Les procédures d’arbitrage dans les accords d’investissement de l’Union européenne. L’enjeu des traités transatlantiques

Making use of the exclusive competence for international investment conferred by the Lisbon Treaty the European Union is now engaged in the negotiation of bilateral investment treaties within different regions. According to the Commission, these treaties will carry an ambitious set of rules combining liberalization of trade in primary, secondary and tertiary sectors, regulatory convergence and investment protection. These new treaties are also designed as models to replace the numerous investment treaties previously concluded by the Member states of the Union. Among these initiatives the transatlantic negotiations raise the most important challenges because of their ambition and the great volume of trade and investment covered. Launched without any transparency these negotiations have triggered strong concerns within political circles and civil society, one of the most important fears being created by the proposed introduction of an ad hoc system of investor-state arbitration to enforce the treaty provisions. In the face of strong opposition the Commission has since tried to amend its course proposing now a permanent court of arbitration, with an appeals procedure. Taking into account the relevant decisions of the European Court of Justice, the article examines the problems that arise from the creation of a privileged access to justice for foreign investors only, which allows them to claim damages for the exercise of regulatory powers by the Union and its Member States. Can it really be established that such a system is necessary among countries having highly developed systems of law backed by an independent judiciary? Can it be considered compatible with the principle of equal access of citizens to justice? Could it be prejudicial to the supremacy of European Law and the prerogatives of the European Court of Justice which are strong values for the European integration process? The conclusions of the article offer a critical perspective recommending the renegotiation of the European-Canadian Treaty (CETA) et the elimination of investor-state dispute settlement from the EU-US negotiations (TTIP).