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TTIP and the Investment Court System

Author : Robert Schwieder

Publisher :

Page : 50 pages

File Size : 26,60 MB

Release : 2017

Category :

ISBN :

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Book Description

In response to the recent outcry against the investor-state dispute settlement (“ISDS”) system, the negotiators to the proposed EU-U.S. Transatlantic Trade and Investment Partnership (“TTIP”) have developed an alternative means of investment dispute resolution: the so-called Investment Court System (“ICS”). News agencies, political leaders, and legal scholars have published myriad reactions to the proposal, many of them mixed. But relatively few have asked whether TTIP's negotiators should consider any alternative solutions to ISDS's problems, or whether any such opportunities even exist. To that end, this Note evaluates the ICS in light of the most cogent critiques lodged against ISDS, before considering three alternative modes of investment dispute resolution: a return to the pre-ISDS era, the adoption of a rule-of-law ratings mechanism, and a reformed and updated version of ISDS. Due to the problems inherent in the design of the ICS, including most notably the possibility that its judges would be beholden to state interests, this Note argues that it presents an imperfect solution to ISDS's critiques. Instead, a revised version of ISDS, updated to incorporate certain cost-reduction strategies, regulatory safeguards, and a multilateral ISDS appellate mechanism, theoretically offers the most promising long-term avenue for dealing with the unique circumstances inherent in investor-state disputes. However, because of the practical and political realities of TTIP, namely the souring of public sentiment towards anything ISDS, the most viable solution open to negotiators is a return to the pre-ISDS era.



Permanent Investment Courts

Author : Güneş Ünüvar

Publisher : Springer Nature

Page : 156 pages

File Size : 28,60 MB

Release : 2020-09-17

Category : Law

ISBN : 3030456846

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Book Description

This special issue focuses on the opportunities and challenges connected with investment courts. The creation of permanent investment courts was first proposed several decades ago, but it has only recently become likely that these proposals will be implemented. In particular, the European Commission has pushed for a court-like mechanism to resolve investment disputes in various recent trade and investment negotiations. Such a framework was included in some free trade agreements (FTAs) and investment protection agreements (IPAs) the European Union (EU) signed or negotiated with Vietnam, Singapore, Mexico and Canada. While it was shelved long before the publication of this Special Issue, the European Commission had also formally proposed a court system during the negotiations for the Transatlantic Trade and Investment Partnership (TTIP) agreement with the United States. The issue of a Multilateral Investment Court (MIC) has also been prevalent at the Working Group III proceedings of the UNCITRAL on investor-State dispute settlement reform, attracting scholarly and public attention.Will these developments lead to the creation of permanent investment courts? How will such courts change the future of international investment law? Will they bring about a real institutional change in adjudicatory mechanisms? Will they introduce a 'hybrid' system, which borrows important characteristics from both arbitration and institutional methods of international adjudication? How will the enforcement mechanisms work, and under which rules of ethics will its adjudicators function and exercise their duties? This special issue brings together leading scholars sharing a common interest in investment courts to address these questions.





Lights and Shadows of the TTIP Investment Court System

Author : Luca Pantaleo

Publisher :

Page : 16 pages

File Size : 47,38 MB

Release : 2016

Category :

ISBN :

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Book Description

This paper offers an evaluation of the TTIP Proposal on the introduction of a bilateral investment court system and carries the readers through elements that are seen as positive change, in comparison to the traditional ISDS, and issues that can be considered challenging and less advantageous as reforms. Such positive changes relate to the composition of the investment court, enhanced transparency of proceedings and opening up to third party interventions, all pointing towards an increased institutionalisation of investment disputes, and taking those out from the 'monopoly' of private parties. Nonetheless, the paper points out that (extraterritorial) enforcement challenges may emerge and borrowing of the enforcement regimes under the ICSID and New York Convention may have investment deterrent implications. It also points out that a bilateral appellate mechanism may not be a viable solution to the vexed question concerning the traditional inconsistency and unpredictability of investment tribunals.



From Bilateral Arbitral Tribunals and Investment Courts to a Multilateral Investment Court

Author : Marc Bungenberg

Publisher : Springer

Page : 213 pages

File Size : 36,81 MB

Release : 2018-10-22

Category : Law

ISBN : 3030011895

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Book Description

This book considers the potential setup for a future Multilateral Investment Court (MIC). The option of an MIC was first discussed by the EU Commission in 2016 and has since been made an official element of the EU Common Commercial Policy. In 2017, UNCITRAL also decided to discuss the possibility of an MIC, and on 20 March 2018, the Council of the EU gave the EU Commission the mandate to negotiate the creation of an MIC. The “feasibility study” presented here is intended to contribute to a broader discussion on the options for a new international court specialized in investment protection. The cornerstones of such a new permanent court are a strict orientation on the rule of law, reduced costs of investment protection, transparency considerations, aspects of consistency in case law, and the effective enforceability of MIC decisions.



