Tuesday, 29 March 2016

Preliminary references and investment tribunals: is the Luxembourg Court extending a helping hand?

Hannes Lenk, PhD Candidate at the University of Gothenburg

The relationship of arbitral tribunals with the Court of Justice of the European Union (CJEU) has been the subject of a long-lasting juridical struggle. The current position is as simple and pragmatic as it is controversial. Commercial arbitration tribunals are not considered to be a ‘court and tribunal of a Member State’ within the meaning of the Article 267 TFEU and, thus, unable to refer questions to the CJEU on matters of interpretation of EU law.  At the same time, it is an open secret that questions of EU law do arise during arbitration proceedings, and there is an inherent risk that tribunals get it wrong—at least sometimes. In commercial arbitration these shortcomings might be addressed through the indirect involvement of domestic courts and the CJEU at the recognition and enforcement stage of arbitral awards. A similar possibility might not exist in investment arbitration and for some time now the question of whether or not investment tribunals are entitled to request preliminary references from the CJEU has been simmering under the surface of a deeply politicised debate on investor-state dispute settlement provisions in currently ongoing negotiations for deep and comprehensive trade and investment agreements with, inter alia, Canada and the US. A recent opinion of Advocate General Wathelet might break new ground in this debate and prepare the field for future judicial dialogue.

Commercial arbitration: from Nordsee to Eco Swiss

'Article 267 TFEU is an important instrument for cohesion and coherence in the judicial system of the European Union (EU), including domestic courts as ‘ordinary courts of the EU legal order’ (Opinion 1/09, para. 80). By way of establishing a judicial dialogue, the preliminary reference mechanism guarantees that individuals have their rights under EU law enforced in domestic courts, and assures a uniform interpretation and application of EU law in all Member States. Notably, the decision to request a preliminary reference is generally within the discretion of domestic courts, which are obligated to refer questions only in limited circumstances, i.e. in instances where the case is pending before a domestic court of last instance.

Article 267
1. The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:
(a) the interpretation of the Treaties;
(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;
2. Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.
3. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.
4. If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay.'

However, Article 267 TFEU includes a significant procedural limitation. In order to to request a reference from the CJEU the judicial body must be covered by the concept of ‘any court or tribunal of a Member State’. The CJEU has historically interpreted this concept restrictively. In Dorsch Consult the CJEU clarified the characteristics that need to be taken into account. Accordingly, a ‘court of tribunal’ is any judicial body that exercises judicial functions, i.e. that is (a) established by law, (b) a permanent institution, (c) with compulsory jurisdiction, (d) whose procedure is inter partes, (e) applying rules of law, and (f) acts independent of other branches of government. Applying these criteria to a commercial arbitration tribunal, the CJEU subsequently declared in Nordsee that despite “certain similarities between the activities of the arbitration tribunal … and those of an ordinary court”, the tribunal in question was not a ‘court or tribunal’ within the meaning of the preliminary reference procedure.

Arbitral tribunals are, therefore, left without guidance on the interpretation of EU law where this becomes relevant during the arbitration proceedings. From an EU law perspective, the adverse effect of incorrect interpretation and application of EU law in commercial arbitration is mitigated by the indirect involvement of domestic courts, and by association the CJEU. Indeed, domestic courts play an important role in supporting the arbitral tribunal upon request, as well as in the recognition and enforcement of arbitral awards. In Eco Swiss the CJEU emphasized that domestic courts are generally required to assess the compatibility of arbitral awards with EU public policy and may request a preliminary reference from the CJEU to that end. The award in Eco Swiss was considered a violation of EU competition rules (now Article 101 TFEU), which, according to the CJEU, constitutes a ‘fundamental provision which is essential for the accomplishment of tasks entrusted to the [Union]’ (para. 36). The CJEU furthermore clarified that it is to be considered part of public policy in the meaning of Article V(1)(c) and (e), and II(b) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.  Consequently, arbitral awards that are irreconcilable with EU public policy are unenforceable within the territory of the Member States under domestic and international law.

Investment arbitration: commercial arbitration in disguise or something else entirely?

