The Perception of the EU Legal Order in International Law: An In- and Outside View

In this contribution, the terms “EU”/“EU law” are also used when technically referring to the “European Community” or to “European Community law”, except when quoting. “CJEU” is also used when referring to the “ECJ” (in its pre-Lisbon set-up).

Cf. Klabbers (2015), pp. 52–71.

Odermatt (2016).

Odermatt (2016), p. 5.

De Witte (2014a), p. 33.

De Witte (2010), p. 150.

Parish (2012), p. 142.

Eckes (2013), p. 86.

Simma and Pulkowski (2006), p. 516. Similarly, also Interpretation of the Agreement of 25 March 1951 Between the WHO and Egypt, 1980 ICJ 73, Advisory Opinion (20 December 1980), para. 37: “[T]here is nothing in the character of international organizations to justify their being considered as some form of ‘super-State’ […]. International organizations are subjects of international law and, as such, are bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties.”

The EU’s strive for greater autonomy primarily rests on two main features of EU law: the primacy of EU law and the exclusive jurisdiction of the CJEU. As shown, these also become apparent in the CJEU’s case-law.

For further reference see, inter alia, Simma and Pulkowski (2006).

See Curtin and Dekker (2011), p. 163 et seqq.; Ziegler (2013), p. 3.

Bengoetxea (2011), p. 449; Klabbers (2016), p. 3 et seq.; De Witte (2014b), p. 174; Wessel (2013), p. 134.

In this regard see particularly Sect. 3 and the portrayal of the EU legal order by international judicial bodies.

De Witte (2014b), p. 178 terms this the “treaty path towards European integration”.

Federico Mancini (1998), p. 31 (footnotes omitted).

ILC, Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law—Report of the Study Group of the International Law Commission, 13 April 2006, UN Doc. A/CN.4/L.682, para. 218.

ILC, Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law—Report of the Study Group of the International Law Commission, 13 April 2006, UN Doc. A/CN.4/L.682, para. 219.

ILC, Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law—Report of the Study Group of the International Law Commission, 13 April 2006, UN Doc. A/CN.4/L.682, para. 221.

Section 3 will provide examples from an international law perspective.

Art. 1 TEU reads: “By the Treaty, the HIGH CONTRACTING PARTIES establishing among themselves a EUROPEAN UNION, hereinafter called ‘the Union’, on which the Member States confer competences to attain objectives they have in common.” It does not clarify whether the EU is an international organization or some other legal construct. Art. 47 TEU accords the EU legal personality (“The Union shall have legal personality”). On a similar line of argumentation see Wessel (2013), p. 132.

See also De Witte (2014b), pp. 183–185; Wessel (2013), p. 135 et seqq.; von Bogdandy (2008), p. 399.

On the normative quality of the EU’s secondary law being the decisive “breaking point” from ordinary forms of international organizations see Schütze (2012), pp. 15 and 61 et seq.

See in more detail also De Witte (2011).

Hartley (1996), p. 109.

Weiler (1997), p. 97. However, though EU law in part enjoys direct effect, this ultimately stems from treaty obligations entered into by the contracting parties of the EU treaty framework. De Witte (2014b), p. 187. In contrast, at the international level there is no specific method mandated how to give international law effect in national law and it is up to each and every state to ensure compliance of their national system with their international obligations. Crawford (2012), p. 48 et seq.; Greco-Bulgarian Communities, Advisory Opinion, 1930 PCIJ (ser. B) No. 17 (31 July 1930), para. 81.

Though often a question of semantics, supremacy is understood as the further-reaching conceptual tool to describe the hierarchical relationship stemming from the EU legal order whereas primacy is a rule of conflict resolution applied in favour in the EU’s legal system. See in more detail Avbelj (2011).

Lavranos (2006a), p. 232. This stems from Art. 218(11) TFEU: “A Member State, the European Parliament, the Council or the Commission may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the Treaties. Where the opinion of the Court is adverse, the agreement envisaged may not enter into force unless it is amended or the Treaties are revised.”

See also Sect. 4.1 in more detail.

Cf. Klabbers (2009), pp. 118, 122. See, e.g., CJEU, case 10/61, Commission v Italy, ECLI:EU:C:1962:2, p. 10: “In fact, in matters governed by the EEC Treaty, that Treaty takes precedence over agreements concluded between Member States before its entry into force […].” This approach shifts even clearer in favour of hierarchically superior EU law where an international agreement between two states is concerned which later both are EU member states. In such instances, Article 351 TFEU does not apply and the CJEU has held that the multilateral or bilateral agreement in question cannot be invoked in their inter se relations. Klabbers (2009), p. 125 et seqq., with references to case-law. Note, however, that this is an obligation of EU law—not international law—and that therefore international dispute settlement bodies located outside the EU framework are free to arrive at a different conclusion. See particularly the Sect. 3.4 on investment law in this context.

A disconnection clause often provides that the treaty will only apply to relations between non-EU members or between an EU member and a non-EU member, but not between EU members inter se. In such a case, EU law will be applicable. See in more detail Klabbers (2009), pp. 219–223, also addressing the criticisms linked to the disconnection clause, particularly the risk of further fragmenting the international legal order.

Typically, this clause specifies that, in relations with treaty partners, the treaty shall be applied for the European Union, under the conditions set out in EU law. As Klabbers observes, “[t]hat is a fairly innocuous-sounding statement, but still manages to disconnect Community law from the workings of such treaty.” Klabbers (2009), p. 224.

Article 19(1) TEU defines the CJEU’s role as the EU’s judiciary arm, stipulating that “[t]he Court of Justice of the European Union […] shall ensure that in the interpretation and application of the Treaties the law is observed.”

Art. 259 TFEU: “A Member State which considers that another Member State has failed to fulfil an obligation under the Treaties may bring the matter before the Court of Justice of the European Union.”

Art. 344 TFEU: “Member States undertake not to submit a dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided for therein.”

Art. 267 TFEU: “The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union; Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court. […]”.

Cf. Lock (2015), p. 75 et seq.

In Haegeman, the CJEU explained that agreements become integral parts of EU law, CJEU, case 181/73, Haegeman v Belgium, ECLI:EU:C:1974:41, para. 5. The extent of its exclusive jurisdiction was moreover clarified in the MOX Plant case which equated the scope of jurisdiction of Art. 344 TFEU with the scope under Article 267 TFEU, holding that the provisions of the international agreement which had become an integral part of the Community legal order gave rise to “a dispute concerning the interpretation or application of the EC Treaty, within the terms of [Article 344 TFEU].” CJEU, case C-459/03, Commission v Ireland (MOX Plant), ECLI:EU:C:2006:345, para. 126 et seq.

On the aspect of “Community interest” see CJEU, case C-53/96, Hermès International v FHT Marketing Choice, ECLI:EU:C:1998:292, para. 32. More weight was placed on the “duty of close cooperation” in CJEU, case C-300/98, Dior and others, ECLI:EU:C:2000:688, para. 36.

Lock (2015), p. 102.

Regarding the internal aspect of autonomy see CJEU, case 6/64, Costa v E.N.E.L., ECLI:EU:C:1964:66, where the CJEU speaks about the EU legal order as “an independent source of law”; Externally, the autonomous character of the EU legal order can be traced back to CJEU, opinion 1/91, European Economic Area, ECLI:EU:C:1991:490, para. 40.

De Witte (2014b), p. 179.

See, inter alia, CJEU, opinion 2/13, EU Accession to the ECHR, ECLI:EU:C:2014:2454; Lock (2015), p. 159.

See in regard Sect. 4.

