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BRIEFING BOOK
FOR COMMISSIONER C. MALMSTROM
16TH ACP- EU JOINT MINISTERIAL TRADE COMMITTEE
Albert Borschette Conference Centre
Meeting room A-0
26 October 2018, 10:00 – 13:00
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TABLE OF CONTENTS
Part 1 - Briefing following agenda items
5 (v) EU's trade agenda with third parties ............................................................................. 49
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5 (v) EU's trade agenda with third parties
The ACP Lead Chair will pass the floor to you to give a state of
play of
the EU's initiative on a future Multilateral Investment Court.
SPEAKING POINTS
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b. EU initiative on a future Multilateral Investment Court
Last year, we spoke about the initiative of a multilateral court for
the resolution of investment disputes. A court that would be open to
all interested countries and operate based on the principles of
permanency, independence, accountability and efficiency, which
underpin other respected international courts and tribunals.
This project is moving forward. The United Nations Commission
on International Trade Law (UNCITRAL) is looking look into a
possible reform of Investor-State Dispute Settlement (ISDS).
Considering UNCITRAL's significant advantages in terms of
transparency, openness and accessibility, the Commission is
hopeful that discussions will deliver a satisfactory outcome in
reasonably good time.
I firmly believe that this initiative could provide a real and effective
solution to the problems afflicting the current fragmented system of
ISDS and would address the many concerns expressed on its
legitimacy, accountability and impartiality. Such a global system is
also likely to be a more efficient solution than the coexistence of a
multitude of bilateral investment dispute resolution mechanisms.
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DEFENSIVES MULTILATERAL INVESTMENT COURT
What would an actual Multilateral Investment Court look like? What would be its main
features?
What we have in mind is a first instance tribunal with an appeal. Judges would be full
time and have permanent appointments. A secretariat would be required, but it may be
possible to build this onto existing secretariats. Effective enforcement would be vital. But
of course, all of this is to be discussed and negotiated.
How would membership work for a Multilateral Investment Court?
To become a member, interested countries would at any time be able to adhere to the legal
instrument which has formally established the court. That is the way membership of other
international courts happens. Expansion of membership would require adjustments to the
number of judges as well as the supporting secretariat to reflect the increased coverage of
the court.
What about the costs of establishing and running of such a multilateral permanent
investment court system?
This will depend on a number of factors that are to be negotiated, such as the court's
concrete design, methods of functioning, size and any future arrangements relating to
possible user fees or salaries. The cost would be divided between the Contracting Parties
and several formulas should be studied so that countries contribute according to their level
of development or depending on how often they use the court.
What about the costs for developing countries of joining such a new multilateral system?
We are conscious of this particular aspect. And in our view, we should also aim at
agreeing on a repartition of costs that takes into account, as much as possible, the
particular situation of each member country, such as its level of development, the number
of its investment agreements covered or its investment flows and/or stocks.
A criticism commonly made to the current investment dispute settlement system is that
developing or transition economies do not always have the resources and legal expertise to
defend themselves effectively. Have any thoughts been given to this aspect in your
deliberations on the multilateral investment court?
This is clearly also an aspect that we will be exploring with other interested countries. In
that context, there are examples of centres that provide legal assistance to developing
countries (such as the Advisory Centre on WTO Law – ACWL) and that could serve as
potential models for thought.
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