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Conflicting Conceptions of Constitutionalism: Investment Protection from the European Union and International Perspectives

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Abstract

International investment law as it is currently being transformed in the European Union (EU) proves to be an ideal test case for assessing global constitutionalism—whether it is in fact occurring and, if so, the direction of this process. While economic rights are protected by the laws of the EU, many of these rights were protected by bilateral treaties before internal mechanisms existed. The EU is now disregarding the protections that exist outside of the normative framework of the EU treaties, resulting in conflicting ‘constitutional’ rights. Following the decision by the Court of Justice of the European Union in Achmea, the dispute resolution provisions in intra-EU investment treaties are now considered incompatible with the laws of the EU. The decision was based on ‘mutual trust’ and ‘sincere cooperation’ between the Member States, pointing to formalized constitutional values. These ideals and their reflection in the changing internal and external positions of the EU towards investor-state disputes speak to perceptions of investors’ rights, and thus imply transforming ideas of constitutionality with respect to those rights. Investment tribunals, convened under international treaties, however, have continued to uphold a different position regarding the specific rights of investors. An inevitable conflict emerges in the protection of similar rights, namely the right to certain standards of treatment and dispute resolution for private investors, revealing an incongruence in the realization of constitutional values. The following article examines more closely the incompatibility of these positions and analyses the consequences of these actions for the progression of a globally-relevant constitutionalism.

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Notes

  1. Roberts (2018), p. 191 (developing an approach to understanding the reform by ‘conceptualiz[ing] investment treaty reform options on three levels: incremental, systemic, and paradigmatic’); Puig and Shaffer (2018), p. 361.

  2. Tuori (2015), p. 21; Weiler (1999), pp. 3 et seq. (discussing the developing form of European constitutionalism prior to the Treaty on the Functioning of the European Union); Walker (2006), p. 29 (reflecting on the ‘situation of deep disagreement over the constitutional conditions under which and even the basic framework of constitutional frames with which we may optimize democratic voice, effective political capacity and respect for diversity, but one of consensus that we must indeed seek to do all of these things’).

  3. Behn (2015), p. 367 (noting that ‘At its most fundamental level, the legitimacy debates in international investment treaty arbitration produce a critical perspective as to whether or not foreign investment disputes should be resolved by international arbitral tribunals at all’); Brower and Schill (2009), p. 471 (‘Such legitimacy concerns affect not only dispute-settlement institutions as a whole, but also inform the self-understanding and the work of those who decide disputes on the international level—in other words, international judges and arbitrators’); Schultz and Dupont (2014), p. 1147; Donaubauer et al. (2018); Franck (2005), p. 1625 (stating already in 2005 ‘[i]f investment treaty arbitration is to fulfill its promise, mechanisms must be implemented to promote greater sensitivity to the public interest and to minimize the risk of inconsistent decisions’); Behn et al. (2018), p. 101 (referencing the reassessment by the state of the ‘actual and perceived utility of the treaties in this area of international law’).

  4. Behn (2015), p. 367; Brower and Blanchard (2014), p. 766.

  5. Li (2018), p. 943.

  6. Nowrot and Sipiorski (2017), p. 265.

  7. Petersmann (2009), p. 532 (providing that ‘The principles of commutative justice, contractual justice, and conventional justice underlying private commercial arbitration differ fundamentally from, and need to be reconciled with, the principles of constitutional justice limiting governments and public national and international courts. The judicial task of settling disputes with due regard to the constitutional rights of citizens and constitutional restraints of governance powers is essential for maintaining an overlapping consensus on principles of justice among states and citizens with competing self-interests and conflicting conceptions of the good life, social justice, and an efficient regulation of the economy’); Petersmann (2008a), p. 780 (identifying distinct constitutional interpretations of economic law by the CJEU, EFTA Court and European Court of Human Rights); Petersmann (2008b), p. 338.

