Settling Disputes on TSD chapters of EU FTAs: recent trends and future challenges in the light of CJEU’s Opinion 2/15

During the past years, international trade agreements have not only increased in number but also enlarged their scope beyond the obligations of the 1994 WTO Agreement. Since 2005, the European Union (EU) itself has designed a wide strategy to conclude Free Trade Agreements (FTAs) outside the WTO framework, with more than 100 partners. These new kinds of agreements include relatively novel fields such as sustainable development, investment and labour law, that are classified as WTO-plus and WTO-extra rules. Against this background, the chapter focuses on the dispute settlement mechanism (DSM) of the so-called Trade and Sustainable Development (TSD) Chapters included in the most recent FTAs concluded by the EU. After first evaluating the structure and content of the TSD chapters, as well as the dispute settlement procedure (Sections 2–3), attention will be devoted to the passage of the notable CJEU Opinion 2/15, concerning the nature of TSD provisions. Particular focus will be reserved in this respect to the argument by the Luxembourg judges, that conceives TSD substantive obligations as ‘essential elements’ of EU trade agreements (Section 4). The ultimate goal of the present chapter is to explore whether the CJEU’s perspective, adopted in the Singapore Opinion, could contribute to ensuring more enforceable solutions closer to those deriving from classical DSMs.