This approach is open for much criticism, not least because the concept of EU public policy remains notoriously undefined. “In light of a constant referral of additional tasks upon the European Union over the last twenty years, it has become increasingly difficult to identify those provisions which may be regarded as fundamental for those tasks.” (Basedow, p. 373). Nonetheless, from an EU law perspective it appears to provide a pragmatic procedural solution that reserves the involvement of the CJEU and assures the application of EU law in domestic courts. Particularly in the area of investment arbitration it has been suggested that invoking EU public policy at the enforcement stage might prevent some of the most controversial awards from gaining legal effect within the EU legal order. But investment arbitration is in many ways different from commercial arbitration. The vast majority of proceedings is governed by the rules of the International Centre for Settlement of Investment Disputes (ICSID). Article 54 ICSID provides for the automatic recognition and enforcement of awards, excluding domestic courts from any involvement in the review of ICSID awards vis-à-vis public policy. To make matters worse, non-ICSID awards are not seldom enforced outside the territory of the respondent state. Enforcement of the controversial Micula award, for instance, is currently sought in the US.

Gaffney and Basedow have recently advocated the view that investment tribunals should be able to request references under Article 267 TFEU. It is in this context noteworthy that the CJEU in Nordsee conceded to the possibility that an arbitral tribunal might fall within the scope of Article 267 TFEU, provided that the tribunal derives its jurisdiction not exclusively from party autonomy of the disputing parties, but instead involves the exercise of state authority to the extent that it can be considered an institution of the state. This view was later confirmed in Ascendi, a request from the Tribunal Arbitral Tributário in Portugal. The CJEU observed that Portuguese law provides for the resolution of tax disputes through arbitration, which also regulates the functioning and constitution of the tribunal. “[The Tribunal’s] jurisdiction stems directly from the provisions of Decree-Law No 10/2011 and is not, as a result, subject to the prior expression of the parties’ will to submit their dispute to arbitration”, the CJEU concluded (para. 29). Not unlike the Tribunal Arbitral Tributário, investment tribunals are an alternative dispute settlement system provided for in law, i.e. the the underlying investment agreement, which constitute a “non-transient element of [the domestic] judicial system” (Basedow, p. 379-380).

The idea to construe investment tribunals as ‘court or tribunal’ for the purpose of Article 267 TFEU is not merely a scholarly endeavor to square the circle. There are signs from within the CJEU that this might present an acceptable solution to the problem of integrating investment tribunals in the EU legal order. In his recent Opinion in Genentech, a preliminary ruling from the Cour d’appel de Paris concerning the notion of EU public policy in the recognition and enforcement of arbitral awards, Advocate General Wathelet presented his well-balanced and carefully drafted view on the relationship of arbitral tribunals with the CJEU. On the outset the AG simply confirms well established case law along the lines of Nordsee and Eco Swiss.

'Referring to the system for reviewing the compatibility of international arbitral awards with EU law through the public policy reservation […] the Court has held that arbitral tribunals ‘constituted pursuant to an agreement’ are not courts of the Member States within the meaning of Article 267 TFEU. Consequently, they cannot refer questions for a preliminary ruling. It is therefore for the courts of the Member States, within the meaning of Article 267 TFEU, to examine, if necessary by referring a question for a preliminary ruling, the compatibility of (international or domestic) arbitral awards with EU law where an action is brought before them for annulment or enforcement, or where any other form of action or review is sought under the relevant national legislation.'

Much more powerful considerations are hidden in the footnotes. Here the AG addresses the situation of investment tribunals explicitly to which, in his view, different considerations should apply.

Footnote 34

'Based on this case-law, the arbitral tribunals hearing cases within the framework of the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (ICSID) could be regarded as being able to refer questions to the Court for a preliminary ruling. See, to that effect, [Basedow], p. 376 to 381. Since the number and size of investment arbitrations raising questions on the application of EU law are increasing, particularly in the field of State aid, the possibility for arbitral tribunals to refer questions for a preliminary ruling could help to ensure the correct and effective implementation of EU law.'

Indeed, these remarks are merely obiter dicta and the CJEU is unlikely to address any of this in the final judgment, other than—probably—following the AG on substance. The opinion, nonetheless, sends a strong signal to investment tribunals, i.e. an explicit invitation to request preliminary references from the CJEU on matters of interpretation of EU law.

Helping hand or last straw

In the best of cases AG Wathelet’s opinion would be construed as a helping hand from Luxembourg to find an amicable solution to the current conflict, based on judicial dialogue and mutual comity. However, investment tribunals have thus far refused to engage with the CJEU on questions of EU law. Or put differently, it does not appear as if investment tribunals consider EU law to be of actual relevance to arbitration. In Oostergetel and Laurentius, for instance, the tribunal acknowledged that there is “absence of any conclusive position of the [CJEU]” on the relevant issues of EU law, but subsequently rejected the respondent’s request to refer a question to the CJEU with the help of a domestic court (para. 109). The investment tribunal in Micula rejected concerns raised by the Commission to the effect that the award, if rendered, were unenforceable under EU state aid law; plainly ignoring the resulting conflict.

