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
some form of ISDS exists, but only if there is a systemic overhaul to many of the features that are central to how ISDS currently operates. The EU’s proposal for a multilateral court of first instance and appellate review is a key example, and is virtually identical to the investmentcourtsystem
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
whether the provisions of the
eu -Canada Comprehensive Economic and Trade Agreement (‘
’) regarding the InvestmentCourtSystem (‘ ics ’) are compatible with eu law.
Based on this previous case-law on the principle, it is possible that the cjeu would find that the fra or wa