Document Type

Article

Disciplines

International Law

Abstract

After nearly eighty years as a key promotor of public international law, European law, and the values of individual human rights, democracy, and the rule of law more generally, why has the Court of Justice of the European Union ("CJEU" or "the Court")-with other European Union ("EU") institutions and Member States-rendered a series of decisions in the last five years dismantling one of the post-World War II public international legal system's crowning achievements in Europe: the system of investor-State investment dispute settlement ("ISDS") before independent arbitral tribunals? This piece argues that the Court, as well as the European Commission's, recent hostility towards ISDS, is in part a wellintentioned but potentially misjudged effort to bolster the EU against perceived threats to its "supremacy." These threats have been lifted to the CJEU's direct attention through the courant of Euroscepticism that has rushed across Europe since the defeat of the referenda on the draft European Constitution in the Netherlands and France in 2005 and culminated in Brexit and efforts in Poland, Germany, Hungary, and elsewhere to disregard the EU law principle of primacy. The Court's impulse to wield its jurisprudential might to block rule of law "backsliding" through strict application of Articles 267 and 344 TFEU and Article 19 TEU (which the CJEU deploys to delineate EU courts' "exclusive" jurisdiction over issues of EU law) and its application of this philosophy to ISDS can be witnessed through the similar reasoning and references present in the Court's "anti-ISDS" decisions Slovak Republic v. Achmea, Republic of Moldova v. Komstroy, and European Foods, as well as Portuguese Judges and other decisions aiming to curtail misbehavior of "backsliding" governments in Poland, Hungary, and other EU Member States. Despite the CJEU and the EU's seemingly positive intentions to reinforce the "rule of law" in the EU through these actions, this article queries whether the CJEU's increasing volontd to unilaterally expand the jurisdiction of EU courts and issue decisions that ostensibly violate bedrock principles of customary public international law, such as pacta sunt servanda, is a healthy development for the post-World War II international legal order.

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