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      Regulatory autonomy and regulatory chill in Opinion 1/17

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          Abstract

          This article analyses the aspect of the Court’s reasoning in Opinion 1/17 that focuses on the regulatory autonomy of the Parties to the Comprehensive Economic and Trade Agreement (CETA) to decide on levels of protection of public interests. The European Court of Justice’s (ECJ) introduction of regulatory autonomy under EU law coincides with the wider debate around ‘regulatory chill’ under international investment law. This article finds the ECJ’s concept of regulatory autonomy to be narrower than that of the regulatory chill hypothesis put forward by critics of investor-state dispute settlement (ISDS). It further analyses the ECJ’s reasoning that the CETA’s investment tribunals do not have jurisdiction to call into question the levels of protection sought by the EU. In so doing, it will critically evaluate the certainty of the ECJ’s promise that there will be no negative effect on public interest decision-making through CETA’s investment chapter. Finally, it will explore the legal consequences of Opinion 1/17 for future awards and investment agreements.

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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
          Assistant Professor, University of Amsterdam, the Netherlands
          Author notes
          Article
          EWLR-4-7
          10.14324/111.444.ewlj.2020.25
          © 2020, Laurens Ankersmit.

          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.2020.25.

          Page count
          Pages: 21
          Categories
          Article
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          L. Ankersmit, ‘Regulatory autonomy and regulatory chill in Opinion 1/17’ [2020] 4( 1): 7 Europe and the World: A law review [21]. DOI: http://doi.org/10.14324/111.444.ewlj.2020.25.

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

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