Odermatt (2016). Note that the aspect of institutional autonomy also applies to other international organizations but it has been accorded particular importance by the CJEU on a continuous basis. Collins and White (2011). See particularly the case-law following CJEU, case 26/62, van Gend en Loos, ECLI:EU:C:1963:1 and CJEU, case 6/64, Costa v E.N.E.L., ECLI:EU:C:1964:66; CJEU, case 28/67, Molkerei Zentrale Westfalen-Lippe v Hauptzollamt Paderborn, ECLI:EU:C:1968:17. See also below Sect. 2.2.2.

Article 17(1) sixth sentence TEU; as confirmed by the CJEU in case C-73/14, Council v European Commission, ECLI:EU:C:2015:663, this is also based on Article 335 TFEU, which is understood as an “expression of a general principle that the European Union has legal capacity and is to be represented, to that end, by the Commission” (para. 58). Note, however, that the Commission’s authority as regards external representation must be distinguished from the internal decision-making process on which position to adopt. For example, in said judgment, the Council of the European Union initiated proceedings against the Commission regarding its submission of a written statement to the International Tribunal for the Law of the Sea (ITLOS). The Council alleged an infringement of the principle of conferral of powers, the principle of institutional balance (Article 13(2) TEU), and of the principle of sincere cooperation, both as the position of the European Union should have been predetermined by a “decision […] establishing the positions to be adopted on the Union’s behalf in a body set up by an agreement” as adopted by the Council (Article 218(9) TFEU) and as the Council was responsible to “carry out policy-making and coordinating functions” (Article 16(1) TEU). The CJEU held in this regard that Article 218(9) TFEU did not find application in this context as it concerned positions to be taken in a body set up by an agreement and not before such a body (paras. 63–67). Additionally, as the statement did not formulate a policy in relation to the subject matter but presented rather a set of legal observations (para. 71), also Article 16(1) TEU was not relevant in this instance (para. 73).

In fact, there are different possibilities for the EU to act before an international or foreign dispute settlement mechanism, ranging from being the sole party (This is particularly the case in the WTO, see https://​www.​wto.​org/​english/​tratop_​e/​dispu_​e/​dispu_​by_​country_​e.​htm (last accessed 1 March 2017), but also occurs in other bodies, see, e.g., Case Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile v European Union), ITLOS Case No. 7 (withdrawn and removed from the list of cases through Order 2009/1 of 16 December 2009)), to acting alongside one or some of its member states (at present, this is only the case in isolated instances, e.g. Panel Report, European Communities—Customs Classification of Certain Computer Equipment, WT/DS62/R, WT/DS67/R, WT/DS68/R, 5 February 1998; a co-respondent mechanism was, however, foreseen in the Draft Agreement on the EU’s accession to the ECHR), to filing amicus curiae submissions or intervening in some other way (for example, the European Commission filed an amicus curiae submission in foreign jurisdictions (Kiobel v Royal Dutch Petroleum, Supreme Court of the United States of America, 13 June 2012), or in front of international dispute settlement mechanisms. It has done so, e.g., before the ECtHR as a third party (Article 36(2) ECHR, 4 November 1950, 213 UNTS 222) in Bosphorus (No. 45036/98) or Senator Lines (No. 56672/00), or as a non-disputing party in ICSID proceedings (Rule 37(2) ICSID), e.g., in Electrabel (ICSID Case No. ARB/07/19) or Micula (ICSID Case No. ARB/05/20)). The EU may also delegate the representation to one of its member states in case of a dispute arising in an international organization where it does not have any formal status. See in this regard, e.g., the Statement of Ireland on Behalf of the European Union (30 January 2004) in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004 ICJ 136, Advisory Opinion (9 July 2004).

The common commercial policy constitutes one of the exclusive competences of the EU and “was originally the core of the EU’s external relations powers”. Kuijper et al. (2015), p. 295; Article 207 TFEU.

For example, the EU has appeared in 97 cases as complainant, in 82 as respondent and in 158 as third party. See https://​www.​wto.​org/​english/​tratop_​e/​dispu_​e/​dispu_​by_​country_​e.​htm (last accessed 1 March 2017). See also Hoffmeister (2012), pp. 88–90.

See, inter alia, Delgado Casteleiro (2016), p. 178.

This is particularly evident when viewing the manner how the European Commission has addressed the institutional nature of the CJEU. In US-Zeroing Methodology, when examining the principle of consistency and predictability of jurisprudence, the Commission addressed both, national and international legal systems, pointing out also the “sui generis character” of the EU’s judicial system. Panel Report, United States—Continued Existence and Application of Zeroing Methodology, WT/DS350/R, 1 October 2008, para. 72, at fn. 67. In light thereof, it defined the CJEU as “a hybrid court—part constitutional court, part general national court of last instance” (para. 72). Its third party submission in US-Final Anti-Dumping Measures on Stainless Steel from Mexico addressed the same issue, again with a clear distinction between national and international legal systems. Here, the absence of its own jurisdiction among both categories is striking. Panel Report, United States—Final Anti-Dumping Measures on Stainless Steel From Mexico, WT/DS344/R, 20 December 2007, paras. 7.19–7.20.

As dealt with extensively in Sect. 3.4 below, the question of intra-EU BITs is of special concern to the European Commission, and any implementation of an award obtained through proceedings initiated under such BITs would constitute state aid. (cf On 31 January 2014, the European Commission communicated to the Romanian authorities that the implementation or execution of the Micula award would constitute new state aid, see also Commission Decision (EU) 2015/1470 of 30 March 2015 on state aid SA.38617, OJ 2015 L 232/43.)

Micula v Romania, US Court of Appeals (2nd Circ.), Brief for Amicus Curiae the Commission of the European Union in Support of Defendant-Appellant, 4 February 2016, p. 7.

Micula v Romania, US Court of Appeals (2nd Circ.), Brief for Amicus Curiae the Commission of the European Union in Support of Defendant-Appellant, 4 February 2016, p. 11.

Micula v Romania, US Court of Appeals (2nd Circ.), Brief for Amicus Curiae the Commission of the European Union in Support of Defendant-Appellant, 4 February 2016, p. 28.

Article 13(3) Commission draft text Transatlantic Trade and Investment Partnership—investment; Article 8.31(2) Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union.

See, e.g., CJEU, case 6/64, Costa v E.N.E.L., ECLI:EU:C:1964:66: “By contrast with ordinary international treaties, the EEC Treaty has created its own legal system […].” See also CJEU, opinion 2/13, EU Accession to the ECHR, ECLI:EU:C:2014:2454, para. 157; cf. D’Aspremont and Dopagne (2008), p. 374.

CJEU, case 26/62, van Gend en Loos, ECLI:EU:C:1963:1. Note, however, that the qualifier “of international law” was later dropped, see, e.g., CJEU, case 6/64, Costa v E.N.E.L., ECLI:EU:C:1964:66; CJEU, case 28/67, Molkerei Zentrale Westfalen-Lippe v Hauptzollamt Paderborn, ECLI:EU:C:1968:17, p. 152.

Ziegler (2013), p. 2 et seq.

Ziegler (2013), p. 2 et seq.

CJEU, case 294/83, Les Verts v Parliament, ECLI:EU:C:1986:166, para. 23; opinion of AG Maduro to CJEU, case C-402/05 P, Kadi v Council and Commission, ECLI:EU:C:2008:11, para. 21; CJEU, opinion 2/13, EU Accession to the ECHR, ECLI:EU:C:2014:2454, para. 158: “own constitutional framework”.

See, e.g., Krenzler and Landwehr (2011), p. 1006, fn. 10.

