The conferral of competence over foreign direct investment on the European Union in the Treaty on the Functioning of the European Union (hereinafter, TFEU) brought with it legal issues, in particular in respect to the boundaries of power conferred and the limitations on the inclusion of investment dispute mechanisms in investment agreements. In this regard, first, according to the Court of Justice of the European Union (hereinafter, CJEU, ECJ or the Court), insofar as an investment agreement concerns non-direct foreign investment and/or investor-state dispute settlement mechanisms, it will have to be concluded as a mixed agreement between the EU and the Member States. Second, EU’s engagement in reforming the investment dispute settlement mechanism by introducing an investment tribunal to solve disputes stemming from investment agreements has been reflected in the new generation investment agreements, such as EU – Canada Comprehensive Economic and Trade Agreement (hereinafter, CETA). The Investment Court System consists of a permanent and institutionalized Tribunal, whose members are appointed in advance by the Parties to the agreement and whose decisions are subject to review by an Appellate Tribunal. The EU aims that this mechanism will ultimately become a multilateral investment court.
The provisions of Section F of Chapter Eight of CETA concern the establishment of a mechanism for the resolution of investment disputes between investors and States (Investor-State Dispute Settlement mechanism will be referred to hereinafter as ‘ISDS mechanism’). To this regard, the creation of a Tribunal and Appellate Tribunal upon entry into force of CETA – and in the longer term the creation of a multilateral investment court – led to a strong opposition by the Wallonia regional parliament of Belgium. In particular, Wallonia parliament threatened to veto Belgium’s signature to CETA agreement. The Belgian government agreed to request an Opinion from the Court concerning the compatibility of the ISDS mechanism with the autonomy of the EU legal order, the principle of equal treatment, the requirement of effectiveness and the right of access to an independent tribunal. This paper will examine and focus on the issue of compatibility with the autonomy of EU law.
2. The developments of autonomy of EU law in light of creation judicial system
The concern over preserving the autonomy of the EU legal order where treaties concluded by the Union provide for the creation of a court responsible for the interpretation of its provisions is not a novel phenomenon. According to the CJEU, agreements entered by the Union providing for the creation of a court whose decisions are binding on the European Union must safeguard the essential character of the powers of the EU institutions and have no adverse effect on the autonomy of the EU legal order. This autonomy stems from the essential characteristics of the European Union, such as the general principles of EU law and the conferral and division of powers, and it resides in the constitutional framework provided for in the Treaties. The judicial system established for in the Treaties, characterized by the exclusive jurisdiction of the CJEU to give definitive interpretations of EU law, guarantees consistent and uniform interpretation and is essential for preserving the characteristics and autonomy of the EU legal order.
The Court established a notably high threshold concerning the compatibility between the creation of judicial mechanisms and the autonomy of EU law, to the extent that the former may not affect any dimension of the latter, even in a hypothetical situation. Based on the CJEU’s jurisprudence, it can be extracted that the EU law primarily requires international agreements to ensure firstly, the preservation of the essential character of the EU and its law and secondly, the uniformity of interpretation of EU law.
As to the need to ensure the preservation of EU’s essential character, the CJEU must maintain its exclusive jurisdiction on the interpretation of EU law and in defining the allocation of competences between the EU and the Member States. For example, in the establishment of the European Economic Area (EEA) Court, the CJEU was of the opinion that the possible power of the EEA court to interpret the term “contracting parties” envisaged by the EEA agreement might have had the equivalent effect to the determination of the respective power between the EU and its Member States. The same notion was affirmed in the Mox Plant case where Ireland initiated dispute settlement on maritime pollution against the United Kingdom under United Nation Convention on the Law of the Sea, despite the fact that EU law covers this topic. The CJEU held that Ireland failed to comply with the autonomy of EU law in respect to CJEU exclusive jurisdiction under Article 344 TFEU.
