Since 2015, the European Commission (EC) has been advocating the creation of an InvestmentCourtSystem ( ICS ). 1 The establishment of this new dispute resolution mechanism is foreseen in the Comprehensive Economic Trade Agreement ( CETA ) 2 and in the EU
publicly appointed, independent professional judges in public hearings” 5 and introduced the new “InvestmentCourtSystem” in recent trade pacts such as the Comprehensive Economic and Trade Agreement (CETA). 6 As promising as these new developments are, however, much of the discourse on the legitimacy
( ceta ), which includes the creation of a Permanent International Investment Tribunal or InvestmentCourtSystem ( ics ) to replace the traditional isds mechanisms.
It remains to be seen whether the proposed ics will be finally welcomed in ttip negotiations and become a reality.
an InvestmentCourtSystem for CETA and TTIP Lead to Enforceable Awards?—The Limits of Modifying the ICSID Convention and the Nature of Investment Arbitration, (2016)19–4 Journal of International Economic Law , 761–786; Freya Baetens, The European Union’s Proposed InvestmentCourtSystem: Addressing
-death-of-isds ; Louise Woods, “Fit for purpose? The EU’s InvestmentCourtSystem,” Kluwer Arbitration Blog, (blog), March 23 2016, 2018, http://arbitrationblog.kluwerarbitration.com/2016/03/23/to-be-decided/ . See further Bonnitcha, Poulsen, and Waibel, The Political Economy of the Investment Treaty Regime , 30.
future eu investment negotiations by the InvestmentCourtSystem. 5
Until now, the eu has failed to adequately factor in that, as things stand today, the European organization is not in a condition to set up any proper investment arbitration for its foreign direct investment competence. Even if the
the Belgian government in a request for a European Court of Justice opinion on whether the investmentcourtsystem ( ICS ) established in CETA is compatible with EU law. More specifically, an opinion is pending on whether appointing CETA members to the tribunal and the appeals body is consistent
the alleged legitimacy concerns facing ISDS .
5 The EU first referred to the ITS as an “investmentcourtsystem” ( ICS ) in its TTIP Proposal, supra note 1. The recently concluded EU-Singapore FTA also refers to the ITS as the ICS .
6 CETA , Art. 8.29; EU-Vietnam FTA , Art. 15. On
withdrawal of eu Member States. Another consequence is that contracting parties may prefer to conclude agreements based on exclusive competence only, to avoid complications. The forthcoming Opinion 1/17 on the compatibility of the InvestmentCourtSystem provided for in
will provide a clearer
-methodology-en.pdf . 73 Bernasconi-Osterwalder, “Expansion of the Energy Charter to Africa and Asia.” 74 Dreyer, “Brussels Moves Against Intra- EU Investor-state Arbitration Raise Energy Charter Dilemmas.” 75 European Commission, press release, “Commission Proposes New InvestmentCourtSystem for TTIP and