CourtSystem (ICS) 1 under the Transatlantic Trade and Investment Partnership (TTIP) had to please more than just the ‘cabbage’ and the ‘goat’. Besides the clear split between civil society’s opposition to investor State dispute settlement (ISDS) and the corporate world’s support for it, 2 there is
in terms of the methodology and the impact, of the investment chapter the European Union (EU) recently proposed for the Transatlantic Trade and Investment Partnership (TTIP) with the United States, focussing on the exceptions and the InvestmentCourtSystem (ICS). Namely, it questions why the EU is
This brief comment focuses on a point that Colin Brown does not expressly mention in his keynote, at least in the direct context of the proposed mic. That is, the MIC’S compatibility with EU law. In this context the Opinion of Advocate General Bot regarding Opinion 1/17 on the compatibility of the investment court system (ICS) as contained in CETA is discussed.
This article compares the recently published 2018 Dutch model bilateral investment treaty text (2018 Model bit) and the former 2004 version. The changes to the 2018 Model BIT reflect the reaction by European Union (EU) Member States to the increasing number of investor-state disputes against them, the general backlash against free trade agreements (FTA), and the CJEU’S decision in Achmea. Furthermore, the drafters of the new Dutch Model bit carefully took into consideration the framework of the EU-Canada Comprehensive Economic and Trade Agreement (CETA) and the European Commission’s proposal for the establishment of an Investment Court System (ICS) as a substitute for the current investor-state dispute settlement system (ISDS). As a result, the 2018 text incorporates significantly stricter provisions than the ones of the former version.
With Opinion 1/17, the Court of Justice of the European Union (CJEU) approved the Investment Court System (ICS) contained in the Comprehensive Economic Trade Agreement (CETA) between the EU and Canada. This means that the EU can proceed with the ratification process of the investment protection part of CETA and the other free trade agreements it has concluded, and which contain a similar ICS. However, as the author illustrates, the approval of the ICS is conditioned by a complete isolation of EU law from international investment law. More specifically, the CJEU made clear that the ceta tribunals operate outside the EU legal order and have no power to interpret or apply EU law. At the same time, the CJEU highlighted the importance that the ceta Parties adopt supplemental rules for reducing the financial burden for access to the ICS for small and medium-sized enterprises (SMES). Additionally, the CJEU rejected the currently existing possibility that binding joint interpretations of the ceta Parties could have retroactive effect. In sum, the approval of the ICS by the CJEU enables the European Commission to continue to develop the multilateral investment court (MIC) within the uncitral Working Group iii as long as it follows the blueprint of the CETA ICS.
started replacing ISDS in all its trade and investment negotiations with a permanent ‘InvestmentCourtSystem’. 87 The final goal of the EU is thus to merge in the future all bilateral and potentially plurilateral courts into the MIC. The European Commission envisages the MIC as an institution analogous
concludes. These courts will eventually merge and lead to the establishment of a multilateral investmentcourtsystem. 203 The eu initiative was officially presented to the us as part of their ongoing negotiations of the Transatlantic Trade and Investment Partnership (“ ttip ”). Had the us adopted the
a new InvestmentCourtSystem, we are breaking new ground. The new InvestmentCourtSystem will be composed of fully qualified judges, proceedings will be transparent, and cases will be decided on the basis of clear rules. In addition, the Court will be subject to review by a new Appeal Tribunal
Ratification Saga: The Demise of ISDS in EU Trade Agreements?’ Arizona Legal Studies Discussion Paper No 17–10 < https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2974439 > accessed 22 May 2018. 3 See August Reinisch, ‘Will the EU’s Proposal Concerning an InvestmentCourtSystem for CETA and TTIP Lead to