CYIL vol. 10 (2019)

MIRIAMA KISELYOVA CYIL 10 ȍ2019Ȏ rules on independence and impartiality in IBA Guidelines, 86 as well as respective rules on independence, impartiality, and exclusion of conflict of interest in CETA. 87 Eventually, the Court concluded that chapter 8 of CETA is compliant with EU law. 88 5. Application of conclusions from Opinion 1/17 on the EU Singapore IPA As it has been shown, the Court focused on its recent opinion on the assessment of the compatibility of the CETA investment chapter with EU law. Indeed, subsequently, the decision raises a question to what extent the findings in the Opinion 1/17 can be applicable also on other EU investment agreements, such as EU-Singapore IPA. As a starting point, the CJEU’s jurisprudence has strong precedential value and considering the coherent approach of EU investment policy, the texts of CETA investment chapter and EU-Singapore IPA are comparable.The essential differences are only a product of negotiation with different negotiating partners. When we narrow down the comparison to those differences that could be relevant for the application of the Opinion 1/17, it may be concluded that the main relevant provisions are overlapping in the content. These are: (i) applicable law and rules of interpretation, 89 (ii) determination of respondent/notice of intent, 90 (iii) appellate tribunal/procedure of appeal, 91 (iv) final award/award, 92 (v) general exceptions under GATS, 93 (vi) right to regulate, 94 (vii) tribunals, 95 (viii) joint committees. 96 Importantly, there were no statements signed with the EU Singapore IPA, but the equivalent commitment to drawing up rules for SMEs contained Statement 36 is contained in the EU-Singapore IPA. 97 There are no references to IBA rules, but instead, there are annexes on Code of Conduct for Members of the Tribunal, the Appeal Tribunal and Mediators and Code of Conduct for Arbitrators and Mediators. As it results from the above stated, it is possible to conclude that the EU-Singapore IPA is also compatible with EU law Apart from the compliance of CETA investment chapter with EU law, it is also important to (i) note the positive remarks regarding works on future Multilateral Investment Court in para 118 of the Opinion 1/17, (ii) consider whether reference to mutual trust of the Member States Courts, when distinguishing this case from Achmea, confirms the application of Achmea conclusion on the Energy Charter Treaty and (iii) think about potential consequences for extra-EU BITs. 98

86 Opinion 1/17, para 238. 87 Opinion 1/17, para 241, 242. 88 Opinion 1/17, para 245.

89 Article 8. 31 CETA and Article 3.13. 90 Article 8.21 CETA and Article 3. 5. 91 Article 8.28 CETA and Article 3.19. 92 Article 8. 39 CETA and Article 3.18. 93 Article 28.3.2 CETA and Article 2.3.3. 94 Article 8.9 CETA and Article 2.2. 95 Article 8.27 and 8.278 CETA, Article 3.9 and 3.10. 96 Article 26 CETA and Article 4.1. 97 Article 3.21 (5).

98 VAN DAMME, Isabelle and DECLÈVE, Quentin. CETA ISDS Mechanism Compatible with EU Law: What Implications?, International Litigation Blog . Available at: http://international-litigation-blog.com/ceta-isds- mechanism-compatible-with-eu/.

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