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This is a bit complex, so let’s untangle this (thread)
1) under the current case law (as mentioned by Allie + Achmea and the CETA Opinion will add to this) the autonomy of EU law is guaranteed by the treaties, which means only the ECJ can judge on it with binding effect for the EU. Want to change it? It needs a treaty change.
2) But this relates to EU law. Which raises a first question: is the WHOLE withdrawal agreement EU law? Arguable. But the Commission does not think so - or else the arbitration mechanism in the WA would be a bit weird. And I consider this to be the better view.
3) So the real question is: what exactly will the arbitration tribunal rule on. “The backstop” does not really help, because there’s definitely some EU law in there, and other stuff that arguably is not.
