Ref. Ares(2018)6087220 - 28/11/2018
Outline
• Session 1:
General presentation of the
multilateral investment court project
• Session 2:
Institutional aspects of the
Multilateral Investment Court
• Session 3:
Functioning of the Multilateral
Investment Court
• Session 4:
The appeal mechanism
Session 1
General presentation of the
multilateral investment court
project
Introduction and background
2010 Communication "
Towards a comprehensive
European international investment policy" identifies
challenges to be addressed in the EU's international
investment policy:
•
Transparency
•
Consistency and predictability
•
Possibility to appeal
Introduction and background
2015 Concept Paper "
Investment in TTIP and
beyond – the path for reform" sets the basis for
new EU policy on investment protection:
• Replacement of ISDS by an institutionalised
Investment
Court System (ICS) with a first instance and an appeal
level in EU
bilateral agreements.
• Inclusion of clearer and more precise provisions on
investment protection, including on the right to regulate.
Introduction and background
2015
Trade for all Communication includes the
objective of:
"engaging with partners to build consensus for a fully-fledged,
permanent International Investment Court"
… in order to develop a coherent, unified, and effective policy on
investment dispute resolution in FTAs.
•
CETA and the
EU FTAs with Viet Nam and
Singapore include specific provisions to allow
transition from the ICS to the multilateral court.
Introduction and background
ISDS is included in around 3,000 BITs (almost half
concluded by EU Member States)
Rationale of the multilateral investment court
initiative:
• Need to
reform and improve the current system
• Political momentum and reasons of efficiency call for reform
at
multilateral level
State of play
EU internal developments
• Impact Assessment and public consultation
• Commission proposal
• Council discussions
• Role of the European Parliament
• Involvement of stakeholders: Meeting of 13 April
2018
State of play
EU-external developments
Mandate of UNCITRAL Working Group III:
1. Identify and consider concerns regarding ISDS;
2. Consider whether reform is desirable in light of
any identified concerns;
3. If the Working Group concludes that reform is
desirable, relevant solutions to be recommended
to the Commission (…).
Session 2
Institutional aspects of the
multilateral investment court
project
Institutional structure
• The Multilateral Investment Court could be set up
as a
stand-alone institution or be docked
into an existing framework.
• Existing examples.
• Several elements for consideration including
costs and feasibility.
• Issue for negotiations.
Membership
• The Multilateral Investment Court should be
open to all interested countries.
• Need for an effective and efficient mechanism to
join, possibly based on the
opt-in approach in
the Mauritius Convention.
• Any system must cater for the necessary
flexibilities to ensure adaptability to an evolving
membership and the particular circumstances of
the case.
Financing
•
Membership fees paid by Contracting Parties as
a basic source of financing.
• Amount, distribution and other underpinning
principles of financing will depend on the design
of the Court and hence have to be
negotiated.
• Flexibilities catering for relevant countries'
differences may be desirable, e.g. level of
development.
Session 3
Functioning of the multilateral
investment court
Design and functioning
• First instance and appeal
permanent tribunal
with a
secretariat to support their daily work.
•
Full time salaried adjudicators with
high
qualifications and subject to
strict ethical
requirements.
• Questions relating to the selection and appointment of
adjudicators.
• Rationale for the qualification and ethical requirements.
• Remuneration.
Design and functioning
•
Jurisdiction of the Court.
•
Effective international
enforcement regime.
• Functioning and link to domestic remedies.
• Procedural safeguards.
• Possibility of
user fees.
• Possible provisions to secure access by
SMEs.
Session 4
The Appeal Mechanism
Rationale
• Need for an appeal instance to ensure
consistency and coherence and foster
predictability of case law.
• Positive experiences.
• Limitations of the current mechanisms of
annulment and refusal of awards.
Functioning of the appeal instance
• Design of the Appeal Tribunal:
• Full time adjudicators with long, non-renewable
appointments enjoying security of tenure.
• High qualifications and strict ethical requirements.
• Remuneration of members.
• Secretariat.
• The Appel Tribunal would hear appeals of
decisions issued at first instance.
•
Grounds of appeal.
•
Possibility of remand.