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The expanding  number and density of extra-EU courts and
tribunals gives rise to a number of challenges to the EU legal order and the
ECJ. The main reason for that is autnomy of EU law. The Court has interpreted
it in a way that establishes limits for the EU to participate in IIAs or BITs.
Yet, as discussed later, the principle of autonomy has also been used in order
to determine the conditions under which international law, including the
decision of international courts – can be given effect in the EU legal order.
Since the Court is capable of playing this guardian role, it should not be so
reluctant to allow EU participation in international dispute settlement. Parish
argues that “the Court of Justice should learn to be more relaxed about other
international tribunals adjudicating on EU law. International courts are a
growth industry, and it is inevitable that investment treaty law, international
trade law, and a host of other areas of international law that international
courts have mandates to apply overlap with the expanding ambit of EU law1”. The
ECJ can and does give priority to its own rules and constitutional legal order.
Yet in doing so, the Court should be mindful of the fact that there are many
benefits associated with the EU and its Member States participating in this
wider legal order, keeping in mind the increasing interaction between EU law
and international investment law2.
Although this interaction from time to time turns into tension and can be seen
in all aspects of the EU’s investment policy. EU law is firmly based on the
principle of  primacy which dictates that
“international agreements concluded by the Community Union over
secondary… legislation requires that the latter be interpreted, in so far
as is possible, inconformity with those agreements3.”
Hence, international agreements concluded by the EU require consistent
interpretation of secondary law. EU law is the factor, which may set
aside any existing commitments of the EU Member States, which may exist in the
Energy Charter Treaty (ECT)4,
intra-EU BITs5,
etc. Indeed, conversely to the viewpoint of investment law arbitration from a
public international law approach, there is no reason to treat EU law any
different than any other source of international law6.

1 M. Parish,  International Courts and the European Legal
Order 23 European Journal of International Law(2012) 141.

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2
Ibid.

3 C-448/05 Thomson and Vestel
France 2007 ECR I-2049, paragraph 30.

4 Energy Charter Treaty, Annex 1
to the Final Act of the Conference on the European Energy Charter (Dec. 17, 1994),
34 I.L.M. 381 (1995).

5 H. Wehland,
Intra-EU Investment agreements and arbitration: Is EC law an obstacle?, ICLQ
(2009), p. 297–320;

6 Szilárd Gáspár-Szilágyi, The
Relationship between EU Law and International Agreements. (2015) 52(4) CMLR
1059.

The expanding  number and density of extra-EU courts and
tribunals gives rise to a number of challenges to the EU legal order and the
ECJ. The main reason for that is autnomy of EU law. The Court has interpreted
it in a way that establishes limits for the EU to participate in IIAs or BITs.
Yet, as discussed later, the principle of autonomy has also been used in order
to determine the conditions under which international law, including the
decision of international courts – can be given effect in the EU legal order.
Since the Court is capable of playing this guardian role, it should not be so
reluctant to allow EU participation in international dispute settlement. Parish
argues that “the Court of Justice should learn to be more relaxed about other
international tribunals adjudicating on EU law. International courts are a
growth industry, and it is inevitable that investment treaty law, international
trade law, and a host of other areas of international law that international
courts have mandates to apply overlap with the expanding ambit of EU law1”. The
ECJ can and does give priority to its own rules and constitutional legal order.
Yet in doing so, the Court should be mindful of the fact that there are many
benefits associated with the EU and its Member States participating in this
wider legal order, keeping in mind the increasing interaction between EU law
and international investment law2.
Although this interaction from time to time turns into tension and can be seen
in all aspects of the EU’s investment policy. EU law is firmly based on the
principle of  primacy which dictates that
“international agreements concluded by the Community Union over
secondary… legislation requires that the latter be interpreted, in so far
as is possible, inconformity with those agreements3.”
Hence, international agreements concluded by the EU require consistent
interpretation of secondary law. EU law is the factor, which may set
aside any existing commitments of the EU Member States, which may exist in the
Energy Charter Treaty (ECT)4,
intra-EU BITs5,
etc. Indeed, conversely to the viewpoint of investment law arbitration from a
public international law approach, there is no reason to treat EU law any
different than any other source of international law6.

1 M. Parish,  International Courts and the European Legal
Order 23 European Journal of International Law(2012) 141.

2
Ibid.

3 C-448/05 Thomson and Vestel
France 2007 ECR I-2049, paragraph 30.

4 Energy Charter Treaty, Annex 1
to the Final Act of the Conference on the European Energy Charter (Dec. 17, 1994),
34 I.L.M. 381 (1995).

5 H. Wehland,
Intra-EU Investment agreements and arbitration: Is EC law an obstacle?, ICLQ
(2009), p. 297–320;

6 Szilárd Gáspár-Szilágyi, The
Relationship between EU Law and International Agreements. (2015) 52(4) CMLR
1059.

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