  8. Eureko BV v. the Slovak Republic, Award on Jurisdiction, Arbitrability and Suspension of 26 October 2010, para. 7.

  9. Eureko BV v. the Slovak Republic, Award on Jurisdiction, Arbitrability and Suspension of 26 October 2010, para. 7.

  10. Eureko BV v. the Slovak Republic, Award on Jurisdiction, Arbitrability and Suspension of 26 October 2010, para. 113.

  11. Achmea BV v. the Slovak Republic, Award of 7 December 2012, para. 352.

  12. Frankfurt Higher Regional Court, Case 26 Sch 3/13, Decision of 18 December 2014.

  13. Slovak Republic v. Achmea BV (Case C-284/16), Decision of 6 March 2018, ECLI:EU:C:2018:158, para. 12.

  14. Slovak Republic v. Achmea BV (Case C-284/16), Decision of 6 March 2018.

  15. Slovak Republic v. Achmea BV (Case C-284/16), Decision of 6 March 2018, para. 59; cf. Slovak Republic v. Achmea BV (Case C-284/16). Opinion of Advocate General Wathelet, 19 September 2017, ECLI:EU:C:2017:699, para. 199 (noting that ‘[a] number of legal rules of the BIT have no equivalent in EU law. These are the MFN clause, the clause whereby the Parties undertake to observe their contractual obligations, the sunset clause, and the ISDS mechanism’).

  16. See inter alia, Masdar Solar & Wind Cooperatief U.A. v. Kingdom of Spain, ICSID Case No. ARB/14/1, Award, 16 May 2018, para. 306.

  17. Vattenfall AB and others v. Federal Republic of Germany, ICSID Case No. ARB/12/12, Decision on the Achmea Issue, 31 August 2018, para. 207 (‘Having carried out an interpretation under Article 31 VCLT of the ordinary meaning to be attributed to Article 26 ECT, in its context, and in the light of the object and purpose of the ECT, the Tribunal finds that a Contracting Party to the ECT in Article 26 ECT includes EU Member States and non-EU Member States without distinction. There is no carve-out from the ECT’s dispute settlement provisions concerning their applicability to EU Member States inter se, in particular regarding the opportunity for an EU Investor to pursue arbitration against an EU Member State. Indeed, the terms of Article 26 ECT give not the slightest hint that any such exclusion is possible’).

  18. Slovak Republic v. Achmea BV (Case C-284/16), Decision of 6 March 2018.

  19. CJEU, Press Release No. 52/19, 30 April 2019; Opinion of the Advocate General Bot, Opinion 1/17, Request for an Opinion by the Kingdom of Belgium, 29 January 2019, ECLI:EU:C:2019:72, para. 272 (recommending the CJEU to find for the compatibility of the CETA with EU law).

  20. Tomuschat (1997), p. 37; Dupuy (1993), p. 1; Kekes (1993), p. 27 (defining values as ‘possibilities who realization may makes lives good’); Commission on Global Governance (1995) (recommending ‘the broad acceptance of a global civic ethic to guide action within the global neighbourhood [and] courageous leadership infused with that ethic at all levels of society.’ And further cautioning ‘without a global ethic, the frictions and tensions of living the global neighbourhood will multiply; without leadership, even the best-designed institutions and strategies will fail’); Spijkers (2011), p. 57 (‘Global values were defined as a set of enduring, globally shared beliefs that a specific state of the world, which is possible, is socially preferable, from the perspective of the life of all human beings, to an opposite state of the world. […] The following list of values was proposed [by the author]: human dignity, the self-determination of peoples, peace and security, and social progress and development’).

  21. Fassbender (1998), pp. 616-617 (describing the UN Charter as ‘an authoritative statement of both the fundamental rights and responsibilities of the members of the international community and the values to which this community is committed’ and recognizing the ‘cumulative process’ that revises the understanding of the international system, albeit lacking the desired continuity).