In addition to the CJEU’s exclusive jurisdiction to interpret EU law, the Court also provides a strong emphasis on the preliminary reference system which cannot be altered from both the referrer and referee perspective. For instance, the CJEU found that the establishment of the European and Community Patent Court system deprived national courts’ jurisdiction to adjudicate on a patent case and a right to preliminary reference, despite the possible request from the Patent Court to the CJEU to decide on the EU law matter. The issue of preliminary reference system was also raised in the context of Protocol 16 to the European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR). The advisory opinions, similar to preliminary reference, might have been requested by national courts to the European Court of Human Rights (ECtHR). The CJEU held that such mechanism adversely affected the keystone cooperation between the national courts and the CJEU.
Despite the high threshold, the CJEU reiterated that the creation of a judicial mechanism through an international agreement is in principle compatible with EU law, as long as the international agreement provides safeguards to the essential character of EU’s division of power, and has no adverse effect on EU’s legal order. An example case which succeed on the high threshold is the European Common Aviation Area (ECAA). The CJEU held that the judicial supervision system for ECAA does not deprive national court’s jurisdiction and preliminary reference system. is compatible with the autonomy of EU law.
3. Opinion 1/17
a. The Court’s reasoning on the compatibility of the envisaged ISDS mechanism with the autonomy of the EU legal order
Considering that the ISDS mechanism provided in CETA stands outside the EU judicial system, the Court reasons that it cannot have the power to: (i) interpret or apply provisions of EU law; (ii) make awards that might have the effect of preventing the EU institutions from operating in accordance with the EU’s constitutional framework.
Regarding the first requirement, initially the Court analyses Article 8.31 CETA. The CJEU concluded that CETA Tribunal only has jurisdiction to interpret CETA provisions in accordance with rules and principles of international law, and has no powers to determine the legality of a measure under the domestic law of a Party. Moreover, the Tribunal may only consider domestic law as a matter of fact, it must follow the prevailing interpretation given to the domestic law by the courts of that Party and any meaning given by the Tribunal will not bound EU’s courts and authorities. Additionally, CETA Appellate Tribunal power limits its scope of interpretation to the provisions of CETA and rules and principles of international law. Following, under Article 8.21 CETA, the fact that the Tribunal will not have the power to determine the respondent to a dispute safeguards that the division of powers between the Union and its Members States can only be ruled by the CJEU. It is consistent with this background that there is no prior involvement of the CJEU under the preliminary reference procedure, nor the possibility of re-examination by Member States’ national courts and the CJEU, nor the possibility to bring during or upon the conclusion of the procedure before CETA Tribunals, the same dispute before a national court or before the CJEU.
Concerning the second requirement, the CJEU concluded that the CETA provides enough safeguards to ensure that the decisions by the Tribunal have no effect on the operation of the EU institutions in accordance with EU constitutional framework. Firstly, the Tribunal may not annul or require that the domestic law of the Party concerned should be rendered compatible with CETA, nor it may impose a penalty on the respondent Party. Secondly, the Court recognizes that if the Union had to amend or withdraw legislation to avoid being repeatedly compelled to pay damages to investors, EU’s autonomy would be affected. However, the Court finds that throughout the agreement the scope of provisions on investment protection limits the jurisdiction of the Tribunal, so that it cannot call into question the choices democratically made within a Party, relating to, inter alia, the level of protection of public order or public safety, the protection of public morals, the protection of health and life of humans and animals, the preservation of food safety, protection of plants and the environment, welfare at work, product safety, consumer protection or fundamental rights.
For the reasons aforementioned, the CJEU concluded that the ISDS mechanism in the CETA is compatible with the autonomy of the EU legal order.
b. Why was this Opinion necessary?
The need for the decision adopted by the Court stems from the change of paradigm on the global trade scene. As Advocate General Bot indicated in his Opinion, CETA is a ‘new generation’ type of free trade agreement.
But what makes CETA a ‘new generation’ free trade agreement and why was the decision the ECJ ruled upon at the beginning of 2019 so necessary?
First of all, CETA is very complex – it does not only regulate the investments per se but goes beyond the scope of the World Trade Organisation (hereinafter WTO) agreements and regulates adjacent inter-twined trade areas, such as environment, labour or sustainable development- While in the present times the importance of these areas cannot be doubted, there is also another equally important matter that CETA agreement incorporated. That is, a completely new, unseen before, dispute settlement mechanism for investors, that is not just a regular arbitration system, but shares some of the characteristics of international courts. The importance of this new ISDS mechanism is based on two main reasons.
