From arbitration to the investment court system (ICS): The evolution of CETA rules

15-06-2017

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.

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.