CG, case T-315/01, Kadi v Council and Commission, ECLI:EU:T:2005:332, paras. 181–193 and 225–226. In particular, in reference to Articles 27 and 30 of the Vienna Convention on the Law of Treaties (VCLT) as well as Article 307 EC (now Article 351 TFEU) the CFI emphasized that obligations under the Charter of the United Nations (particularly also chapter VII Resolutions by the Security Council) were primary over domestic law, international treaty law and Community law. At the same time, however, the CFI found that while it could not review the Security Council Resolution in light of Community law, it was tasked to do so in light of potential ius cogens violations as ius cogens norms are “understood as a body of higher rules of public international law binding on all subjects of international law, including the bodies of the United Nations”.

See Sect. 4.1 in more detail.

D’Aspremont and Dopagne (2008), p. 375.

CJEU, case C-402/05 P, Kadi v Council and Commission, ECLI:EU:C:2008:461, para. 281 et seq. Referring, inter alia, to its previous MOX Plant judgment. It also states in para. 285 that “the obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the EC Treaty”.

It does so through a primarily monist approach. For example, in Racke the CJEU stated in response to the Commission’s doubts that the international rules referred were to be regarded as forming part of the Community legal order that “the [EU] must respect international law in the exercise of its powers [and that] the rules of customary international law […] form part of the Community legal order”. CJEU, case C-162/96, Racke v Hauptzollamt Mainz, ECLI:EU:C:1998:293, para. 45 et seq. Additionally, the absence in Article 218 TFEU on any particular requirement for the transformation of treaties into the EU legal order provides further indications of the monist system. However, particularly the Kadi judgment has let some speak of strong dualist tendencies emerging in the CJEU’s more recent case-law, e.g., De Búrca (2010), p. 2 et seq. See also in more detail Krenzler and Landwehr (2011), pp. 1008–1015, who also argue that the origins of EU lie in international law, thus indicating monism as the more obvious choice.

Cf. Cremona (2011), p. 267; D’Aspremont and Dopagne (2008), p. 374.

As regards the question to which extent the EU can be subject to international dispute settlement mechanisms as established by international organizations or agreements and which nature is assigned to its legal order in such instances more generally, see Kuijper et al. (2015), p. 721; Van Vooren and Wessel (2014), p. 271.

Cf. Koskenniemi (2007), p. 9.

See respectively Sect. 3 below.

Similarly Lavranos (2006b), p. 479.

This particularly, as demonstrated in Sects. 3 and 4, in light of the considerable deference exercised by other international courts and tribunals in their interaction with the EU legal order.

See in this context also Shany’s study on the effectiveness of international courts, listing as generic goals of international courts norm support, resolving international disputes and problems, regime support, and legitimizing public authority. Shany (2014), pp. 37–46. As is explained in a later chapter of the book, the CJEU also possesses two idiosyncratic goals, namely the constitutionalization of EU law and the advancement of market integration (p. 280).

For example, despite the EU treaties remaining silent on whether the EU can become member to other international organizations, the EU has become a member to organisations such as the WTO. Van Vooren and Wessel (2014), p. 249. Implicitly this has been deduced, inter alia, from Article 211 TFEU (“Within their respective spheres of competence, the Union and the Member States shall cooperate with third countries and with the competent international organisations.”) and the provisions providing the EU with the competence to conclude international agreements (Articles 216, 217 TFEU).

See generally Hoffmeister (2012).

As mentioned, Article 344 TFEU prohibits member states to submit a dispute to international litigation on matters that fall within the EU’s (shared or exclusive) competence. This has generated quite some debate within the scholarly discussion on the proliferation of international courts and tribunals and a possible hierarchy among these bodies. See, e.g., Lavranos (2014) and Bennouna (2012).

For example, the EU is a contracting party of the Law of the Sea Convention (LOSC) (Council Decision of 23 March 1998 concerning the conclusion by the European Community of the United Nations Convention of 10 December 1982 on the Law of the Sea and the Agreement of 28 July 1994 relating to the implementation of Part XI thereof, OJ 1998 L 179/1), the WTO Agreement (Marrakesh Agreement Establishing the World Trade Organization, 15 April 1994, 1867 UNTS 154), and other bilateral agreements such as the 1963 Association Agreement with Turkey (Article 25(2) Agreement establishing an Association between the European Economic Community and Turkey, 12 September 1963, OJ 1977 L 361/29), as well as of the Energy Charter Treaty (ECT). It is thus directly bound by these treaties. In other constellations, the EU is not (yet) a party but (all) its member states are parties to the respective treaty regime (ECHR); in again other constellations, only some of the member states are treaty parties (e.g. as is the case with intra-EU BITs). The different constellations play a role for the qualification of EU law by the respective dispute settlement bodies.

For example, the LOSC is provided with a weak jurisdictional clause. Article 282 LOSC: “If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed, through a general, regional or bilateral agreement or otherwise, that such dispute shall, at the request of any party to the dispute, be submitted to a procedure that entails a binding decision, that procedure shall apply in lieu of the procedures provided for in this Part, unless the parties to the dispute otherwise agree.” Conversely, the clauses of the GATT/WTO regime or the ECHR are “strong” and establish the exclusive jurisdiction of the respective bodies (in more detail see also below Sect. 4.2).

For example, as dealt with below, in Iron Rhine, the tribunal’s mandate and scope of review was formulated in a way as to pay respect to the EU legal order as a separate legal order. Also, some EU member states, when accepting the jurisdiction of the ICJ, limited the latter’s jurisdiction in a way as to avoid conflicts of interests with other international tribunals, inter alia the CJEU (see below Sect. 3.1). This obviously had a bearing on the respective tribunals’ scope jurisdiction vis-à-vis the CJEU.

See, however, the contrary standpoint of the CJEU/the European Commission in investment cases. For details, below Sect. 3.4.

Note that these tensions are prime examples of the practical implications of the emergence of specialist rule-systems by the ILC. ILC, Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law—Report of the Study Group of the International Law Commission, 13 April 2006, UN Doc. A/CN.4/L.682, para. 10.

As will be shown in Sect. 4 in more detail, the tribunals referred to the principle of comity and to forms of judicial minimalism. In fact, at times, the principle of comity is made use of by one institution out of deference to another—more appropriate—forum for dispute resolution. De Búrca (2010), p. 10; Worster (2008), p. 120. Also judicial minimalism, i.e. a particular narrow understanding of the subject matter in dispute, has been a common occurrence to avoid interfering with the EU legal order or harmonious interpretation.

On the effect of mixed agreements see, e.g., Kuijper et al. (2015), p. 101 et seqq.

It has been assumed that a similar outcome before the CJEU would have also been reached regarding the OSPAR award. However, as the European Commission did not initiate infringement proceedings in that case—possibly to avoid a conflicting outcome—the question was not raised. See also Karaman (2012), p. 283. In any event, the OSPAR tribunal—Dispute Concerning Access to Information under Article 9 of the OSPAR Convention between Ireland and the United Kingdom of Great Britain and Northern Ireland, Final Award, XXIII RIAA 59, Decision (2 July 2003), para. 143—did state that the “OSPAR Convention contains a particular and self-contained dispute resolution mechanism […] in accordance with which this Tribunal acts.”

This is an arbitral tribunal established when the parties have not chosen the same means of dispute settlement under Part XV LOSC.

Article 282 United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 3.

CJEU, case C-459/03, Commission v Ireland (MOX Plant), ECLI:EU:C:2006:345, para. 84. The opinion of AG Maduro to CJEU, case C-459/03, Commission v Ireland (MOX Plant), ECLI:EU:C:2006:42, para. 14, explained in this regard that “It may be that a dispute falls largely and perhaps predominantly outside the jurisdiction of the Court, and that only one or a few of the matters of contention come within its jurisdiction. However, in such circumstances Article 292 EC […] nevertheless precludes that the entire dispute, including the elements falling within the scope of Community law, is submitted to a method of settlement other than those provided for in the Community Treaties. After all, there is no threshold in the rules establishing the Court’s jurisdictional monopoly.”