The ICSID Convention

Author : Christoph Schreuer (juriste)

Publisher : Cambridge University Press

Page : 1599 pages

File Size : 47,57 MB

Release : 2009

Category : Arbitration and award

ISBN : 0521885590

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Book Description

This is a practice-oriented guide, including text, commentary, tables and index, for anyone dealing with the International Centre for Settlement of Investment Disputes (ICSID).





From Arbitration to the Investment Court System (ICS)

Author :

Publisher :

Page : 31 pages

File Size : 43,99 MB

Release : 2017

Category :

ISBN : 9789284611713

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Book Description

After a public consultation on proposed reforms to investment protection and the investor-dispute settlement framework of the Transatlantic Trade and Investment Partnership (TTIP) with the United States of America, the European Parliament requested the replacement of the traditional arbitration framework with a new court system. The European Commission and Canada subsequently renegotiated the relevant provisions of the Comprehensive Economic and Trade Agreement (CETA) to establish a new investment court system (ICS). The ICS departs substantially from the arbitration model, in particular on the appointment of judges. Procedurally the ICS remains similar to treaty-based arbitration proceedings and retains all the innovations introduced in the early draft of CETA. Those innovations aim, among other things, to prevent ‘forum shopping’ and abuse of the system. Some of the innovations introduced will require further decisions in CETA’s established Committees, such as on the code of conduct and decisions on appellate body judges. Some concerns raised regarding the basis for differences between ISDS and domestic court systems persist in the ICS context. These relate both to the different treatment between foreign and domestic investors, and to uncertainty regarding the compatibility of the ICS system with the principle of autonomy of the EU legal order. On this last point, however, the ICS framework can be distinguished for various reasons from past opinions on the European and Community Patent Court and the EU’s accession to the European Convention on Human Rights.



The European Commission Proposal for an Investment Court System

Author :

Publisher :

Page : 0 pages

File Size : 26,17 MB

Release : 2016

Category :

ISBN :

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Book Description

For both the tribunal of first instance and the appeal tribunal, the TTIP proposal and the agreements with Canada and Vietnam provide that treaty parties would make appointments through a committee.32 In the case of the TTIP proposal, of the 15 judges of the tribunal of first instance, "[f]ive of the Judges shall be nationals of a Member State of the European Union, five shall be nationals of the [...] All the texts provide for a two-stage process that involves, during the first stage: • The state parties paying a retainer of a set amount each month to ensure availability of first instance tribunal members.70 • The parties to the dispute, investor/claimant and respondent, paying the costs of the proceedings.71 The "cost follows the event" rule applies to both the cost of the proceedings as well [...] The process, in all three texts, provides that "[w]ithin 90 days of the submission of a claim [...] the President of the Tribunal shall appoint the Judges composing the division of the Tribunal hearing the case on a rotation basis, ensuring that the composition of the divisions is random and unpredictable, while giving equal opportunity to all Judges to serve."87 Finally, a code of conduct is provid [...] As to the first question, ICSID Convention article 37(2)(b) provides that: "(b) Where the parties do not agree upon the number of arbitrators and the method of their appointment, the Tribunal shall consist of three arbitrators, one arbitrator appointed by each party and the third, who shall be the president of the Tribunal, appointed by agreement of the parties."146 Before concluding that the EU-p [...] ICSID Convention article 39 provides that: "The majority of the arbitrators shall be nationals of States other than the Contracting State party to the dispute and the Contracting State whose national is a party to the dispute." Yet, under the North American Free Trade Agreement Between the Government of Canada, the Government of Mexico and the Government of the United States, 17 December 1992, Can.



The Popular Legitimacy of Investor-State Dispute Settlement

Author : Marius Dotzauer

Publisher : Taylor & Francis

Page : 148 pages

File Size : 15,20 MB

Release : 2023-09-29

Category : Political Science

ISBN : 1000962911

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Book Description

This book offers theoretical arguments and original empirical data on the legitimacy of the investor-state dispute settlement system in the eyes of the general public. The legitimacy of the investor-state dispute settlement (ISDS) system has become a major issue in recent negotiations on new trade and investment agreements, such as the Transatlantic Trade and Investment Partnership (TTIP), the Comprehensive Economic and Trade Agreement (CETA), and the Trans-Pacific Partnership Agreement (TPP). This book considers the remarkable rise of investor-state arbitration, its politicization and the corresponding legitimacy crisis that has induced a political process of ISDS reform. The book applies theoretical arguments about legitimacy perceptions among the mass public and tests these arguments in survey experiments in Germany, France, and the United States to answer the question of whether ISDS reform can be successful. By showing that large parts of the population hold negative perceptions about the current system of private arbitration and believe that an international investment court and domestic courts are more legitimate dispute resolution systems, the book extends the debate on the legitimacy of the ISDS mechanism, which has so far been dominated by conflicting normative claims of supporters and critics. With regard to the academic debate about legitimacy in global governance, the author underlines that the legitimacy perceptions of ordinary citizens must be taken seriously to ensure the sustainability of global governance and international law in the long term. This book will be of interest to academics working in international relations, international political economy, international law, transnational law, authority, politicization, and legitimacy of global governance. It will also be of great use to practitioners in the field of international investment law, including lawyers, and government officials working in international dispute settlement.