[*= redactions made under Art. 4.1(b)]
[**= redactions made under Art. 4.1(a) third indent]
Ref. Ares(2016)6435856 - 15/11/2016
Ref. Ares(2017)1963547 - 13/04/2017
(TRADE); PETRICCIONE Mauro
Raffaele (TRADE); [*]
(TRADE); GARCIA BERCERO Ignacio
(TRADE); REDONNET Denis (TRADE);
(TRADE); NYMAN Jon (CAB-
MALMSTROM); EICHHORN Nele (CAB-MALMSTROM)
Subject: Meeting with BusinessEurope on the Multilateral Investment Court
Project - 14 November 2016
Summary – initial meeting with Business Europe as Commission continues work on the Impact
Assessment on the MIC. The meeting was to update BE on progress on the MIC, and in
particular on the next steps of the impact assessment. BE raised known concerns on
appointment of judges and asked questions on relationship between ICS in EU FTAS, BITs and
the multilateral court.
COM agreed to
return to discuss the matters more thoroughly with BE committee (possibly to be scheduled
week of 5 December)
In a meeting with Luisa Santos (BusinessEurope, TTIP Advisory Group), COM
presented the state of play of the
Multilateral Investment Court (hereinafter “MIC” or “Court”) project:
− EU-internally: publication of the Inception Impact Assessment (IIA) and launch of
stakeholder consultations and meetings.
− EU-externally: building support on multilateral reform in G20, OECD, Nairobi sessions, and in
the forthcoming Geneva meeting on 13th and 14th December 2016.
In their answers to Luisa Santos’ questions, COM explained that:
− The Investment Court System (ICS) may provide for some interesting ideas for the
discussions on the establishment of the MIC. Nevertheless, not necessarily all features of the
ICS will be replicated in the MIC.
− As soon as it will enter into force, the MIC is conceived to replace the ICS and all other
dispute settlement mechanisms provided in BITs that will be subject to the jurisdiction of
− The multilateral system would apply to disputes under an agreement between countries A
and B when both countries have ratified the convention establishing the multilateral system
and both countries have agreed that the investment agreement between them should be
subject to the multilateral dispute settlement system, either through a negative or positive
list. Ideally, also Member States’ BITs will fall within this scope of application. Nonetheless,
the Commission will not be able to force Member States to subject their BITs to the
multilateral system, this choice depending also on the other Party to the BIT.
− The rules on parallel claims/relation to domestic remedies are likely to need to remain in the
underlying agreement – that would be an issue to be discussed.
− Once the MIC will enter into force, the de facto
case law of ad hoc investment arbitration
tribunals will not be binding on the MIC. As in other areas of international law (e.g. in the
WTO), in the MIC system there will be no rule of stare decisis
. Nevertheless, if the reasoning
developed in previous investment awards is persuasive, it is likely that the Court will take it
into consideration and/or follow it.
In sum, the main concerns/arguments raised by Luisa Santos
− The MIC might face problems in applying different investment treaties, whose substantive
standards may differ significantly. Therefore, she expressed her view that substantive
standards should also be harmonised soon.
− The MIC might replicate the ICS’ rule that the prerogative of appointing the arbitrators is
reserved only to one party, the State, and no longer to investors, as in the traditional ISDS
− As a result of the reform of substantive standards of protection in the latest investment
chapters of EU FTAs, a competition between countries is created. For instance, after CETA,
an EU investor in Canada has stricter rights and conditions than a foreign investor of a
different nationality in the same Canadian market. [**]
emphasised that a crucial turning point for the Commission’s negotiations of FTAs
and work on the MIC will be the CJEU Opinion 2/15 on the EU’s competence to conclude an FTA
with Singapore, which will define the scope of the EU external trade policy.
The meeting concluded with an agreement to have a meeting with the relevant BE committee in
December 2016 before the release of the public consultation questionnaire which would also
give a chance to discuss the broader direction of EU investment policy.
Prepared by [*]
, visa [*]