First, it asserts the EU’s role as a global leader on international trade scene. When it comes to new regulations, the principle of “occupy the field” applies. That means that the trend adopted by the first regulator has good chances that, in the future, will become the general rule. We have seen this with Napoleon’s Civil code, that so many jurisdictions at that time followed, or more recently with the EU’s data protection act, which is a field that U.S. now scrambles to regulate. Thus, it can be said that to a certain degree, the “first-come, first-served” rule is applicable in the international struggle of regulators, due to the fact that the first one will have the upper hand in imposing his views internationally, as more will be inclined thereafter to follow the framework of a mechanism that has already been implemented with success.
Secondly, the Court ruled in Opinion 1/17 that the ISDS mechanism envisaged by CETA, which allows for the CETA Tribunals to rule on issues that may form the subject matter of the autonomous legal order, ‘[…] did not adversely affect the autonomy of the EU legal order’. The importance of this ruling is obvious. As we have stated before, this ruling is manifestly opposite to the “sealed” type of approach towards EU’s autonomy, that the Court used in Opinion 1/09 regarding EU’s patent court system, in Opinion 2/13 with respect to the accession of the EU to the ECHR or the Achmea judgment, in which the Court made clear that matters falling within the scope of EU law are exclusively handled by EU’s judicature.
So what made the Court change its mind, besides the safeguards and other specially designed legal artifices introduced by the EU Commission in order to make CETA dispute settlement mechanism less bitter for the CJEU. Answering this question brings us to the topic of this chapter, and it is to a certain degree more related to politics, than to the legal aspects of CETA’s ISDS mechanism. CETA dispute settlement framework has already been introduced by the EU to another free trade agreement, the one signed with Singapore, and will be used as a model for EU’s future agreements. A finding that CETA’s ISDS mechanism could adversely affect EU’s legal order would have undermined EU’s objective of creating an investment court model that could legitimately be used by the EU, as well as other trade partners in the future. As the EU Commissioner for Trade, Cecilia Malmström, said ‘[…] Today’s Opinion not only shows that it (i.e. ISDS mechanism) is legally sound, but also reinforces the EU’s leadership role in the ongoing wider discussions to reform the multilateral investment dispute settlement system’.
Thus, the need for Opinion 1/17 was generated by the demands of a more flexible approach that would confer the EU Commission a lever in negotiating the new generation type of trade deals, that are destined to integrate even further the free markets around the world, as well as the need for the EU to project in the eyes of other large markets the picture of a strong and reliable economic partner.
c. What future problems may arise?
Is the Achmea judgement abandoned?
A year before Opinion 1/17 was decided, the CJEU held in Achmea that the Bilateral Investment Treaty (BIT) between the Netherlands and Slovakia which entered into force prior to Slovakia’s accession to the EU, is incompatible with the EU legal order. The BIT between the two EU Member States granted jurisdiction to arbitral tribunals. Even though the arbitral tribunals’ primary function is to assess the existence of an infringement under the BIT, the arbitral tribunal may nevertheless be required to interpret EU law in order to rule on such infringement. Moreover, the arbitral tribunal was not considered as a court or tribunal which can request preliminary reference under Article 267 TFEU. Therefore, the EU essential characters and uniform interpretation of the EU legal order would be adversely affected.
It is arguable that the CETA’s ISDS is in a comparable situation with the arbitral dispute mechanism contained in the BIT on the basis that both agreements provide external judicial mechanism to adjudicate disputes arising from investment guaranteed by international agreement. Thus, one could argue that the approach and analysis on autonomy of EU law under the Achmea judgment should have been transposed in the CETA opinion.
It is surprising that AG Bot and the CJEU did not carry out the previous approach and analysis when assessing the CETA. In particular, AG Bot distinguished between the judgment in Achmea and the CETA, on the basis that the Achmea analysis was partly based on the principle of mutual trust which did not exist in the CETA context. Furthermore, there is a nature of reciprocity in the context of external relationship for the CETA. For these reasons, the AG concludes that Achmea judgment cannot be directly transposed to CETA. This similar approach was also further adopted by the CJEU. The CJEU Opinion, however, fails to shed light on the interaction between the principle of mutual trust, the reciprocity nature and the autonomy of the EU law and how this interplay affects the analysis of compatibility in creation of external judicial system.
