Protection of the rule of law in the European Union through investment treaty arbitration: is judicial monopolism the right response to illiberal tendencies in Europe?

• Autores: Wojciech Sadowski
• Localización: Common market law review, ISSN 0165-0750, Vol. 55, Nº 4, 2018, págs. 1025-1060
• Idioma: inglés
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• Resumen

  • Assaults on the independence of national courts in some Member States pose a threat to the rule of law and may impair the enforcement and uniform application of EU law. In order to counteract this threat, the EU should consider supporting alternative mechanisms of enforcement of the rule of law, including those available to individuals. It is submitted here that investment treaty arbitration, despite its flaws, could play an important role in this respect, due to its inherent features making it significantly more resilient to attacks from illiberal or autocratic governments than national courts. This article is also critical of the ECJ’s recent Achmea judgment. It argues that the concept of redundancy, as used in engineering to describe duplication of critical components or functions of a system with the intention of increasing reliability of the system in the event of failure, offers a better response to current threats to the rule of law than strengthening of the judicial monopoly of the ECJ and national courts under Article 19 TEU.