CJEU, case C-459/03, Commission v Ireland (MOX Plant), ECLI:EU:C:2006:345, para. 126 et seq. Within the decentralized judicial model contained in LOSC, Article 282 LOSC therefore constituted “a ‘friendly’ conflict rule” (Kuijper et al. (2015), p. 11), which the CJEU used to find the dispute settlement mechanism foreseen in the LOSC compatible with the EU’s autonomous legal order. See also Schill (2013), p. 40. In this sense, the outcome before the CJEU reminds of its earlier argumentation/explanations in opinions 1/91 and 1/92, where it found membership of the EU and its member states in an international agreement with its own system of courts to be “in principle compatible” with EU law, but only where such procedure “is not liable adversely to affect the autonomy of the Community legal order.” Hence, from a European perspective, where the international agreement enables deference in matters touching upon the interpretation and application of EU law, the CJEU’s monopoly is not under threat. This, however, entails that an international tribunal called upon to adjudicate on matters touching upon European also acts accordingly.

See also in more detail Sect. 4.

As mentioned above, the OSPAR tribunal had emphasized that the OSPAR Convention contained a “self-contained dispute resolution mechanism” and in its findings paid no direct regard to EU legislation, thus side-stepping the issue. Dispute Concerning Access to Information under Article 9 of the OSPAR Convention between Ireland and the United Kingdom of Great Britain and Northern Ireland, Final Award, XXIII RIAA 59, Decision (2 July 2003), paras. 85 and 143; Lavranos (2006a), p. 227.

See also Lavranos (2006a), pp. 233–239.

Statute of the International Court of Justice, 26 June 1945, 1 UNTS 993.

Note, however, that the newly amended 2005 Rules of Court stipulate in Article 43(2) that “[w]henever the construction of a convention to which a public international organization is a party may be in question in a case before the Court, the Court shall consider whether the Registrar shall so notify the public international organization concerned. Every public international organization notified by the Registrar may submit its observations on the particular provisions of the convention the construction of which is in question in the case.” In line with this provision, the EU has been invited in three cases to date to issue observations, but so far declined as it found that the subject matter did not fall within its competence, see also in more detail Hoffmeister (2012), p. 83 et seq.

The CJEU’s exclusive jurisdiction (Article 344 TFEU) does not generally pose a barrier since certain subject-matters are exempt from the CJEU’s jurisdiction. For example, Article 275 TFEU precludes the CJEU from exercising jurisdiction over matters relating to the common foreign and security policy. But also other matters where the EU does not possess competences escape the jurisdiction of the CJEU. See also Higgins (2003), p. 4.

Jennings and Higgins (2012), p. 6.

The following cases concerned legal disputes between two EU member states: Sovereignty over Certain Frontier Lands (Belgium v Netherlands), 1959 ICJ 209 (Judgment, 20 June 1959); North Sea Continental Shelf (Merits) (Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands), 1969 ICJ 4 (Judgment, 20 February 1969), concerning maritime delimitation, thus escaping EU competences; Jurisdictional Immunities of the State (Germany v Italy; Greece Intervening), 2012 ICJ 99 (Judgment, 3 February 2012).

See Germany’s Declaration Recognizing the Jurisdiction of the Court as Compulsory, 1 May 2008. See in a similar manner also Belgium (17 June 1958); Estonia (10 October 1991); Italy (25 November 2014); Lithuania (26 September 2012); Luxembourg (15 September 1930); Malta (6 December 1966); Netherlands (1 August 1956); Poland (25 March 1996); Portugal (25 February 2005); Romania (23 June 2015); Slovakia (28 May 2004); Spain (29 October 1990); United Kingdom (31 December 2014). Five EU member states have (currently) not issued any such declaration (Croatia, Czech Republic, France, Latvia, Slovenia), with the remaining nine not explicitly excluding such disputes from the ICJ’s jurisdiction: Austria (19 May 1971); Bulgaria (24 June 1992); Cyprus (2 September 2002); Denmark (10 December 1956); Finland (25 June 1958): Greece (14 January 2015); Hungary (22 October 1992); Ireland (15 December 2011); Sweden (6 April 1957).

Jacobs (2013), p. 246 et seqq.

See also Higgins (2003), p. 4 et seq.

Higgins (2003), pp. 17–20; In fact, the ICJ will feel called upon to express itself on a matter another international court or tribunal has ruled only if it feels its monopoly over general issues of international law—such as state responsibility—stepped on. The classic example relates to the “scolding” of the ICTY expressing itself on “issues of general international law” which did not lie “within the specific purview of its jurisdiction” (on the matter of the effective/overall control test required in the context of attribution), Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), 2007 ICJ 43, Judgment (26 February 2007), paras. 403–406.

Leathley (2007).

See particularly also Sect. 4.2 in more detail on these techniques.

The discretionary choice on whether or not to apply these techniques stands in contrast to the CJEU which is eager to protect the “external dimension of supremacy”, i.e. the autonomy of the EU legal order, from outside interference. Eckes (2012a), p. 232.

As regards the exclusive jurisdiction, see Article 23(2) Understanding on Rules and Procedures Governing the Settlement of Disputes, 15 April 1994, 1869 UNTS 401.

Durán (2017), p. 10.

Eckes (2013), p. 92; Durán (2017).

Hoffmeister (2015), p. 124 et seq.

The DSB regularly examines whether the alleged rights have been infringed by domestic measures, see also Matsushita et al. (2015), p. 32. The WTO’s general treatment of domestic law can be discerned from cases investigated by the DSB, and was elaborated particularly clearly in India-Patents (US): “In public international law, an international tribunal may treat municipal law in several ways. […] Municipal law may serve as evidence of facts and may provide evidence of state practice. However, municipal law may also constitute evidence of compliance or non-compliance with international obligations. For example, in Certain German Interests in Polish Upper Silesia, the Permanent Court of International Justice observed: ‘It might be asked whether a difficulty does not arise from the fact that the Court would have to deal with the Polish law of July 14th, 1920. This, however, does not appear to be the case. From the standpoint of International Law and of the Court which is its organ, municipal laws are merely facts which express the will and constitute the activities of States, in the same manner as do legal decisions and administrative measures. The Court is certainly not called upon to interpret the Polish law as such; but there is nothing to prevent the Court’s giving judgment on the question whether or not, in applying that law, Poland is acting in conformity with its obligations towards Germany under the Geneva Convention.’ […] It is clear that an examination of the relevant aspects of Indian municipal law and, in particular, the relevant provisions of the Patents Act as they relate to the ‘administrative instructions’, is essential to determining whether India has complied with its obligations under Article 70.8(a). There was simply no way for the Panel to make this determination without engaging in an examination of Indian law. But, as in the case cited above before the Permanent Court of International Justice, in this case, the Panel was not interpreting Indian law ‘as such’; rather, the Panel was examining Indian law solely for the purpose of determining whether India had met its obligations under the TRIPS Agreement. […]” (Appellate Body Report, India—Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS50/AB/R, 19 December 1997, para. 65 et seq. (emphasis added by AB)).

See, e.g., Panel Report, European Communities—Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS401/R, 25 November 2013. For this purpose, judgments by the CJEU are treated similar to a domestic court, see, inter alia, Panel Report, European Communities—Customs Classification of Frozen Boneless Chicken Cuts, WT/DS269/R, 30 May 2005, para. 7.390 et seq. (equating CJEU judgments with EU legislation for the purpose of interpretation under Article 32 VCLT); cf. Fogdestam Agius (2014), p. 242.

See, however, below as regards the distinct position of the CJEU.

See Marquet (2016), p. 11, with corresponding examples. The author argues that this might also be motivated by the disputing parties’ intentions to keep the (moral) authority of the CJEU low or to weaken the consistency of the EU’s position when pointing to cases conflicting with the EU’s arguments as presented to the WTO DSB.