It appears that there are now two different parallel standards when assessing the autonomy of EU law. Agreements which recall the principle of mutual trust for instance, concluded between EU Member States, will be subject to a more rigorous scrutiny on compatibility with the autonomy of EU law in accordance with the Achmea judgement. In contrast, an international agreement which has a reciprocal nature and does not recall the principle of mutual trust, will be subject to a lower threshold as appears in the context of CETA.
What happens in the case of a lack of interpretation of an EU law provision?
The CJEU stated in Opinion 2/13 that ‘any action by the bodies given decision-making powers (…) as provided for in the agreement envisaged, must not have the effect of binding the EU and its institutions, in the exercise of their internal powers, to a particular interpretation of the rules of EU law’. Under some circumstances, CETA Tribunal may be called upon to undertake some interpretation of EU law beyond a consideration of the law as a matter of fact, for instance where it is required to define the scope of the conduct which led to the dispute. The fact that CETA Tribunal is bound by interpretations given by domestic courts on domestic legislation, becomes an issue where no interpretation of EU law has been provided by the CJEU. It appears that whereas AG Bot recognises the possibility of an interpretation, the Court ignores such an issue.
AG Bot asserts that, since the decision rendered by CETA Tribunal will be binding between the disputing Parties in respect of that case and the interpretation contained on this decision can thereafter be dismissed by the CJEU, the powers of the Tribunal do not affect the exclusive jurisdiction of the Court. However, such an interpretation could be binding on EU’s institutions as respondent parties. The Court fails to discuss this issue in Opinion 1/17, where it states that the lack of CETA provisions allowing the Tribunal and Appellate Tribunal to make references for a preliminary ruling is consistent, since these bodies’ power is limited to interpret CETA provisions. There is a lack of clarity of what would happen if the Tribunal was faced with an issue of EU law which has not yet been interpreted by the CJEU. If the Tribunal was to interpret EU law, it would be an act contrary to the autonomy of the EU legal order, since the Treaties reserve the interpretative power of its provisions to the CJEU. The second option available would be the possibility of making a reference for a preliminary ruling, which would entail the modification of Article 267 TFEU to allow tribunals which are not part of a Member State judicial system to make such request. Finally, the CJEU could provide an interpretation of the provision before the review of the award by CETA’s Appellate Tribunal.
The boundaries allowed by the CJEU when it comes to the extent CETA Tribunals will be allowed to interpret are unclear. If the Court adopts a more flexible approach such as the one suggested by AG Bot, CETA provides enough safeguards to limit these situations. However, if the position adopted by the Court strictly forbids any sort of interpretation of EU law, it is time to think of a solution other than rejecting the setting of investment tribunals.
To what extent interpretation of EU law as a matter of fact will be allowed?
One of the prime factors that the CJEU came to conclusion on compatibility of the CETA with the EU law is the fact that the CETA Tribunals may only interpret the EU law as a matter of fact, pursuant to Article 8.31. This innovative concept initiated by the EU Commission raises a question on what is the precise meaning of domestic law as a matter of fact.
Advocate General Bot even went further to state that the contracting governments may rely on justifications under domestic law and EU law to justify its obligation under the CETA before the tribunal, and the tribunal should be authorized to review this issue. This broad interpretation may result in application of EU law by the Tribunal, rather than treat EU law as a matter of fact. The CJEU, however, does not address this vital issue in Opinion 1/17.
Despite the absence of definition, the precise meaning of law as a matter of fact must be established for legal certainty and strike a balance between the effectiveness of the CETA tribunal and autonomy of EU law. The broader the definition of law as a matter of fact is, the more it can affect the autonomy of EU law. In contrast, a narrow meaning can result in less effectiveness of the tribunal as a dispute settlement forum.
