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Ceta's dispute settlement mechanism compatibility with EU law confirmed?

On 7 September 2017, Belgium requested the European Court of Justice’s (“CJEU”) opinion concerning  the compatibility with EU law of  the Investment Court System provided for in CETA, the free trade agreement signed between the EU an Canada on 30 October 2016.

CETA’s “Investment Court System” (“ICS”) is a dispute settlement mechanism according to which investment disputes are to be submitted to a permanent and institutionalized court, whose members are appointed in advance by the States, instead of being appointed on a mere ad hoc basis.

The Belgian government has sought the CJEU’s opinion on the compatibility of CETA’s ICS with EU law, and in particular with :

  • the exclusive jurisdiction of the CJEU over the definitive interpretation of EU law;
  • the general principle of equal treatment and the requirement that EU law is effective and;
  • the right of access to an independent and impartial tribunal.

 On 29 January 2019, Advocate General Bot has rendered an opinion stating that  “the mechanism for the settlement of disputes is compatible with the EU Treaty, the FEU Treaty and the Charter of Fundamental Rights of the European Union”.

Although the Advocate General’s opinion is not binding on the Court of Justice, the Court often follows the advice of its Advocate General. 

The Full Court is expected to deliver its opinion later this year.

We will keep you up-to-date of any further development in this matter.

Please do not hesitate to contact us should you have any questions.

Press release :  https://curia.europa.eu/jcms/upload/docs/application/pdf/2019-01/cp190006en.pdf

Full text; http://curia.europa.eu/juris/document/document.jsf;jsessionid=F7A6E4C25216343E56D7D391EEC00BCC?text=&docid=210244&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=10977907

Philip PEERENS ([email protected]), Partner

And

Sébastien ELST (sel@koan.law), Associate