Panel Report, European Communities and its Member States—Tariff Treatment of Certain Information Technology Products, WT/DS375R, WT/DS376/R, WT/DS377/R, 16 August 2010, para. 7735, fn. 974; cf. Marquet (2016), p. 9.

Cf. Qingzi Zang M, Shall We Talk? Judicial Communication Between the CJEU and the WTO Dispute Settlement, 2015, https://​www.​jus.​uio.​no/​english/​research/​networks/​european-law-network/​events/​european-law-forum/​judicial-communication-cjeu-wto.​pdf (last accessed 1 March 2017), p. 10.

Panel Report, United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/R, 10 November 2004, para. 6.473: “Other jurisdictions have accepted that gambling activities could be limited or prohibited for public policy considerations, in derogation of general treaty or legislative rules.” Supporting this statement with two CJEU cases, CJEU, case C-275/92, H.M. Customs and Excise v Schindler, ECLI:EU:C:1994:119; and CJEU, case C-6/01, Anomar and others, ECLI:EU:C:2003:446.

The ICJ formulated this slightly differently only a year prior to the Racke judgment in Gabčikovo Nagymaros (Hungary v Slovakia), 1997 ICJ 7, Judgment (25 September 1997), para. 109: “Both Parties agree that Articles 65–67 of the Vienna Convention on the Law of Treaties, if not codifying customary law, at least generally reflect customary international law and contain certain procedural principles which are based on an obligation to act in good faith.”

See in this regard also Flett (2012), pp. 278–281, listing numerous examples.

Article 1 ECHR: “The High Contracting parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.”; Acts directly against the EU or its institutions are inadmissible in Strasbourg ratione personae. See, e.g., European Commission, No. 8030/77, Confédération Francaise Démocratique du Travail v the European Communities, Decision of 10 July 1978, where the complaint was found inadmissible as being directed against a “person” not party to the Convention.

As possible complaint avenues, the ECHR provides for individual and inter-state complaints (Articles 33, 34 ECHR).

Note that a possible future accession of the EU to ECHR will considerably change the institutional setting. Once completed, the ECHR will become a mixed agreement and the acts of EU institutions may be examined as to their human rights conformity. The Treaty of Lisbon (Article 6(2) TEU) envisages the accession of the EU to the ECHR and states that the EU shall accede to the Convention under the conditions laid down in Protocol No. 8 to the Treaty. Accordingly, a draft agreement on the accession of the EU to the ECHR was negotiated early 2013. The very approach in the draft agreement was to generally treat the EU as a state and to give it a role identical to any other contracting party. See CJEU, Press release No 180/14 on Opinion 2/13, 18 December 2014, p. 2.

While the CJEU was given a possibility to ensure, via the preliminary ruling procedure, a consistent interpretation and application of EU law, this was criticized by the CJEU as, inter alia, undermining the autonomy of EU law and, thus, not being compatible with EU law. (CJEU, opinion 2/13, EU Accession to the ECHR, ECLI:EU:C:2014:2454, para. 170 et seq.) See above, Sect. 2.2.2.

Article 55 ECHR.

On 15 September 2016, Slovenia v Croatia was lodged at the ECtHR, concerning claims of Ljubljanska banka towards Croatian companies. See also Hojnik J, Slovenia v Croatia: The first EU inter-state case before the ECtHR, EJIL:Talk!, 17 October 2016, for further reference. Although current EU member states have in the past been involved in mutual disputes before the ECtHR, at least one of them was not an EU member state at the time of those proceedings. See the inter-state complaints Austria v Italy, lodged in 1960 (No. 788/60), Ireland v UK, lodged in 1971 and 1972 (Nos. 5310/71 and 5451/72), and Denmark and Sweden against Greece, lodged in 1967 (Nos. 3321/67 and 3323/67), respectively.

Aside from the instances addressed below under the equivalent protection doctrine, other constellations include interactions as regards admissibility/jurisdiction and whether infringement proceedings could be considered “another procedure of international investigation or settlement” in the meaning of Article 35(2)(b) ECHR. The ECtHR denied this, given the lack of similarity between the procedures, see ECtHR, No. 23205/08, Karoussiotis v Portugal, Judgment of 1 February 2011. Furthermore, non-compliance with EU law by EU member states was examined as to whether it amounted to a violation of the ECHR. Concerning the question whether a lack of reliance on the preliminary ruling procedure amounted to violation of Article 6(1) ECHR, the ECtHR’s findings depended on the circumstances of the case. For example, in ECtHR, Nos. 3989/07, 38,353/07, Ullens de Schooten and Rezabek v Belgium, Judgment of 20 September 2011, the ECtHR, having regard to the proceedings as a whole, stated that there had been no violation of the Convention. Conversely, in ECtHR, No. 17120/09, Dhahbi v Italy, Judgment of 8 April 2014, non-compliance with the preliminary ruling procedure was (inter alia) found to be a violation of Article 6(1) ECHR because of the deficiencies in the procedure before the Italian court which had not given reasons for refusing to submit a preliminary question to the CJEU.

See, inter alia, ECtHR, No. 45036/98, Bosphorus v Ireland, Judgment of 30 June 2005; ECtHR, No. 56672/00, Senator Lines v Austria and others, Judgment of 10 March 2004; ECtHR, No. 62023/00, Emesa Sugar v the Netherlands, Decision of 13 January 2005; ECtHR, No. 17502/07, Avotiņš v Latvia, Judgment of 23 May 2016.

See generally on this also Ryngaert (2011), p. 997 et seqq.

On that basis, the Court established a violation of Article 3 of Protocol No. 1 to the ECHR.

In addition to Kokkelvisserij see, inter alia, ECtHR, No. 12323/11, Michaud v France, Judgment of 6 December 2012; ECtHR, No. 3890/11, Povse v Austria, Judgment of 18 June 2013. Most recently, in Avotiņš v Latvia (2016), the ECtHR referred to the equivalent protection doctrine in relation to the enforcement in Latvia of a judgment delivered in 2004 in Cyprus with regard to the repayment of a debt. Although relevant EU law had not left any discretion to Latvia as to the enforcement of a judgment of another member state, the applicant had filed a complaint against Latvia claiming that the Latvian courts had authorized the enforcement of the Cypriot judgment which, in his opinion, had been delivered in violation of his defence rights. (See also the observations by the Commission of the European Union in ECtHR, No. 17502/07, Avotiņš v Latvia, Judgment of 23 May 2016, para. 89: “Hence, the courts of the Member States could not exercise any discretion in ordering the enforcement of a judgment given in another Member State. Such an act fell strictly within the scope of the international legal obligations of the Member State in which enforcement was sought, arising out of its membership of the European Union.”) In application of the equivalent protection doctrine, the ECtHR did not find that the protection of fundamental rights had been manifestly deficient to such an extent that the presumption of equivalent protection was rebutted and thus there had been no violation of Article 6(1) ECHR. ECtHR, No. 17502/07, Avotiņš v Latvia, Judgment of 23 May 2016, was the first case upholding the Bosphorus presumption after opinion 2/13 by the CJEU.

This was shown, e.g., in ECtHR’s discussion of the preliminary rulings procedure in Kokkelvisserij where the Court examined whether the procedure was accompanied by guarantees which ensured the equivalent protection of the applicant’s rights. ECtHR, No. 13645/05, Kokkelvisserij v the Netherlands, Decision of 20 January 2009, see quote in fn. 197. Still, the ECtHR generally accepts the EU division of competences on which it bases its judgments. In ECtHR, No. 3890/11, Povse v Austria, Judgment of 18 June 2013, the ECtHR declared a complaint in reliance on Article 8 ECHR inadmissible in a situation where Austrian courts had limited themselves to comply with their obligations under EU law in relation to the Austrian ordering of the enforcement an Italian judgment without examining the argument that the child’s return to Italy would be against her interest.

