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      Values and objectives of the EU in light of Opinion 1/17: ‘Trade for all’, above all

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          Abstract

          In Opinion 1/17 the Court of Justice of the European Union (CJEU) ruled that the new Investment Court System (ICS) in the Canada–EU Comprehensive Economic and Trade Agreement (CETA) is compatible with the EU constitutional framework. This article examines the CJEU’s analysis of the ICS in its Opinion through the prism of EU values and objectives. Given the judicial nature of the ICS, the article unfolds around the concept of the rule of law. The scope and the content of this core EU value are considered under both EU law and the European Convention on Human Rights (ECHR). In particular, the ICS is analysed in light of the two core rule-of-law requirements: equal treatment and the independence of courts, enshrined in Articles 20 and 47 of the Charter of Fundamental Rights (CFR). Importantly, in Opinion 1/17 the CJEU for the first time applied Article 47 CFR to a court outside the EU judicial system. While the CJEU ruled that the ICS complies with the CFR rule-of-law criteria, this article argues that it nevertheless falls short of the rule-of-law standards required for judicial bodies under EU law. The article demonstrates that the CJEU prioritises free and fair trade as the CETA’s core objective, rather than the rule of law, and endorses the ICS as the conditio sine qua non of guaranteeing such trade. The Court’s findings have wider consequences for the rule of law in international law as the EU continues to pursue the establishment of a Multilateral Investment Court (MIC).

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          Author and article information

          Journal
          EWLR
          Europe and the World: A law review
          UCL Press
          2399-2875
          03 July 2020
          : 4
          : 1
          Affiliations
          [1 ]Assistant Lecturer, Canberra Law School, University of Canberra, Australia; PhD Candidate, Centre for European Studies, Australian National University, Australia; Guest Researcher, St. Louis University, Brussels, Belgium
          [2 ]Professor of EU Law, Jean Monnet Chair, St. Louis University, Brussels, Belgium; Distinguished Guest Visiting Professor, University of Canberra, Australia; Senior Guest Researcher, METRO, University of Maastricht, the Netherlands
          Author notes
          Article
          EWLR-4-6
          10.14324/111.444.ewlj.2020.24
          © 2020, Ivana Damjanovic and Nicolas de Sadeleer.

          This is an open access article distributed under the terms of the Creative Commons Attribution Licence (CC BY) 4.0 https://creativecommons.org/licenses/by/4.0/, which permits unrestricted use, distribution and reproduction in any medium, provided the original author and source are credited • DOI: https://doi.org/10.14324/111.444.ewlj.2020.24.

          Page count
          Pages: 24
          Categories
          Article
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          I. Damjanovic, N. de Sadeleer, ‘Values and objectives of the EU in light of Opinion 1/17: “Trade for all”, above all’ [2020] 4( 1): 6. Europe and the World: A law review [25]. DOI: https://doi.org/10.14324/111.444.ewlj.2020.24.

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          Europe and the World: A law review
          Volume 4, Issue 1

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