  22. Schwöbel (2010), p. 612.

  23. Peters (2009b), p. 397 (advocating an academic discussion on global constitutionalism ‘in the international legal sphere in order to improve the effectiveness and the fairness of the international legal order’); see also Peters and Armingeon (2009), p. 385.

  24. Peters (2009a), p. 543 (‘the claim that state sovereignty has its source and telos in humanity, understood as the principle that the state must protect human rights, interests, needs, and security, eliminates the basic antinomy between human rights and state sovereignty. There is no incompatibility or clash. It is conceded that human rights need, in order to be effectively enjoyed, some form of power which guarantees them. It is also conceded that, because persons normally live in societies in which their interests may collide, human rights are inherently limited’); Peters (2009b), p. 397 (noting that ‘The normative status of sovereignty is derived from humanity, that is, the legal principle that human rights, interests, needs, and security must be respected and promoted. This normative status is also the telos of the international legal system. Humanity is foundational in a normative sense because states are not ends in themselves, but are composite entities whose justification lies in the fulfilment of public functions needed for human beings to live together in peace and security’).

  25. Raban (2012), p. 408; Zucca (2008), pp. 33–34.

  26. See for example Schwöbel (2010), p. 612 (noting that ‘There is, of course, no single recognized global constitution; rather, there are a number of visions of what a global constitution is and should be and what is spurring constitutionalization in the international sphere. The categorization of the four dimensions of social, institutional, normative, and analogical constitutionalism attempts to bring into focus the prevalent ideas which they entail’); Mogami (2018), p. 29 (noting that ‘The notion of global or international constitutionalism […] has never been unidefinitional. Its definition and description have always caused trouble for both global constitutionalists and their critics’); Mogami (2012), pp. 373–376 (dividing global constitutionalism between the descriptive/cognitive and normative/prescriptive); Fassbender (1998), p. 529; Tomuschat (1997), p. 37; Dupuy (1993), p. 1.

  27. Rosenfeld (2014), p. 199 (ultimately recognizing its beneficial existence, providing ‘even if a particular transnational legal order is not squarely constitutional in nature, it turns out to be preferable to assess its potential and shortcomings in terms of the constitutionalism counterfactual than to do so from the standpoint of other potentially pertinent counterfactuals such as those carved out by the administrative law or the international law paradigm’).

  28. Dunoff and Trachtman (2009); Klabbers et al. (2009); Dobner and Loughlin (2010); Schwöbel (2010); Lang and Wiener (2017); Afilalo and Patterson (2019), pp. 330–331.

  29. Brunnée and Toope (2017).

  30. Kumm (2009), p. 258; Gardbaum (2009), p. 233; Krivenko (2017), p. 77 (noting that ‘it is remarkable that all authors writing on global constitutionalism agree that respect for some human rights is an indispensable part of any, including global or international, constitutionalisation process’).

  31. Sivho (2018), pp. 10, 12.

  32. Peters (2009b), pp. 397–398.

  33. Stone Sweet (2009), p. 621.

  34. See, significantly, Kumar (2017) (indicating that ‘What makes Global Constitutionalism merely a reiteration of various modes of liberalism (i.e. liberal constitutionalism, liberal internationalism and liberal humanitarianism) is both its refusal to recognise the role of the West in the production of global inequality between the Global North and South and its deeply held belief in the fundamental irrelevance of neo/colonialism in the present global legal order as well as in the past’).

  35. Vilhena et al. (2013); Hailbronner (2017), p. 527 (considering that ‘transformative constitutionalism is not a distinctive feature of Southern societies, but part of a broader global trend towards more expansive constitutions that encompass positive and socio-economic rights and which no longer view private relationships apart from all things constitutional’); Kumar (2017) (criticizing the narrow scope of the global constitutional discussion: ‘If countries in the geographical Global South are mentioned, they are mentioned as an aside, not as a focus, and often only to confirm that the “universal” or “global” norms, ideas, rights, and concepts evinced in US and European constitutional systems and law, are coincidentally exactly the same as those in the geographical Global South’).