Enforcement and the autonomy principle
As stated earlier, one of the premises of preserving the principle of autonomy, is that decision making powers of international organisms ‘must not have the effect of binding the EU and its institutions, in the exercise of their internal powers, to a particular interpretation of EU law’. The CJEU dispelled the argument that the autonomy principle might be breached when CETA Tribunals are interpreting EU law as a matter of fact. To reach this conclusion, the CJEU took into consideration the following factors. First, it held that CETA Tribunals are compelled to follow the prevailing interpretation given to domestic law by national courts according to Art. 8.31 CETA, secondly it argued that the interpretation given by the CETA Tribunals to national law would not bind the domestic courts and authorities, and in any event, it held that CETA Tribunals could only assess EU law as a matter of fact, and does not have the power to make a de jure interpretation. All of these arguments have been addressed in the previous part of this writing. However, what would happen if CETA Tribunals were to issue an award that is against the prevailing interpretation of EU law, or if there is no interpretation at all with regard to that particular subject-matter? What if, interpreted as a matter of fact, EU law would be completely disregarded and CETA award would be final?
Such a situation can occur, and CETA provides little indication, except for the fact that CETA Tribunals’ awards will not bind national courts, and therefore will not result in legal precedents. However, the Member States or the EU would be bound by an award that potentially is contrary to EU law, and heavy fines will have to be paid. In respect to this issue, we could distinguish three possible scenarios.
First, the awards issued by CETA Tribunals could be refused enforcement on grounds of public policy, according to Art. V (2) b) of the New York Convention and the interpretation given by the Court in Eco Swiss case, where it endorsed the power of national courts to refuse enforcement on public policy grounds that fall within the scope of EU law.
Secondly however, if the award is made by CETA Tribunals according to Art. 8.23.2 a) of CETA under the Convention on the settlement of investment disputes between States and nationals of other States (hereinafter ICSID Convention) the above mentioned solution could not apply, as the awards made under the ICSID Convention are enforceable according to the automatic mechanism envisaged by Art. 53 of ICSID Convention, without the possibility of national courts to interfere with the enforcement procedure of an award.
Thirdly, there might be cases where domestic courts of different Member States have different solutions in respect to the enforcement of a CETA award, especially in cases where there is no previous interpretation by the CJEU in respect to a particular subject matter of EU law. Such an outcome would affect the uniform application of EU law as well as the mutual trust between Member State courts, as some courts might give precedence to their CETA obligations, while other courts might refuse enforcement on grounds of public policy.
Opinion 1/17 of the CJEU represents a linchpin of EU’s future trade arrangements. It boosts the possibilities of EU to pursue further international trade deals around the world, without the threat that such engagements might end up being thrown away by the CJEU, on grounds of undermining the autonomy of EU law. The moment is particularly important, as the U.S. seems to adopt a protectionist approach, and a clear leadership for open and free markets is more important now than ever. The EU is ready to undertake such a role, and moreover, thanks to the interpretation given by the CJEU in Opinion 1/17, now has the necessary means to do it.
The interpretation given by the CJEU in Opinion 1/17 gives effect to its previous assertion held in Achmea judgment, ‘that an international agreement providing for the establishment of a court responsible for the interpretation of its provisions and whose decisions are binding on the institutions, including on the CJEU, is not in principle incompatible with EU law’.
However, as we have expressed before, the rationale behind the Court’s Opinion, which followed AG Bot’s Opinion, can easily be subjected to criticism. Starting from the fact that Achmea’s test was distorted, that CETA Tribunals` capacity to interpret EU law as a matter of fact, still can be viewed as being an interpretation of law or that domestic courts may not pursue a uniform approach when enforcing CETA awards.
Thus, we can infer that the CJEU`s Opinion was politically influenced to a certain degree, in order to find a solution that would render viable the new ISDS mechanism introduced in CETA. The advantages conferred by the possibility to rely on a “safe harbour” type of investment dispute settlement mechanism are evident, as the Commission will be able to further rely on CETA`s blueprints in future trade negotiations involving the European Union. However, we are of the opinion that the CJEU should not disregard the importance of the EU principles in the contest of regulating trade, as it risks ceding away some of EU`s core prerogatives which derive from its special nature of international law, and which can be forever lost.