See Tietje’s similar suggestion for investment law, Tietje (2013), p. 22 et seq. The ECtHR’s case-law may also be compared to the Solange II jurisprudence of the German Federal Constitutional Court. In BVerfGE 73, 339—Solange II, the German Federal Constitutional Court stated that the standard of human rights protection ensured by the (then) European Community could be considered as in substance, content and effect, substantially equal to the one provided by the German Basic Law. Therefore, the German Federal Constitutional Court would no longer carry out a review of secondary Community legislation as long as the human rights protection by the European Community and in particular the CJEU could be considered as basically equal to the one provided by the German Basic Law.

See the general “first entry” rule in Council Regulation (EC) No 343/2003 (OJ 2003 L 50/1), Article 3(1) and the possibility for Belgium to derogate from that rule and take charge of the application in Article 3(2) thereof. Cf. Eckes (2012b), p. 261. A similar conclusion can be drawn from ECtHR, No. 29217/12, Tarakhel v Switzerland, Judgment of 4 November 2014, where the ECtHR’s scrutiny focused on how the Swiss authorities exercised their discretion in applying the Dublin Regulation.

Eckes (2012b), p. 261 et seq. (footnote omitted).

CJEU, Press release No 180/14 on opinion 2/13, 18 December 2014.

Cf. Odermatt (2014), p. 42 citing De Schutter: “It would be neither legally justified nor politically opportune to maintain the Bosphorus doctrine in its current form, as a doctrine that places the European Union in a privileged position, and that, instead of treating the Court of Justice of the European Union as a constitutional court comparable to any other, somehow inexplicably defers to its assessments more generously than to similar assessments made by its national counterparts.”

See, inter alia, the arguments brought in Electrabel v Hungary, ICSID Case No. ARB/07/19, Decision on Jurisdiction, Applicable law and Liability (30 November 2012); Letter of the European Commission, Internal Market and Services of 13 January 2006 quoted in Eastern Sugar, UNCITRAL, Partial Award (27 March 2007), paras. 24–26; European Commission Observations, 7 July 2010, paras. 30 and 38, cited in Eureko/Achmea, UNCITRAL, Decision on Jurisdiction (26 October 2010), paras. 180 and 182; see generally Kriebaum (2015).

See European Commission, Commission asks member states to terminate their intra-EU bilateral investment treaties, Press release IP-15-5198, 18 June 2015.

See generally Roe et al. (2011), p. 93 et seq.

Eastern Sugar, UNCITRAL, Partial Award (27 March 2007); Eureko/Achmea, UNCITRAL, Decision on Jurisdiction (26 October 2010); Oostergetel v The Slovak Republic, UNCITRAL, Decision on Jurisdiction (30 April 2010); Micula v Romania, ICSID Case No. ARB/05/20, Final Award (11 December 2013); see also Binder v Czech Republic, UNCITRAL, Final Award (15 July 2011); European American Investment Bank AG (EURAM) v Slovak Republic, UNCITRAL, Award on Jurisdiction (22 October 2012). The latter are of reduced relevance in view of their only indirect dealing with EU law.

Electrabel v Hungary, ICSID Case No. ARB/07/19, Decision on Jurisdiction, Applicable law and Liability (30 November 2012); AES v Hungary, ICSID Case No. ARB/07/22, Award (23 September 2010); RREEF Infrastructure v Spain, ICSID Case No. ARB/13/30, Decision on Jurisdiction (6 June 2016).

Article 59 VCLT reads as follows: “Termination or suspension of the operation of a treaty implied by conclusion of a later treaty. (1) A treaty shall be considered as terminated if all the parties to it conclude a later treaty relating to the same subject matter and: a) it appears from the later treaty or is otherwise established that the parties intended that the matter should be governed by that treaty; or b) the provisions of the later treaty are so far incompatible with those of the earlier one that the two treaties are not capable of being applied at the same time. […]”.

Article 30 VCLT reads as follows: “Application of successive treaties relating to the same subject matter: […] (3) When all the parties to the earlier treaty are parties to the later treaty but the earlier treaty is not terminated or suspended in operation under Article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty.”

See, for example, the position of the European Commission (letter of the DG Internal Market) in a letter submitted in Eastern Sugar, UNCITRAL, Partial Award (27 March 2007). See for further reference Reinisch (2012), p. 161. For a position which supports the supremacy of EU law see Eilmansberger (2009), p. 426. The latter was, however, unanimously rejected by investment tribunals. See also Micula v Romania, ICSID Case No. ARB/05/20, Final Award (11 December 2013), para. 179 et seq. For further references, where the Commission took the position that the treaties had automatically lapsed by operation of Article 59(1) VCLT, also upheld in Micula v Romania, ICSID Case No. ARB/05/20, Decision on Annulment (26 February 2016), para. 331 et seq.

In fact, the position which confers primacy/supremacy to EU law is strongest. To presume a sui generis nature and to assign an according primacy to EU law over other treaties (see Article 218(11) TFEU) would imply that BIT provisions contrary to (primary or secondary) EU law can no longer be applied. See Tietje (2013), p. 8.

Articles 59(1) and 30(3) VCLT.

Inter alia, it was argued that the treaties did not cover the “same subject matter” since the substantive guarantees in the BITs were more specific than those available under EU law. See for further reference Eureko/Achmea, UNCITRAL, Decision on Jurisdiction (26 October 2010), paras. 69 et seq., 235, 244 et seq., 262 and 283; Eastern Sugar, UNCITRAL, Partial Award (27 March 2007), paras. 101, 167, 172 and 180; Oostergetel v The Slovak Republic, UNCITRAL, Decision on Jurisdiction (30 April 2010), paras. 66, 80 and 104. See for further reference Kriebaum (2015), p. 31. See also Reinisch (2012), p. 165 et seqq. Also the Micula tribunal found that there was no real conflict under the law of treaties, see Micula v Romania, ICSID Case No. ARB/05/20, Final Award (11 December 2013), para. 319. See generally Binder (2016).

The Electrabel tribunal affirmed its jurisdiction. In fact, the jurisdictional issue had not been raised by a party but the EU which suggested in its amicus submission that the tribunal lacked jurisdiction to hear the PPA Termination claim. The tribunal highlighted that the EU had accepted jurisdiction of the tribunal and the possibility of investment arbitration with private parties, including EU nationals, by ratifying the ECT. Electrabel v Hungary, ICSID Case No. ARB/07/19, Decision on Jurisdiction, Applicable law and Liability (30 November 2012), para. 4.158.

The 1994 ECT (entry into force 1998) is the earlier treaty; still it has 54 treaty parties, see http://​www.​energycharter.​org/​who-we-are/​members-observers/​ (last accessed 1 March 2017). In relation to previous agreements, Article 16 ECT applies.

Electrabel v Hungary, ICSID Case No. ARB/07/19, Decision on Jurisdiction, Applicable law and Liability (30 November 2012), para. 4.112. See also AES v Hungary, ICSID Case No. ARB/07/22, Award (23 September 2010), para. 7.6.4.

RREEF Infrastructure v Spain, ICSID Case No. ARB/13/30, Decision on Jurisdiction (6 June 2016), para. 74: “[…] this Tribunal has been established by a specific treaty, the ECT, which binds both, the EU and its Member States on the one hand and non-EU States on the other hand. As for the latter, EU law is res inter alios acta and it cannot be upheld that, by ratifying the ECT, those non-EU States have accepted the EU law as prevailing over the ECT”.