Gaffney suggested that a lack of guidance on questions of EU law would prompt a domestic court’s responsibility under Article 267 TFEU. However, even domestic courts might be cautious of involving requests for preliminary references in investment arbitration cases. When the award on jurisdiction in Achmea was challenged in May 2012 the Higher Regional Court of Frankfurt decided that, while EU law was raised during the arbitration, the dispute concerned in fact the interpretation of the arbitration clause in the investment agreement and as such fell outside the scope of interpretation of EU law. Ultimately, the final award was challenged before the same court in December 2014. The Frankfurt court recognized that the compatibility of arbitration clauses in intra-EU investment agreements with the Treaties is much debated but refused to refer the question to the CJEU. These cases reflect anything but excitement about the involvement of the CJEU in the arbitration process. Rather than jumping on the invitation from Luxembourg to refer questions, AG Wathelet’s opinion runs the risk of being perceived as a last straw for investment tribunals that are ultimately expected to accept the dominance of EU law and the jurisdiction of the CJEU.

Remaining challenges

However, even if investment tribunals refer questions to the CJEU in the future, a few questions still remain. First, courts or tribunals against whose decision there is no judicial remedy are not only entitled, but, in accordance with Article 267(3) TFEU, obligated to refer questions on the interpretation and the legality of EU law. Although domestic arbitration laws may provide for investment awards to be set aside, it does not prevent the award from being enforced under Article (1)(e) of the New York Convention in another state. Article 52 ICSID provides for an internal procedure for the annulment of ICSID awards on limited grounds, which effectively excludes the involvement of domestic courts. Considering, therefore, that an investment award cannot be appealed or permanently set aside on the basis of wrongful interpretation of EU law, investment tribunals might fit squarely into Article 267(3) TFEU.

The investment court, which was recently incorporated in the Comprehensive Economic and Trade Agreement with Canada (CETA) and the EU-Vietnam FTA, and which is proposed in Transatlantic Trade and Investment Partnership with the US (TTIP), raises similar concerns. Decisions of the Tribunal may be appealed before the Appeals Tribunal, inter alia, on grounds of the wrongful appreciation of domestic law (as a matter of fact). Albeit that the first instance Tribunal is relieved from any obligation under Article 267(3) TFEU, it ultimately shifts this burden onto the Appeals Tribunal. The more fundamental problem in this regard is that the EU Treaties cannot actually obligate investment tribunals to refer questions to the CJEU.

Secondly, decisions of the CJEU under the preliminary reference procedure are binding on the referring court. Without explicit safeguards in the investment agreement, however, investment tribunals are under no obligation to follow the interpretation of the CJEU (Gaffney, p. 13). There is no obvious reason why investment tribunals would refer a question to the CJEU just to subsequently ignore the answer provided. Be that as it may, these two above reservations are likely to affect the essential characteristics of Article 267 TFEU, and the powers conferred thereunder on the CJEU. According to well-established case law of the CJEU, this would adversely affect the autonomy of the EU legal order and consequently violate the Treaty (Opinion 1/09, para. 77-79). An interpretation of Article 267 TFEU that invites arbitral tribunals to refer questions but neither obligates them to do so under Article 267(3) TFEU nor renders answers of the CJEU binding on the referring investment tribunal would, thus, be incompatible with the Treaties.

Third, and perhaps most problematic, are denial of justice cases where the interpretation of domestic law might itself be the reason for an investment dispute. It would be bizarre scenario, indeed, for investment tribunals to request a preliminary ruling from the CJEU on a domestic court’s interpretation of EU law, particularly if the CJEU was involved during the domestic proceedings. Under the EU-Vietnam FTA and CETA, such a scenario could be captured by manifest arbitrariness (e.g. Article 8.10(2)(c) CETA). Gaffney points out a few other challenges such as the steadily growing influx of preliminary references that is already creating a backlog of cases, and which is likely to extend the arbitration process for several month, if not years (p. 14).


Although we are unlikely to see changes in the approach of the CJEU to commercial arbitration anytime soon, AG Wathelet’s opinion amounts to a strong endorsement of the view that investment tribunals are an entirely different story. Whether or not the preliminary reference procedure paves the way for much needed judicial comity between Luxembourg and investor-state tribunals is, however, still very much an open question. 