– Consolidated version of the Treaty on European Union OJ C 326/01
– Consolidated version of the Treaty on the Functioning of the European Union OJ C 326/47
– Charter of Fundamental Rights of the European Union OJ C 364/1
– Negotiating directives for a Convention establishing a multilateral court for the settlement of investment disputes, 12981/17 ADD 1 DCL 1 (2018)
– Recommendation for a Council Decision authorizing the opening of negotiations for a Convention establishing a multilateral court for the settlement of investment disputes, COM/2017/0493 final (2017)
– Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), OJ 2016 L 119/1
– Bilateral Investment Treaty Between the Netherlands and Slovakia signed on 29 April 1991.
– Comprehensive Economic and Trade Agreement between Canada, of the one part, and the European Union and its Member States, of the other part, OJ L 11/23 (2017)
– Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 397
– Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), 330 UNTS 38; 21 UST 2517; 7 ILM 1046 (1968)
– Protocol No. 16 to the Convention on the Protection of Human Rights and Fundamental Freedoms, 214 Council of Europe Treaty Series
– Washington Convention 17 UST 1270, TIAS 6090, 575 UNTS 159 (1965)
2. Case law
Judgments of the CJEU
– Case C-284/16 Slowakische Republik v Achmea BV, ECLI:EU:C:2018:158
– Case C-459/03 Commission of the European Communities v Ireland, ECLI:EU:C:2006:345
– Case C-126/97 Eco Swiss China Time Ltd v Benetton International NV, ECLI:EU:C:1999:269
Opinions of the CJEU
– Opinion 1/17 of the Court, ECLI:EU:C:2019:341
– Opinion 2/15 of the Court, ECLI:EU:C:2017:376
– Opinion 2/13 of the Court, ECLI:EU:C:2014:2454
– Opinion 1/09 of the Court, ECLI:EU:C:2011:123
– Opinion 1/00 of the Court, ECLI:EU:C:2002:231
– Opinion 1/91 of the Court, ECLI:EU:C:1991:490
Opinions of the Advocates General
Opinion of Advocate General Bot 1/17, ECLI:EU:C:2019:72
– A. Duarte, Autonomy and Opinion 1/17 – a matter of coherence?, available here, last visited (14-06-2019)
– Tatham, The Rise of Regional Influence in the EU – From Soft Policy Lobbying to Hard Vetoing, 56 Journal of Common Market Studies (2018)
– Pukan, Implications of the CJEU Achmea Decision for CETA’s Investment Court System, University of Amsterdam (Master thesis 2018)
– A. Wessel and S. Blockmans, Between Autonomy and Dependence: The EU Legal Order Under the Influence of International Organisation, T.M.C. Asser Press/Springer (2013)
– Gáspár-Szilágyi, AG Bot in Opinion 1/17. The Autonomy of the EU Legal Order v. The Reasons Why the CETA ICS Might be Needed, available here) last visited (14-06-2019)
European Commission – Press release, available here, last visited (04-06-2019)
 Treaty on the Functioning of the European Union (consolidated version), OJ 2016 C 202/47.
 Opinion 2/15 of the Court, ECLI:EU:C:2017:376.
 European Commission, Recommendation for a Council Decision authorizing the opening of negotiations for a Convention establishing a multilateral court for the settlement of investment disputes, COM/2017/0493 final (2017).
 Comprehensive Economic and Trade Agreement (CETA) between Canada, of the one part, and the European Union and its Member States, of the other part, OJ L 11/23 (2017).
 Council of the European Union, Negotiating directives for a Convention establishing a multilateral court for the settlement of investment disputes, 12981/17 ADD 1 DCL 1 (2018).
 M. Tatham, The Rise of Regional Influence in the EU – From Soft Policy Lobbying to Hard Vetoing, 56 Journal of Common Market Studies (2018), at 672.
 Opinion 1/17 of the Court, ECLI:EU:C:2019:341.
 Ibid., paras. 106-107.
 Ibid., paras. 108-110.
 Article 19, Treaty on European Union (consolidated version), OJ 2016 C 202/13.
 Supra note 7, para. 111.
