European Union: the (New) Investment Court System

Par Robert Robillard - 22 septembre 2015

This blogpost originally appeared on rbrt.ca.

Here is a recent European Commission press release that should be of interest to anyone involved in international trade.

« The European Commission has approved its proposal for a new and transparent system for resolving disputes between investors and states – the Investment Court System.

The Investment Court System would replace the existing investor-to-state dispute settlement (ISDS) mechanism in all ongoing and future EU investment negotiations, including the EU-US talks on a Transatlantic Trade and Investment Partnership (TTIP).

The proposal for an Investment Court System builds on the substantial input received from the European Parliament, Member States, national parliaments and stakeholders through the public consultation held on ISDS. It is intended to ensure that all actors can have full trust in the system. Built around the same key elements as domestic and international courts, it enshrines governments’ right to regulate and ensures transparency and accountability.

[…]

Main elements of reform

The proposal for the new court system includes major improvements such as:

  • a public Investment Court System composed of a first instance Tribunal and an Appeal Tribunal would be set up;
  • judgements would be made by publicly appointed judges with high qualifications, comparable to those required for the members of permanent international courts such as the International Court of Justice and the WTO Appellate Body;
  • the new Appeal Tribunal would be operating on similar principles to the WTO Appellate Body;
  • the ability of investors to take a case before the Tribunal would be precisely defined and limited to cases such as targeted discrimination on the base of gender, race or religion, or nationality, expropriation without compensation, or denial of justice;
  • governments’ right to regulate would be enshrined and guaranteed in the provisions of the trade and investment agreements.
[…]

Next steps

This is not the end of the process. The Commission will now have discussions with the Council and the European Parliament. Once the text of the proposal has been discussed, it will be presented as an EU text proposal in the EU-US trade talks and will be used in other ongoing and future negotiations.

Towards an International Investment Court

Finally, in parallel to the TTIP negotiations, the Commission will start work, together with other countries, on setting up a permanent International Investment Court. The objective is that over time the International Investment Court would replace all investment dispute resolution mechanisms provided in EU agreements, EU Member States’ agreements with third countries and in trade and investment treaties concluded between non-EU countries. This would further increase the efficiency, consistency and legitimacy of the international investment dispute resolution system. »

More information is available here.

Robert Robillard, Ph.D., CPA, CGA, Adm.A., MBA, M.Sc. Econ., M.A.P.
Senior Partner, RBRT Inc.
514-742-8086; robertrobillard « at » rbrt.ca
www.rbrt.ca

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