With Opinion 1/17, the Court of Justice of the European Union (CJEU) approved
the Investment Court System (ICS) contained in the Comprehensive Economic Trade
Agreement (CETA) between the EU and Canada. This means that the EU can proceed
with the ratification process of the investment protection part of CETA and the
other free trade agreements it has concluded, and which contain a similar ICS.
However, as the author illustrates, the approval of the ICS is conditioned by a
complete isolation of EU law from international investment law. More
specifically, the CJEU made clear that the CETA tribunals operate outside the
EU legal order and have no power to interpret or apply EU law. At the same
time, the CJEU highlighted the importance that the CETA Parties adopt
supplemental rules for reducing the financial burden for access to the ICS for
small and medium-sized enterprises (SMES). Additionally, the CJEU rejected the
currently existing possibility that binding joint interpretations of the CETA
Parties could have retroactive effect. In sum, the approval of the ICS by the
CJEU enables the European Commission to continue to develop the multilateral
investment court (MIC) within the UNCITRAL Working Group iii as long as it
follows the blueprint of the CETA ICS.