 S. Gáspár-Szilágyi, AG Bot in Opinion 1/17. The Autonomy of the EU Legal Order v. The Reasons Why the CETA ICS Might be Needed, (https://europeanlawblog.eu/2019/02/06/ag-bot-in-opinion-1-17-the-autonomy-of-the-eu-legal-order-v-the-reasons-why-the-ceta-ics-might-be-needed/) last visited (14-06-2019).
 R.A. Wessel and S. Blockmans, Between Autonomy and Dependence: The EU Legal Order Under the Influence of International Organisation, T.M.C. Asser Press/Springer (2013), at 1.
 F.A. Duarte, Autonomy and Opinion 1/17 – a matter of coherence?, (https://europeanlawblog.eu/2019/05/31/autonomy-and-opinion-1-17-a-matter-of-coherence/), last visited (14-06-2019).
 Opinion 1/91 of the Court, ECLI:EU:C:1991:490, paras 34-35.
 Case C-459/03 Commission of the European Communities v Ireland, ECLI:EU:C:2006:345.
 Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 397.
 Supra note 16.
 Opinion 1/09 of the Court, ECLI:EU:C:2011:123, para. 89.
 Ibid, paras. 12 and 81.
 Protocol No. 16 to the Convention on the Protection of Human Rights and Fundamental Freedoms, 214 Council of Europe Treaty Series.
 Opinion 2/13 of the Court, ECLI:EU:C:2014:2454, paras. 196-199.
 Ibid, para. 182.
 Opinion 1/00 of the Court, ECLI:EU:C:2002:231, paras. 21-24.
 Supra note 7, paras. 113-118.
 Supra note 7, paras. 120-122.
 Supra note 7, paras. 130-131.
 Supra note 7, para. 33.
 Supra note 7, para. 132.
 Supra note 7, paras. 134-135.
 Supra note 7, para. 144.
 Supra note 7, paras. 148-150.
 Supra note 7, paras. 152-160.
 Opinion of Advocate General Bot 1/17, ECLI:EU:C:2019:72, para. 2.
 Supra note 4, Chapter 24.
 Supra note 4, Chapter 23.
 Supra note 4, Chapter 22.
 Supra note 7, para. 90.
 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), OJ 2016 L 119/1.
 Supra note 7, paras. 106-161.
 Supra note 7, ECLI:EU:C:2019:341, para. 161.
 Supra note 19.
 Supra note 22.
 Case C-284/16 Slowakische Republik v Achmea BV, ECLI:EU:C:2018:158.
 European Commission – Press release (http://europa.eu/rapid/press-release_IP-19-2334_en.htm) last visited (04-06-2019).
 Supra note 7.
 Supra note 44.
 Bilateral Investment Treaty Between the Netherlands and Slovakia signed on 29 April 1991.
 Supra note 44, paras. 41-43.
 Supra note 44, paras. 43-49.
 Supra note 44, para. 58.
 P. Pukan, Implications of the CJEU Achmea Decision for CETA’s Investment Court System, University of Amsterdam (Master thesis 2018), at 30.
 Supra note 7, paras. 95-106.
 Supra note 7, paras. 95-106.
 Supra note 7, paras. 95-106.
 Supra note 7, paras. 126-129.
 Supra note 22, para. 184.
 Supra note 34, para. 137.
 Article 8.32.3, CETA.
 Supra note 34, 141-143.
 Supra note 7, para. 134.
 Supra note 7, paras 130-136.
 Supra note 14.
 Supra note 34, para. 130.
 Supra note 22, para. 184.
 Supra note 7, para 130-131.
 Supra note 7, para 130-131.
 Supra note 7, para 130-131.
 Supra note 4.
 Supra note 4, Article 8.31.2.
 Supra note 14.
 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), 330 UNTS 38; 21 UST 2517; 7 ILM 1046 (1968).
 Case C-126/97, Eco Swiss China Time Ltd v Benetton International NV, ECLI:EU:C:1999:269, para. 41.
 Supra note 4.
 Washington Convention 17 UST 1270, TIAS 6090, 575 UNTS 159 (1965).
 Supra note 75.
 Supra note 12.
 Supra note 12.
 Supra note 7.
 Supra note 7.
 Supra note 7.
 Supra note 44.
 Supra note 44, para. 57.
 Supra note 7.
 Supra note 7.
 Supra note 7.