CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ EUǧSINGAPORE INVESTMENT PROTECTION AGREEMENT IN THE LIGHT … Relationship with other Agreements, 57 u pon entry into force of the Investment Protection Agreement (i.e. when the last Member State will ratify the agreement) the agreement will replace the 12 existing bilateral investment treaties of EU Members States with Singapore. The BITs will be terminated, including their sunset clauses. The Investment Protection Agreement contains 11 annexes . These are related both to investment protection (indirect expropriation, land expropriation, expropriation, and intellectual property rights, public debt) dispute settlement (Mediation mechanism for disputes between investors and parties, Code of conduct for members of the tribunal, the appeal tribunal and mediators, Rules on public access to documents, hearings and the possibility of third persons to make submissions, Rules of procedure for arbitration, Mediation procedure for disputes between parties and Code of conduct for arbitrators and mediators) as well as institutional provisions (List of Member States BITs to be replaced by the Investment Protection Agreement). Noteworthy is the annex on Public debt. This provision is reflecting the introduction of the so-called collective action clauses (CACs) into Eurobonds issued by eurozone member States. The CACs enable to overvote bondholders at a certain threshold when the restructuring of the state debt is necessary due to financial crisis. Public debt measures are in general exempt from arbitration, save for National Treatment provision. In this relation, it is important to note that the Treaty on European Stability Mechanism is currently under the amendment process, including the intention to introduce so-called single-limb CACs by 2022. 4. CJ EU Opinion setting test for compliance of ICS with EU law As explained above, EU-Singapore IPA was signed before the CJ EU issued its opinion 1/17. 58 Since the CJ EU judgments have precedential character, it is important to analyse this opinion further in order to ascertain whether the same positive conclusions of compliance with EU law may apply to EU-Singapore IPA as well. The autonomy of the EU legal order In the request to the CJ EU Belgium referred to ECHR case 59 and the Patent Court case 60 when expressing doubts whether the autonomy of EU legal order is not endangered by CETA Tribunal by interpretation of EU law when deciding investment disputes. 61 In brief, the Court stated that entering the into agreements with dispute settlement mechanism binding for the EU is not incompliant with EU law, provided that the autonomy of EU law is preserved. 62 In case of CETA, the fact that ISDS is outside EU legal order is not per se incompatible with EU law. The Court reasoned also with the reciprocal nature of CETA and the need to maintain power to enter into international relations. 63 However, such “external tribunal” may not interpret EU law beyond CETA itself (being of EU law) ant its awards may not prevent EU institutions from operating in accordance with the EU constitutional 57 Article 4.12. 58 Opinion 1/17 Accord ECG UE-Canada. ECLI:EU:C:2019:341. Full version available in curia.europa. eu/juris/document/document.jsf?text=&docid=213502&pageIndex=0&doclang=EN&mode=req&dir= &occ=first&part=1&cid=6307965. 59 Opinion 2/13 (Accession of the European Union to the ECHR) of 18 December 2014 (EU:C:2014:2454). 60 Opinion 1/09 (Agreement on the creation of a unified patent litigation system) of 8March 2011 (EU:C:2011:123).

61 Opinion 1/17 Para 46-50. 62 Opinion 1/17 para 106-114. 63 Opinion 1/17 Para 115.

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