Investor-State arbitration based on intra-EU BITs is often seen as a threat to the ECJ's authoritative power of interpretation, because relevant questions of EU law may never reach the ECJ. This, however, is only true if investment treaty arbitration is treated in the same way as commercial arbitration, where arbitral tribunals are not allowed to make preliminary references to the ECJ (see Nordsee and Eco Swiss). This conventional approach, as illustrated by the recent case of Eurekov. Slovak Republic, relies on the supervisory powers of the EU Member State courts in international (commercial) arbitration, focusing on the reviewability of EU public policy.
This article argues that the case law of the ECJ could be interpreted in a way that would allow investment tribunals to make direct references for a preliminary ruling. If references from investment tribunals to the ECJ were allowed, as a matter of law, there would be no bypassing of the ECJ and therefore no threat to the EU judicial system. The advantages of the proposed system of direct referral would be that investment tribunals could refer any question of EU law at any stage of the arbitration proceedings. This would enhance the role of EU law and alleviate the risk that any final award eventually proves unenforceable within the EU for breach of EU public policy. This would not only be more efficient but also create legal certainty and better respect investment treaty law and arbitration within the EU.Common Market Law Review