See, e.g., Eureko/Achmea, UNCITRAL, Decision on Jurisdiction (26 October 2010), para. 276. As stated above, the object and purpose of Article 344 TFEU is to avoid arrangements that would deprive the CJEU of its jurisdiction to settle disputes concerning EU law. See also Binder v Czech Republic, UNCITRAL, Award on Jurisdiction (6 June 2007), para. 44.

As a general rule, the law in force at the time of the relevant events has to be applied to the merits of the case. This principle is reflected in Article 13 ARSIWA—Articles on Responsibility of States for Internationally Wrongful Acts, UNGA Res 56/83 (2001) UN Doc. A/56/10. See also Article 28 VCLT concerning the non-retroactivity of treaties. This rule is also firmly established in arbitral practice. Already Judge Huber in Island of Palmas (United States of America v Netherlands), 2 RIAA 829, Award (4 April 1928), p. 845, stated: “[…] a juridical fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time when a dispute in regard to it arises or falls to be settled.” Accordingly, EU law can only be part of the “applicable law” if the relevant events occurred after the accession of the respective states to the EU (or are judged by reference to earlier treaties such as the 1995 Europe Agreement in Micula).

Article 26(6) ECT, see also Article 16 ECT (conflict of norms provision); cf. Tietje (2013), p. 5.

Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, 18 March 1965, 575 UNTS 159.

Eureko/Achmea, UNCITRAL, Decision on Jurisdiction (26 October 2010), paras. 223–225: “The second stage originates from the offer’s acceptance by Claimant, as an investor and national of the Netherlands, here effected through the initiation of arbitral proceedings under Article 8 of the BIT. […] This second stage operates both under international law and, here, also under German law as the lex loci arbitri applying to UNCITRAL arbitration proceedings where the agreed place of arbitration is Frankfurt in the Federal Republic of Germany. [...] As a result, this is a German arbitration; and this Tribunal is an ad hoc German arbitration tribunal subject to German law and not an international tribunal (such as an ICSID tribunal under the 1965 Washington Convention). Germany is a founding member of the EU; and German law includes, of course, EU law. The Tribunal cannot derive any part of its jurisdiction or authority from EU law as such: its jurisdiction is derived from the consent of the Parties to the dispute, in accordance with the BIT and German law. Although EU law, as between the EU and member States of the EU (including Respondent and the Netherlands, but not Claimant), operates at the level of international law, EU law operates, as between the Parties, as part of German law as the lex loci arbitri.”

AES v Hungary, ICSID Case No. ARB/07/22, Award (23 September 2010), para. 7.6.6. See in this regard also the WTO DSB’s treatment of EU law as fact as addressed above in Sect. 3.2.2.

Also the RREEF tribunal considered EU law as a subset of international law. Similarly, in the intra-EU BIT arbitration Eastern Sugar, the tribunal dealt with EU law as “normal” international law and applied relevant techniques for the resolution of conflicts of norms (Articles 59, 65 VCLT). Eastern Sugar, UNCITRAL, Partial Award (27 March 2007), para. 159.

See also Electrabel v Hungary, ICSID Case No. ARB/07/19, Decision on Jurisdiction, Applicable law and Liability (30 November 2012), para. 4.122, citing Van Gend & Loos. “The community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights.”

Note, however, that in the respective investment proceedings the qualification of EU law is of secondary importance. Rather, it is of prevailing relevance whether EU law is qualified in a way as to be applicable law to the dispute in line with the “applicable law clause”. Whether EU law is viewed as national or international law seems secondary as long as the applicable law clause allows for its application.

The multifaceted nature of EU law was also explicitly recognized by some tribunals (e.g. AES, Electrabel). The different approaches in part must be seen in the context of the varying “applicable law” clauses. In fact, also the submissions of the parties play a role as regards the qualification of EU law since the investment tribunals generally decide on the basis of the submissions.

With the Treaty of Lisbon, FDI is explicitly mentioned as part of the EU common commercial policy (Article 207(1) para. 4 TFEU). The common commercial policy is one of the Union’s exclusive competences (Article 3(1)(e) TFEU). Thus, investment, after the treaty of Lisbon, gives the EU full exclusive competence. Accordingly, in treaties such as the CETA, draft TTIP and the Singapore agreement, the EU is the negotiating party. While CETA was concluded as a mixed agreement between Canada and the EU and its member states, this was due to growing political pressure within a number of EU member states. It was, however, solely negotiated by the EU. See also Briefing of the European Parliament, January 2016, http://​www.​europarl.​europa.​eu/​RegData/​etudes/​BRIE/​2016/​573929/​EPRS_​BRI%282016%29573929_​EN.​pdf (last accessed 1 March 2017).

See the respective provisions in the TTIP and CETA agreements where domestic law is excluded from the scope of jurisdiction and EU law is seen as domestic law. Article 13(3) Applicable law and rules of interpretation of the Commission draft text Transatlantic Trade and Investment Partnership—investment: “For greater certainty, pursuant to paragraph 1, the domestic law of the Parties shall not be part of the applicable law. Where the Tribunal is required to ascertain the meaning of a provision of the domestic law of one of the Parties as a matter of fact, it shall follow the prevailing interpretation of that provision made by the courts or authorities of that Party.” Article 8.31(2) Applicable law and interpretation of the Comprehensive Economic and Trade Agreement (CETA) Between Canada and the European Union: “The Tribunal shall not have jurisdiction to determine the legality of a measure, alleged to constitute a breach of this Agreement, under the domestic law of the disputing Party. For greater certainty, in determining the consistency of a measure with this Agreement, the Tribunal may consider, as appropriate, the domestic law of the disputing Party as a matter of fact. In doing so, the Tribunal shall follow the prevailing interpretation given to the domestic law by the courts or authorities of that Party and any meaning given to domestic law by the Tribunal shall not be binding upon the courts or the authorities of that Party.”

Oostergetel v The Slovak Republic, UNCITRAL, Decision on Jurisdiction (30 April 2010), para. 100 (but no explicit reference to Article 31 VCLT); Micula v Romania, ICSID Case No. ARB/05/20, Final Award (11 December 2013); RREEF Infrastructure v Spain, ICSID Case No. ARB/13/30, Decision on Jurisdiction (6 June 2016), para. 76.

From the perspective of the European Commission, this is clearly the case in the field of investment law. The difficulties are more generally discussed in Michaels and Pauwelyn (2011), p. 35. Moreover, the conflict rules contained in Articles 59 and 30 VCLT both require the “same subject-matter”, which is generally interpreted narrowly, and will thus prevent treaty regimes with overlapping jurisdictional mandates. See, e.g., ILC, Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law—Report of the Study Group of the International Law Commission, 13 April 2006, UN Doc. A/CN.4/L.682, para. 116 et seqq.; Tietje (2013), p. 14.

Crawford and Nevill (2012), p. 236; ILC, Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law—Report of the Study Group of the International Law Commission, 13 April 2006, UN Doc. A/CN.4/L.682, para. 324. On ius cogens or other forms of normative hierarchy, see below.

De Wet (2006).

For further reference on subsystems of international law see, inter alia, Simma and Pulkowski (2006).

D’Aspremont and Dopagne (2009), p. 951.

On the debate of international constitutionalization see for many Klabbers et al. (2009) and D’Aspremont and Dopagne (2009).

See, inter alia, Barcelona Traction, Light and Power Company, Limited (Second Phase) (Belgium v Spain), 1970 ICJ 3, Judgment (5 February 1970), para. 33 et seq.; East Timor (Portugal v Australia), 1995 ICJ 90, Judgment (30 June 1995), para. 29; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004 ICJ 136, Advisory Opinion (9 July 2004), paras. 88 and 156; Application of the Convention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia), 1996 ICJ 595, Preliminary Objections (11 July 1996), Dissenting Opinion by ad hoc Judge Kreca, para. 68.