  36. See for example, Achmea BV v. The Slovak Republic, UNCITRAL, PCA Case No. 2008-13, Decision on Jurisdiction, Arbitrability and Suspension, 26 October 2010, paras. 217-292; Rupert Binder v. the Czech Republic, UNCITRAL, Award on Jurisdiction, 6 June 2007, paras. 59–67; Eastern Sugar BV v. the Czech Republic, SCC Case No. 088/2004, Partial Award 27 March 2007, Final Award 12 April 2007; Electrabel SA v. the Republic of Hungary, ICSID Case No. ARB/07/19, Decision on Jurisdiction, Applicable Law and Liability, 30 November 2012, paras. 4.111-5.60; Micula v. Romania, ICSID Case No. ARB/05/20, Award, 11 December 2013; European American Investment Bank AG (EURAM) v. the Slovak Republic, UNCITRAL, PCA Case No. 2010–17.

  37. Potesta (2009), p. 230; Eilmansberger (2009), p. 387.

  38. Söderlund (2007), p. 455.

  39. Anderer (2010), p. 881.

  40. Wierzbowski and Gubrynowicz (2009), p. 544.

  41. See inter alia, Electrabel v. Hungary, ICSID Case No. ARB/07/19, Award, 25 November 2015, paras. 11 et seq. (providing for the intervention by the European Commission); AES Summit Generation Limited and AES-Tisza Erömü Kft v. The Republic of Hungary, ICSID Case No. ARB/07/22, 23 September 2010, paras. 3.18 et seq.

  42. See Charanne BV and Construction Investments SÀRL v. Kingdom of Spain, SCC Arb. No. 062/2012, Final Award, 21 January 2016, para. 441, http://res.cloudinary.com/lbresearch/image/upload/v1453825171/laudo_final_arb_062_2012_260116_1618.pdf, accessed on 6 August 2019 (in the original Spanish: ‘Literalmente, dicha norma se a acuerdos relativos a controversias entre los Estados Miembros, y no entre una privada y un Miembro’).

  43. See for example, Achmea BV v. The Slovak Republic, UNCITRAL, PCA Case No. 2008-13, Decision on Jurisdiction, Arbitrability and Suspension, 26 October 2010, para. 20; see generally Moskvan (2012), p. 368; Moskvan (2015), p. 101.

  44. Slovak Republic v. Achmea BV (Case C-284/16), Decision of 6 March 2018, para. 34.

  45. Slovak Republic v. Achmea BV (Case C-284/16), Decision of 6 March 2018, para. 34.

  46. Slovak Republic v. Achmea BV (Case C-284/16), Decision of 6 March 2018, para. 34.

  47. See inter alia, Salacuse and Sullivan (2009); Chaisse and Bellak (2015), p. 3; Neumayer and Spess (2005), p. 1567.

  48. Note, for example, that some US Investment Agreements, including BITs with Azerbaijan, Bahrain, Uzbekistan, Croatia, El Salvador, Georgia, Honduras, Jordan and Albania, explicitly note development goals for the host state: ‘agreeing that a stable framework for investment will maximize effective utilization of economic resources and improve living standards’.

