Procedural Aspects of Investor-State Dispute Settlement: The Emergence of a European Approach?

in The Journal of World Investment & Trade
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Chapters on investor-State dispute settlement (isds) are among the controversial sections of international investment agreements. The chapter situates the evolving approach of the European Union (eu) to isds, and it does so in two steps: (i) It assesses the impact of the main eu actors on the formation of the eu’s investment policy and comments on the current backlash against investment arbitration, which has led the European Commission to engage in a public consultation. (ii) Against that background, the article provides a roadmap through the details of isds draft provisions put forward by eu actors. Its focus is on procedural aspects of dispute resolution (notafbly attempts to curtail options for parallel proceedings and certain types of claims) and on the question of consistency (which continues to prompt debate among treaty-makers).

The Journal of World Investment & Trade

Law • Economics • Politics

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References

11

Reinisch, supra note 7, p. 132.

17

Council of the European Union, supra note 16, para. 14.

23

Reinisch, supra note 7, p. 133.

25

Clodfelter, supra note 7, p. 171.

28

George Monbiot, ‘This Transatlantic Trade Deal is a Full-frontal Assault on Democracy,’ The Guardian, 4 November 2013 <www.theguardian.com/commentisfree/2013/nov/04/us-trade-deal-full-frontal-assault-on-democracy> (5 March 2014).

30

Monbiot, supra note 28.

31

Anthony de Palma, ‘Nafta’s Powerful Little Secret; Obscure Tribunals Settle Disputes, but Go Too Far, Critics Say,’ New York Times, 11 March 2001 <www.nytimes.com/2001/03/11/business/nafta-s-powerful-little-secret-obscure-tribunals-settle-disputes-but-go-too-far.html> (5 March 2014).

33

Monbiot, supra note 28.

34

European Commission, supra note 14, p. 9.

49

Clodfelter, supra note 7, p. 175 speaks of “the single most effective way to reduce inconsistency.”

54

McRae, supra note 47, p. 383 pertinently observes: “Given the essentially bilateral nature of obligations in the field of investment, it is difficult to see how an appeals facility for investor state dispute settlement would bring coherence and integrity into that body of law.”

55

European Commission, supra note 38, p. 4.

58

European Commission, supra note 38, pp. 4–5.

60

European Commission, supra note 38, pp. 4–5.

69

European Commission, supra note 21, final para.

70

As Bischoff, supra note 7, p. 25, notes (in relation to ceta draft clauses mirroring Article 6(2) of the isds Draft), “the parties to a dispute always can agree on a single arbitrator if they want to – but they seldom do so.” He concludes perhaps rather too categorically that “[t]he instrument of a single arbitrator makes only sense if it is included as a default rule for certain small claims to be defined by the agreement. In its current version, one can presume that the sole arbitrator will play no bigger relevance than it did before” (ibid., p. 26).

76

European Commission, supra note 21.

83

European Commission, supra note 38, p. 2.

92

European Commission, supra note 38, p. 8.

102

European Parliament, supra note 18, para. 31.

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