ILC, Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law—Report of the Study Group of the International Law Commission, 13 April 2006, UN Doc. A/CN.4/L.682, para. 327 et seqq.

D’Aspremont and Dopagne (2009), p. 951.

Shirlow (2014), p. 8.

CFI, case T-315/01, Kadi v Council and Commission, ECLI:EU:T:2005:332; Opinion of AG Maduro to CJEU, case C-402/05 P, Kadi v Council and Commission, ECLI:EU:C:2008:11; CJEU, case C-402/05 P, Kadi v Council and Commission, ECLI:EU:C:2008:461.

D’Aspremont and Dopagne (2009), p. 947.

See, e.g., CJEU, case C-459/03, Commission v Ireland (MOX Plant), ECLI:EU:C:2006:345; CJEU, case 294/83, Les Verts v Parliament, ECLI:EU:C:1986:166; CJEU, opinion 2/13, EU Accession to the ECHR, ECLI:EU:C:2014:2454.

Cf. Lenaerts (2015), p. 263.

CJEU, opinion 1/91, European Economic Area, ECLI:EU:C:1991:490; CJEU, opinion 2/13, EU Accession to the ECHR, ECLI:EU:C:2014:2454, para. 194: “In so far as the ECHR would, in requiring the EU and the Member States to be considered Contracting Parties not only in their relations with Contracting Parties which are not Member States of the EU but also in their relations with each other, including where such relations are governed by EU law, require a Member State to check that another Member State has observed fundamental rights, even though EU law imposes an obligation of mutual trust between those Member States, accession is liable to upset the underlying balance of the EU and undermine the autonomy of EU law.”

For an exemplary listing of a number of such techniques see, e.g., Crawford and Nevill (2012). As explained by Shany, these techniques can be divided into two different “narratives of international law”: disintegrationism (limiting the dispute to specific claims for the purpose of jurisdiction) and integrationism (resolving the dispute by coordinating—as far as possible—the application of substantive and procedural sub-sets of international law). Shany (2007), p. 108 et seq.

See also Shany (2007), p. 109.

See above Sect. 3.1.

ILC, Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law—Report of the Study Group of the International Law Commission, 13 April 2006, UN Doc. A/CN.4/L.682, para. 13.

See, e.g., the criticism voiced by the former ICJ Vice-President Shigeru Oda in Oda (1995). Article 282 of the LOSC provides the framework for this attitude: “If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed, through a general, regional or bilateral agreement or otherwise, that such dispute shall, at the request of any party to the dispute, be submitted to a procedure that entails a binding decision, that procedure shall apply in lieu of the procedures provided for in this Part, unless the parties to the dispute otherwise agree.”

See, e.g., Southern Bluefin Tuna (New Zealand v Japan, Australia v Japan), Award on Jurisdiction and Admissibility, XXIII RIAA 59, Decision (4 August 2000), para. 54; The MOX Plant Case (Ireland v United Kingdom), Annex VII Tribunal (PCA), Order No. 3, Suspension of Proceedings on Jurisdiction and Merits and Request for Further Provisional measures (24 June 2003).

Hoekman and Mavroidis (2014), p. 246.

See for examples Henckels (2008), p. 573.

Panel Report, European Communities—Selected Customs Matters, WT/DS315/R, 16 June 2006, paras. 2.2–2.31; Eckes (2013), p. 95.

Note that deference on a substantive level (as practiced by the WTO DSB or the ECtHR) could also be seen as a substantive means for reconciliation. As it is, however, also an instrument used to reconcile competing jurisdictional mandates, it has been included in this section.

Article 55 ECHR.

European Commission, No. 25781/94, Cyprus v Turkey, Decision of 28 June 1996. In CJEU, opinion 2/13, EU Accession to the ECHR, ECLI:EU:C:2014:2454, para. 179, the CJEU acknowledged that inter-state applications between two EU member states were in principle compatible with its exclusive jurisdictional mandate under Article 344 TFEU as the ECHR had not been “formally incorporated into the legal order of the EU” yet. This notwithstanding the fact that the CJEU found the scrutinized Draft Accession Agreement incompatible in its present form.

ECtHR, No. 45036/98, Bosphorus v Ireland, Judgment of 30 June 2005; ECtHR, No. 13645/05, Kokkelvisserij v the Netherlands, Decision of 20 January 2009.

See particularly also Sect. 3.2.2; cf. Korenica (2015), p. 55.

Crawford and Nevill (2012), p. 243 et seq.

Fisheries Jurisdiction (Spain v Canada), 1998 ICJ 432, Jurisdiction (4 December 1998); cf. Higgins (2003), p. 4 et seq.

Cf. Henckels (2008), p. 583.

Slaughter (2003), p. 205.

Note in this regard also the approach by investment tribunals with regard to arguments pertaining to Article 344 TFEU (as discussed above in Sect. 3.4.2.1), which leave the question of its effect on possible inter-state complaints arising under a BIT open. Moreover, in distinguishing their approach from MOX Plant, tribunals refer to the distinct nature of investor-state relations in contrast to inter-state disputes.

Henckels (2008), p. 585.

ILC, Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law—Report of the Study Group of the International Law Commission, 13 April 2006, UN Doc. A/CN.4/L.682, para. 220.

As to the relevance of the principle of systemic integration see Simma and Kill (2009); see also the reference to Article 31(3)(c) VCLT in ILC, Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law—Report of the Study Group of the International Law Commission, 13 April 2006, UN Doc. A/CN.4/L.682, para. 423; Gardiner (2015), p. 304 et seq.; McLachlan (2005), for further reference; see also the respondent’s arguments on the application of Art. 31(1)(c) VCLT in Micula v Romania, ICSID Case No. ARB/05/20, Final Award (11 December 2013), paras. 305–308.

For further reference on the VCLT’s rules concerning treaty interpretation see Gardiner (2015); in the investment law context, see Dolzer and Schreuer (2012), p. 28 et seqq.

The latter, of course, only in case of acceptance of a reconciling treaty interpretation approach (Article 31(3)(c) VCLT). See for positive examples ECtHR, No. 10593/08, Nada v Switzerland, Judgment of 12 September 2012, para. 169; Oil Platforms (Islamic Republic of Iran v United States of America), 2003 ICJ 161, Judgment (6 November 2003), para. 41. For the potential of Article 31(3)(c) VCLT to reconcile, for example, international investment law and human rights law see Kriebaum (2009), p. 668. Conversely, the Electrabel case, based on an intra-EU application of the ECT, illustrates the risks and rejection of the technique, see Electrabel v Hungary, ICSID Case No. ARB/07/19, Decision on Jurisdiction, Applicable law and Liability (30 November 2012), para. 4.130. See for further reference, Paparinskis (2014), p. 56.

See, e.g., Panel Report, European Communities—Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS401/R, 25 November 2013. For this purpose, judgments by the CJEU are treated similar to a domestic court, see, inter alia, Panel Report, European Communities—Customs Classification of Frozen Boneless Chicken Cuts, WT/DS269/R, 30 May 2005, para. 7.390 et seq., equating CJEU judgments with EU legislation for the purpose of interpretation under Article 32 VCLT.

Article 27 VCLT.

On the promise of preliminary rulings in the context of intra-EU BITs, see Schreuer, European law and investment arbitration, Vienna Arbitration Days 18 February 2012; see also the suggestions by the Czech Republic in Binder v Czech Republic, UNCITRAL, Award on Jurisdiction (6 June 2007), para. 7; and by Slovakia in Oostergetel v The Slovak Republic, UNCITRAL, Decision on Jurisdiction (30 April 2010), para. 68 (rejected in para. 105).

As analysed by Shany (2014), p. 280, these are the constitutionalization of EU law and the advancement of market integration.