  49. Volterra (2010), p. 220.

  50. Garro (2011), p. 268 (noting that BITs and trade agreements include ‘substantive provisions, very broadly worded, that push the governments that are host to these investments to adhere to the rule of law or to protect individual rights’); Jandyal et al. (2011), p. 1053 (arguing that ‘during the second wave, the purpose of BITs changed. While BITs provided a solution to the time inconsistency problem of FDI in the first stage, in the second stage they diffused across similar or peer countries and potentially became established as one of the expected policy mechanisms for countries pursuing market-oriented reforms. Thus, the second wave of BITs is motivated to a lesser extent by national costs and benefits and to a greater extent by the prior adoption of peers and the potential benefits of behaving in a way that is viewed as legitimate and keeping with accepted norms or standards’); Vandevelde (1993), pp. 631, 634 (noting the ideological significance of the second wave of BITs for the United States: ‘U.S. BIT negotiators attached particular significance to the conclusion of BITs both with the former communist States and with Argentina. The Soviet bloc had been among the foremost opponents of international protection for property rights, while Argentina historically had been a firm adherent to the Calvo Doctrine. […] They would serve as a symbol that these States had embraced the promarket economic policy endorsed by the United States, which could, in turn, attract private investment to these States. […] The treaties also would perform the educational function of informing government officials with virtually no experience in operating a market economy of the kinds of policies considered necessary or advisable by private investors’).

  51. Schultz and Dupont (2014), p. 1148.

  52. Schultz and Dupont (2014), p. 1168.

  53. Kingsbury and Schill (2009), p. 1.

  54. See for example, Van Harten (2010).

  55. Slovak Republic v. Achmea BV (Case C-284/16), Decision of 6 March 2018.

  56. Masdar Solar & Wind Cooperatief U.A. v. Kingdom of Spain, ICSID Case No. ARB/14/1, Award, 16 May 2018, paras. 306, 313.

  57. Vattenfall AB and others v. Federal Republic of Germany, ICSID Case No. ARB/12/12, Decision on the Achmea Issue, 31 August 2018, para. 207 (‘Having carried out an interpretation under Article 31 VCLT of the ordinary meaning to be attributed to Article 26 ECT, in its context, and in the light of the object and purpose of the ECT, the Tribunal finds that a Contracting Party to the ECT in Article 26 ECT includes EU Member States and non-EU Member States without distinction. There is no carve-out from the ECT’s dispute settlement provisions concerning their applicability to EU Member States inter se, in particular regarding the opportunity for an EU Investor to pursue arbitration against an EU Member State. Indeed, the terms of Article 26 ECT give not the slightest hint that any such exclusion is possible’).

  58. Schultz and Dupont (2014), p. 1163; see also, for example, International Congress of Jurists (1959) (rule of law as ‘social, economic, educational, and cultural conditions under which man’s legitimate aspirations and dignity may be realized’); Dworkin (1978), p. 259 (considering rule of law to be the protection of moral and political rights of individuals).

  59. Kramer (2007).

  60. Vandevelde (1993), p. 633.

  61. Energy Charter Treaty (1994), Preamble (‘Desiring also to establish the structural framework required to implement the principles enunciated in the European Energy Charter; Wishing to implement the basic concept of the European Energy Charter initiative which is to catalyse economic growth by means of measure to liberalise investment and trade in energy’), see also, critically, Bernasconi-Osterwalder (2018).

  62. Charter of Fundamental Rights of the European Union [2012] OJ C 326, pp. 391–407, Arts. 32, 33, 37; Treaty of the European Union, Art. 3(3).

  63. See in particular, Art. 18 TFEU (2009).

  64. Vidigal and Stevens (2018), p. 488 (describing Brazil’s use of governmental institutions, Focal Points, in implementing trade agreements and preventing formal disputes); Invest Korea, Foreign Investment Ombudsmen, http://m.investkorea.org/m/ik/ombusman.do (explaining the Ombudsmen system commissioned by the President of the Republic of Korea to provide support when grievances arise in investments).

  65. Alvarez (2011), pp. 31 et seq.; Ku (2012), p. 732.

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  1. Department of Socio-Economics, Faculty of Law, University of Hamburg, Hamburg, Germany

    Emily Sipiorski

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Sipiorski, E. Conflicting Conceptions of Constitutionalism: Investment Protection from the European Union and International Perspectives. Neth Int Law Rev 66, 219–236 (2019). https://doi.org/10.1007/s40802-019-00141-7

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