The note, 134. [2] Karsten Hagel-Sørensen et al (eds),

The question now arises, whether
in the light of that ECJ case law on dispute settlement, EU and Member States
are allowed to include ICS in EU IIAs or FTAs investment chapters. This section
offers a closer examination of the compatibility of ICS with the system of legal
protection guaranteed by the ECJ and  among other issues whether all previously
mentioned conditions are met by the ICS.

An assessment also will be made
whether, in the light of the Court of Justice’s case law, Article 344 TFEU and
the principle of autonomy of the EU legal order represent the limits for the
insertion of an ICS system in future EU investment related agreements. Finally,
it will test the Commission’s belief that the submission of the Union to the WTO
Dispute Settlement mechanism and the negotiations of an adhesion to the ECHR
prove the compatibility of ICS mechanisms with EU primary law, to determine whether
such compatibility is confirmed by EU practice.

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However, despite the
Commission’s intention, it is for the ECJ to have the last word on whether these
agreements should or should not be deemed compatible with EU law. Even though
it is true that the European Patent Court Opinion made it clear that Article
344 TFEU does not prevent Member States from creating a court for settling
disputes between private parties relating to patents, it does not necessarily mean
that the same provision does not apply to a dispute between a State and a
private party1. It
can be questioned if the scope of application of Article 344 TFEU, as stated in
the Mox Plant case, should be applied by analogy to ICS. But obiviously the
ruling of the Mox Plant case is not transposable to ICS, particularly as Article
344 TFEU applies to disputes between Member States. However, there is no certainty
regarding the question of whether the reach of Article 344 TFEU is limited to
disputes between Member States and could not include disputes between a Member
State and an investor2.

1 Supra note, 134.

2 Karsten Hagel-Sørensen et al
(eds), Europe: The New Legal Realism –
Essays in Honour of Hjalte Rasmussen (2010), 393, 395.