Abstract

The European Court of Justice has opened the door with its CETA Opinion for the establishment of a new international dispute settlement system, which, however, must fulfill high requirements, which must yet see the light of day. The European Court of Justice will guard consistency of such court with the EU constitutional identity. The considerations here presented show that it would be feasible to set up a new multilateral court on foreign investment, taking full account of efficiency and legitimacy considerations. Even if only procedural improvements are currently being discussed, both on the part of the EU and in the context of UNCITRAL, the European Court of Justice has made clear that the interpretation of protection standards must play a role from the point of view of democratic legitimacy. However, this does not mean that they have to be completely rewritten. In many cases, fundamental rights of the Member States are convincing because of their brevity. Only the constitutional jurisprudence leads then in many states to a consideration in particular of general political objectives with the individual basic rights. The further development will depend solely on the political will of the negotiating parties. Canada, the EU with its Member States, as well as Singapore, Mexico and Vietnam have already spoken out in favor of an MIC. It remains to be seen whether, given the high requirements the European Court of Justice formulated for this new court system, it will be possible to persuade other heavyweights of accession or support. However, should it be possible to persuade China, including its network and new investment protection efforts under the new Belt Road Initiative, of membership of the MIC, or include an investment dispute settlement through MIC in an agreement with MERCOSUR, then such a court project could actually become a reality.