유럽연합의 투자법원제도(안)와 유럽연합법제도의 양립가능성에 관한 사례 연구

In the case of ‘Opinion 1/17’, Belgium requested the CJEU to decide the issue whether the ICS under the CETA is compatible with EU legal order. The CJEU is going to provide an authoritative opinion with regard to the issues resulting from ISDS in extra-EU BITs or FTAs. In Achmea, CJEU decided that an Investor-State Arbitration method under intra-EU BITs was not compatible with EU legal order. Advocate General Bot delivered his opinion on 29 January 2019 that, on the basis of reciprocity, Canadians investing in the EU are protected by the CETA just as EU investors are in Canada. He opined that the ICS in the CETA does not affect the autonomy of the EU legal order. He reached to such conclusion by balancing the maintenance of the autonomy of EU legal order and the pursuit of the effectiveness of the EU’s Common Commercial Policy. In favour of the AG Bot’s opinion, the ICS exists while the CJEU holds the exclusive rights of interpretation of the EU legal order. Against the AG Bot’s opinion, however, the ICS and the CETA shall be terminated under the concept of the autonomy of EU legal order, and the Investor-State Arbitration is to be completely banned in the EU. It is not easy to expect clearly the extent to which the CJEU reflects AG Bot’s opinion in its forthcoming Opinion 1/17. For the present, EU Commission is gearing up for its proposal for ICS or MIC in the meetings of UNCITRAL Working Group III, which the CJEU is most likely to consider in answering the questions made by Belgium in the case of Opinion 1/17.