Steffen Hindelang

The Autonomy of the European Legal Order

Currently—as the European Union (EU) composes itself to negotiate investment chapters providing for investor-State arbitration in free trade agreements with Canada, Singapore, and India and as it proposes a regulation establishing a framework for managing financial responsibility linked to investor-State dispute settlement—we can witness an intensifying public and non-public debate on the vision, aims, actors and means of the emerging Common European Investment Policy. Surprisingly, the conditions and limits stipulated by the Treaties upon which the European Union is founded, i.e. the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU), have received only selective attention. In this respect, the issue of distribution of competences between the Member States and the Union in the area of foreign investment—including the possibility of providing for investor-State arbitration in future EU investment-related agreements—has more widely been discussed. However, when it comes to the establishment of dispute resolution bodies in international agreements concluded by the EU the concept of the autonomy of EU law has proven to be the crucial touchstone. The role of this concept, mainly developed in a series of opinions of the Court of Justice of the European Union (CJEU), in limiting the Union’s “leeway” in subjecting itself to the current model of investor-State arbitration has so far not sufficiently been explored.

The Day after: Alternatives to Intra-EU BITs

Intra-EU BITs are the dinosaur in the EU’s multi-level legal system. They sit uneasily with EU law, yet they provide an important tool for foreign investors to manage political risk in some EU Member States. When pondering alternative instruments for intra-EU BITs we should accept that differences in protection in EU and international investment law do not necessarily translate into protection deficits. The degree of afforded protection is to some extent a policy judgement. However, there are indeed also deficits of protection in EU law independent of political choice: It is the clarity of the standard of protection afforded by substantive rules in EU law aiming at the protection of foreign investment and their enforcement in some EU Member State courts which are insufficient. This paper suggests, that alternatives to intra-EU BITs should best be developed from existing functional equivalents in EU law, ie substantive standards of protection in EU law should be made more transparent by the way of a ‘restatement’ of the pertinent legal practice. On principle, foreign investors should make use of functioning domestic courts. Where such institutions lack quality, the EU and the EU Member States should work towards their improvement. Meanwhile, a ‘safety net’ should be provided for foreign investors in case domestic courts fail to suspend justice. This ‘safety net’ may take the form of a PCA-administered arbitral forum or that of a ‘Unified Investment Court’.

Refocusing on the Constitution – Approaching Internet Legislation and Regulation through the Eyes of the Constitution: A Research Sketch

If it is true that territorial coercive governmental force remains the hallmark of governance in the internet age then it should be the territorial constitution that directs but also restrains this force. While already considerable thought has been devoted to the issue of how the reading of certain fundamental rights and constitutional principles and the understanding of their underlying values contained in territorial constitutions might have changed due to the emergence of the internet technology and possible resulting changes in social behavior, this study chooses a different, in respect of the internet so far not sufficiently explored avenue. At the heart of this study lies the question of what internet-related legislation and regulation do to constitutions. More precisely, this study wants to look at whether, where and how fundamental rights and constitutional principles (“constitutional issue areas”) have been limited or bolstered by internet-related legislation and regulation (“internet-related norms”). A constitution does not only form governmental legislation and regulation, but governmental legislation and regulation also significantly shape the understanding of principles and beliefs underlying the constitutional issue areas and, in the end, will also alter the reading of the constitutional issue areas itself. This having said it becomes reasonably clear that it is only by identifying such internet-related norms which are able to shape our reading of constitutional issue areas that a society is put in the position to thoroughly discuss underlying principles and beliefs before legislation or regulation tacitly transform, first, our understanding of principles and beliefs and, later on, the reading of the constitutional issue areas. However, this study does not (yet) want to trace how, for example, the incremental expansion of data retention legislation is altering our understanding of the normative constitutional concept of the right to privacy. The primary purpose of this study is a somewhat more modest one: it wants to enable holding this debate by better understanding where, to which extent and in which way internet-related legislation and regulation restrict or bolster constitutional issue areas. This “enabling to debate” shall, though, not be confined to the boundaries of a specific jurisdiction but this debate shall ideally extend across different legal systems allowing for cross-reference and cross-fertilization. In order to achieve this end this study resorts to a comparative approach, categorizing internet-related norms from various jurisdictions into selected constitutional issue areas.