Abstract
The status of Member States international agreements under EU law is a somewhat classic question of EU external relations law. The relation between MS international commitments and the obligations stemming from their membership to the EU raises issues of high constitutional relevance for the EU legal order. In essence, this problems ultimately calls into question the role of the Member States as international legal actors, as well as the EU’s own legal actorness as a hybrid subject which is, de iure and de facto, gradually eroding the MS’ legal space on the international plane. From this perspective, one of the – intended or unintended – questions (re)opened by Opinion 1/17 is the legality under EU law of MS extra-EU BITs. As is well-known, such legality was put into question and has raised a fierce debate in the aftermath of the coming into force of the Treaty of Lisbon. The debate culminated in the adoption of a so-called Grandfathering Regulation, which allowed the MS to (provisionally) maintain in force their existing BITs, and even conclude new ones under certain conditions. However, the vast majority of such BITs all include a traditional ISDS. In Opinion 1/17, the ECJ seems to have given some signals as to the incompatibility with EU law of old style ISDS. Would that mean that MS extra-EU BITs featuring such ISDS are incompatible with EU primary law? If yes, would the MS be able to invoke Article 351 TFEU by analogy? Is the protection afforded by this provision sufficient and adequate? The aim of this seminar is to answer these questions and shed light on the present and future status of MS extra-EU BITs under EU law in the wake of Opinion 1/17.
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