Policymaking by Judicial Fiat in the EU

The CJEU Decisions (as defined in this article) have all but put paid to investment protection by way of international arbitration in an intra-EU context. The import of the CJEU Decisions – as it has been interpreted – has regularly been disallowed by international tribunals, annulment committees and (extra-EU) national courts. Still, such judicial bodies have not had reason to explore the multiple concerns on many levels that are raised by the CJEU Decisions considering their having been tasked with the resolution only of those issue(s) that have been submitted by the parties and which are, additionally, dispositive for their resolution in any given instance. And, as a consequence, it stands to reason that the wealth of commentary that has been generated by the CJEU Decisions has also, by and large, limited itself to discuss the reasoning of the CJEU and of national courts of Member States and international arbitration tribunals. This article seeks to undertake a wider examination of a plurality of aspects of international and private law that are raised by the CJEU Decisions. The conclusion that this examination leads to is that the CJEU Decisions represent pronouncements on the desirable policy – in the Court’s view – on intra-EU investment protection by way of post-factum judicial process, rather than on any disciplined application of principles of international law. By the same token, the article stresses the importance of reserving the adoption of such policy decisions to the parliamentary assemblies of the EU and its Member States.