Investment Court System Archives - Page 2 of 2 - international litigation blog
106
archive,paged,category,category-investment-court-system,category-106,paged-2,category-paged-2,ajax_fade,page_not_loaded,,select-child-theme-ver-1.0.0,select-theme-ver-3.4,wpb-js-composer js-comp-ver-4.12.1,vc_responsive
 

Investment Court System

Potential Implications of AG Sharpston’s Opinion 2/15 on Investment Court System

As mentioned in one of my previous post, the European Union (the EU) has proposed the establishment of a permanent Investment Court System (ICS) as a means to respond to the criticisms against the traditional Investor-State Dispute Settlement (ISDS) mechanisms. The main elements of the reform suggested by the EU Commission are the following: (i) a permanent court composed of a first instance Tribunal and an Appeal Tribunal; (ii) publicly appointed judges; and (iii) publicly-held proceedings and a right to intervene for parties with an interest in the dispute.

On 21 December 2016, Advocate General Sharpston (AG Sharpston)* handed down a reasoned opinion (the Opinion) on the allocation of competences between the EU and its Member States for the conclusion of the EU-Singapore Free Trade Agreement (the EUSFTA). Although the Opinion is not directly related to the issue of the ICS, it can potentially have implications on the establishment and development of this new multilateral international court (in particular the question of “who may establish the ICS“).READ MORE

0

American Bar Association Publishes Opinion on Investment Court System

On 14 October 2016, the Investment Treaty Working Group of the American Bar Association (ABA) published a report (the Report) on the European proposal for an Investment Court System.

As most of you know, the proposal for an Investment Court System emanates from the European Union and aims at replacing the traditional Investor-State Dispute Settlement mechanisms (ISDS). The Investment Court System finds its roots in a public consultation initiated by the European Commission on ISDS in the context of the negotiations for the Transatlantic Trade and Investment Partnership (TTIP). At the time, the European Commission received nearly 150,000 responses, an overwhelming majority of which opposed the traditional ISDS mechanisms that were being contemplated during the TTIP negotiations. Most criticisms viewed the traditional ISDS mechanisms as a threat to democracy, to public policy, to public finance and to the sovereign’s right to regulate. Many also expressed concerns on the independence and impartiality of arbitrators.

In response to those criticisms, the European Commission formulated, in September 2015, a concrete proposal for a new Investment Court System.

While the European Union is currently working on the implementation of the Investment Court System and has recently launched a public consultation on the topic (responses are due by 15 March 2017), I thought it interesting to discuss the views that the ABA expressed on this new international court system.READ MORE

5