Once considered the cornerstone of European integration, EU free movement law has been subjected to increasing contestation over the years. An expansive interpretation of the four freedoms by the European Court of Justice (ECJ) has progressively turned free movement law into an all-encompassing “economic constitution”, empowering economic actors to generally challenge regulatory measures adopted by EU Member States in pursuance of the public interest. This process has thrown into relief the EU’s multifarious constitutional dilemmas, and ignited a debate which is still far from being settled.
International investment law (IIL) has undergone a similar process. The proliferation of investment treaties and claims from the 1990s onwards has been coupled with a tendency on the part of arbitral tribunals to interpret substantive IIL standards in an increasingly far-reaching manner. IIL has thus also been turned into a powerful instrument for investors to generally challenge regulatory measures passed down by the host State, triggering a “legitimacy crisis” which questions the very existence of the international investment regime.
Both EU free movement law and IIL thus seem to be facing analogous challenges. Both regimes enable private economic actors to challenge regulation pursuing the public interest outside the political process. In so doing, the both threaten to unsettle conventionally accepted boundaries between the market and the State, adjudicative and political institutions, and the inter-/supranational and the national spheres. Yet, despite these similarities, a joint study of the two regimes has hitherto been lacking.
The present project aims at filling the gap thereby left in the literature. It assumes that one of the key reasons why legal scholarship has failed to comparatively engage with these two bodies of law is the prima facie diverging doctrinal conceptualisation of each regime. The project thus draws on functionalist comparative law to go beyond such formal differences. It thus submits that EU free movement law and IIL should be viewed as (at least in part) functionally equivalent: one and the same regulatory measure can, in principle, be challenged under both regimes. Drawing on the comparability established by such functional equivalence, the research thus comparatively scrutinises the balance between economic and non-economic values to which the respective models of adjudication are conducive.
The project thus aims at providing a critical account of the current state of both regimes. In so doing, it strives, inter alia, to shed light on the concrete (de-)regulatory consequences of the ECJ’s Achmea saga, and to lay the conceptual foundations for more critical engagement with different models of inter- and supranational adjudication in the economic domain.
