In contrast with the ECHR, the ECJhas always accepted the WTO Dispute Settlement mechanism. However, the WTODispute Settlement mechanism is distinguishable from the ICS mechanism with regardto three important features.
First, it is known that the WTO mechanism does notprovide for an individual complaint mechanism for private individuals. Second,in a WTO context, where a violation of the WTO agreements has been established,there is room for diplomatic negotiation1.Third, even though the EU is a member of the WTO, and thus is bound to fullyimplement the reports adopted by the WTO Appellate Body, the ECJ has denied themdirect effect under EU law2.Consequently, neither WTO law nor the decisions of the WTO Appellate Body can beenforced through EU law. By contrast, in the existing investment arbitrationsystem or in the proposed ICS, awards must be applied and complied with. Thus,the respondent Member State must enforce awards delivered by the IC3.The same would apply to the EU in the future.
Therefore, the WTO Dispute Settlementmechanism fundamentally differs from the ICS, because of the means ofenforcement.Similar to the situation in thecontext of WTO law, it has been proposed that, in order to overcome the negativeconsequences of ICS on the principle of autonomy, remedies available to a foreigninvestor should be limited. Thus, the ECJ would remain “competent to determine– de jure and de facto – the legality of the acts of EU institutions under EU lawas required in Opinion 1/00 on the establishment of a European Common Aviation Area4.However, such an outcome would greatly undermine the protection of foreign investors.The examples of the ECHR and the WTO Dispute Settlement mechanism do notconstitute evidence that the inclusion of an ICS mechanism in future is in linewith EU law. It is true that EU trade instruments can be evaluated before the WTODispute Settlement mechanism, however, the ECJ has counterbalanced this externalevaluation by denying direct effect to WTO law in the EU legal order. As regardsthe ECHR, the Opinion 2/13 only proves that the ECJ is still strongly determinedto preserve the EU legal order from any kind of external control.
1 Catherine A. Rogers, ApparentDichotomies, Covert Similarities: A Response to Joost Pauwelyn, 109 AJILUnbound 294, 298 (2016).2 Ibid.
297.3 Supra note 13, Article 30, TTIPdraft text.4 Opinion 1/00 of the Court 18April 2002, ECLI:EU:C:2002:231.