Barnard & Peers: chapter 10
Photo: ICSID headquarters, Washington DC
Photo credit: icsid.worldbank.org


  1. The post is interesting, but could, it is suggested, do more to disentangle the situation of intra-EU investment treaties and extra-EU investment treaties (and external EU treaties more generally).

    The potential application of Article 267 TFEU in an intra-EU situation potentially makes sense, since investment tribunals applying intra-EU investment agreements are operating in an area where EU law rules (freedom of establishment etc) are in application. Member State courts and ultimately the Court of Justice indeed need to grapple with the correct interpretation of these rules and how they interrelate.

    However, for extra-EU investment treaties the tribunals are not analysing EU law as the law they should be applying but rather as a matter of fact. They need to determine what the domestic law (including for these purposes EU law) means in order to determine whether the EU has acted consistently with its international obligations. That exercise is a different one from the one behind Article 267 which is to ensure consistent interpretation of the EU Treaties and acts of the EU institutions (and their validity). In that sense, it is difficult to see what makes extra-EU investment tribunals different from other international tribunals to which the EU has made itself subject, for example ITLOS, or the WTO Panel and Appellate Body system. These bodies may also (and have had to) determine the meaning of EU legislation in order to determine whether the EU has acted consistently with its obligations. Turning the situation around, it would sit uneasily with the conceptual basis of international adjudication if the CETA Tribunal had to ask the Canadian Supreme Court for its interpretation of Canadian law before it could determine whether Canada had acted consistently with its international obligations.

    Finally, the post does not explain in what sense the Tribunal established by CETA would be a “court or tribunal of a Member State” in the sense of Article 267(2) TFEU. That would seem not to be the case.

  2. Thank you for the detailed comments and suggestions.

    Indeed, the post is a little insensitive to the intra-EU / extra-EU conceptualization of BITs. This is partly because, as I have written elsewhere, because I am not convinced that this distinction is - at least from an EU law perspective - always relevant. It has often been invoked by scholars and the Commission to justify different views on intra-EU BITs and EU investment agreements.

    The application of domestic law as law or fact is a case in point. I don't think anyone would seriously suggest that an investment tribunal's interpretation of EU law would bind domestic courts or the CJEU internally. Rather, as Jenks has pointed out already in 1938, “[the] line between exposition and interpretation is perilously indeterminate, and it would therefore seem to be a mistake to attach undue importance”. Many scenarios might require investment tribunals to engage in an interpretive activity, this could for instance be the case where the validity of a particular contract becomes of relevance or whether or not a company is incorporated in accordance to the laws of a Member State, etc.

    Now, from an EU law perspective, perhaps the appreciation of EU law as a matter of fact might fall outside the scope of article 267 TFEU, but that wouldn't deter an award from being contrary to EU public policy. I would argue that in this respect that, all other things equal, it would have been irrelevant if in Micula it would have concerned US investors. I am aware that Micula was not actually concerned with an 'incorrect' interpretation of EU law, but my point is that a certain appreciation of EU law can lead to incompatibility of the award with EU law, both in an intra-EU and extra-EU context.

    From an international investment law perspective, it appears that EU law is considered irrelevant whether you look at investor-state tribunals established under intra-EU or extra-EU agreements. Eureko, as I point out, is an intra-EU example where EU law was not predominantly considered to be an issue to engage in, i.e. the jurisdiction of investment tribunals concerns the interpretation of the agreement rather than EU law.

    The broader message I tried to convey was that this might open the gates to judicial comity. It is not so much a question of whether tribunals have to or do not have to refer questions. Nor about whether the CJEU must or must not accept tribunals. Instead it might be worth considering whether this might in fact present some sort of a pragmatic solution.

    As to how this pairs with references to Canadian courts, well, this also is a question of normative assessment of whether investment tribunals should or should not refer questions and it was not the purpose to entertain that discussion any more than accepting that this question divides many of us. As far as I am aware investment tribunals can require the support of domestic courts in limited circumstances, which are regulated in national arbitration laws. If these laws were broader and allow questions to domestic courts vis-a-vis the interpretation of domestic courts I am not sure what would deter investment tribunals from making use of that.

    Lastly, as to the investment court. Are you thinking of a particular characteristic of that would render the court different from the tribunal with respect to 267 TFEU? As you see from the blog post I am jumping over that assessment and assume that if that approach is successful, are there remaining challenges under EU law...

    To sum this up, I think we both agree that this topic should be discussed in much more detail and with particular focus on the recent developments in EU investment agreements!