This paper provides a sceptical analysis of the enforcement of
investor-state dispute settlement (ISDS) awards against the European Union or
its Member States in a conflict with EU norms following Opinion 1/17 of the
CJEU on the Canada-EU Comprehensive Economic and Trade Agreement (CETA). It
argues that the CETA decision has obscured, but has failed to alleviate, three
fundamental incompatibilities between sui generis doctrines of EU law and
essential tenets of international investment arbitration. It is not at all
clear whether the CJEU accepts the jurisdiction of the ISDS tribunal in Chapter
8-F of CETA to rule on a breach of CETA contrary to the CJEU’s interpretation
of the validity of EU acts under the EU’s own rules, and the CETA decision does
nothing to modify the formal procedures and doctrines by which the autonomy and
supremacy of EU law have supplanted conflict of law norms permitting the
application of arbitral awards over conflicting European law. The article
cautions that Canadians may prove little better able to enforce arbitral awards
against deprivations of CETA rights by EU norms than if the CJEU had simply
ruled that the CETA Tribunal must be subsumed within the EU court system
itself.