5

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Policy area
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Date

Multilateral Investment Court: Overview of the reform proposals and prospects

28-01-2020

The Council of the European Union has authorised the European Commission to represent the EU and its Member States at the intergovernmental talks at the United Nations Commission on International Trade Law (UNCITRAL), with a view to reforming the existing investor-state dispute settlement (ISDS) system. The latter provides a procedural framework for disputes between international investors and hosting states, and relies on arbitration procedures. However, there have been growing concerns among states ...

The Council of the European Union has authorised the European Commission to represent the EU and its Member States at the intergovernmental talks at the United Nations Commission on International Trade Law (UNCITRAL), with a view to reforming the existing investor-state dispute settlement (ISDS) system. The latter provides a procedural framework for disputes between international investors and hosting states, and relies on arbitration procedures. However, there have been growing concerns among states and stakeholders about the system's reliance on arbitrators, given its lack of transparency, issues over the predictability and consistency of their decisions, and the excessive costs involved. UNCITRAL talks aim to address these concerns by reforming the system. The EU and its Member States support the establishment of a multilateral investment court (MIC), composed of a first instance and an appellate tribunal staffed by full-time adjudicators. UNCITRAL talks on ISDS reform started in 2017. In April 2019, the working group finalised the list of concerns regarding the current ISDS system and agreed that it was desirable to work on reforms. The states then tabled reform proposals that provided the framework for the discussions that started in October 2019. The proposals range from introducing binding rules for arbitrators to setting up formal investment courts comprised of first instance and appellate tribunals. All in all, the proposals reflect two distinct approaches. Some states back the creation of tools – such as a code of conduct and/or an advisory body for smaller economies and small and medium-sized enterprises – to complement the current system. Others favour fundamental changes through the creation of a two-court system with appointed members. The latest round of talks took place in January 2020, and another is scheduled for March/April 2020. Although states are eager to reform the ISDS system, the complexity of the issue is likely to require additional sessions before agreement can be reached.

The settlement of disputes arising from the United Kingdom's Withdrawal from the European Union

17-11-2017

This study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the AFCO Committee, analyses the various jurisdiction options, under EU law and under public international law, in settling disputes arising from the Withdrawal Agreement of the UK from the EU and in the context of the Future Relationship Agreement with the UK. It examines in particular the continued involvement of the CJEU in the new context of the EU-UK relations ...

This study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the AFCO Committee, analyses the various jurisdiction options, under EU law and under public international law, in settling disputes arising from the Withdrawal Agreement of the UK from the EU and in the context of the Future Relationship Agreement with the UK. It examines in particular the continued involvement of the CJEU in the new context of the EU-UK relations and, based on CJEU case-law and previous international agreements, presents the various governance possibilities for these agreements.

Responsibility in Investor-State Arbitration in the EU - Managing Financial Responsibility Linked to Investor-State Dispute Settlement Tribunals Established by EU's International Investment Agreements

03-12-2012

The Lisbon Treaty extends exclusive European Union competence to foreign direct investment (FDI). In this context the issue of dispute settlement will be included in future EU Investment Agreements. For such situations the European Commission has put forward a draft proposal on how financial responsibility could be shared between the EU and/or a Member State (MS). The proposal aims to address possible conflicts that may arise between the EU/Commission and the respective MS when claims are brought ...

The Lisbon Treaty extends exclusive European Union competence to foreign direct investment (FDI). In this context the issue of dispute settlement will be included in future EU Investment Agreements. For such situations the European Commission has put forward a draft proposal on how financial responsibility could be shared between the EU and/or a Member State (MS). The proposal aims to address possible conflicts that may arise between the EU/Commission and the respective MS when claims are brought under investment agreements or chapters concluded between the EU (or the EU and its MSs) and a third state. Moreover, the proposal deals with the representation of the EU or MS in arbitral proceedings. The study provides background under public international law by setting out the responsibility of states and international organisations, and considers the financial reimbursement laws and policies of several federal states. Further analysis is provided on the proposal’s respective provisions on financial distribution, respondent status, settlement and the technical aspects of reimbursement. Particular attention is given to the external competence of the EU in relation to the internal competences of MSs, specifically with regard to standards of treatment. Other issues addressed include executive federalism with respect to allocating financial responsibility and the balance between unity of external representation and MS' interests. The conclusions are largely based on the issue of internal/external competence, acknowledging the importance of the language of future investment agreements and chapters in clarifying some of these technical aspects.

External author

Christian TIETJE, Emily SIPIORSKI and Grit TÖPFER (Law School of University Halle, Germany)

The M23 and Eastern D.R.Congo : An Intractable Problem or an Opportunity to Engage ?

20-11-2012

Renewed violence has caused the displacement of over 500 000 people since April. The creation of the M23 has re-engaged international actors in the conflict in the eastern DRC. The EU considered Joseph Kabila's 2011 re-election 'not credible'. In April, Kabila announced his intention to arrest Bosco Ntaganda. This precipitated events in the North Kivu region, causing a wave of defections and the creation of the M23. The M23 has been accused of war crimes. The deeper cause of the M23 rebellion is ...

Renewed violence has caused the displacement of over 500 000 people since April. The creation of the M23 has re-engaged international actors in the conflict in the eastern DRC. The EU considered Joseph Kabila's 2011 re-election 'not credible'. In April, Kabila announced his intention to arrest Bosco Ntaganda. This precipitated events in the North Kivu region, causing a wave of defections and the creation of the M23. The M23 has been accused of war crimes. The deeper cause of the M23 rebellion is the failure of the 2009 peace agreement. The international community also share s responsibility for this failure. The rapid spread of the M23 highlighted the weakness of the DRC state and prompted accusations of external involvement. In June, an addendum to the interim report of the UN Group of Experts accused Rwanda of backstopping the rebels. Donors reacted by halting the disbursement of military and development aid. The final report accuses Rwanda of commanding the M23 and Uganda of supporting the rebels. The DRC army is also complicit in the violence. International pressure should be applied on all actors and should be complemented by a broader engagement strategy. A political compromis is needed to effectively address conflict in the shorter and longer terms. An informal ceasefire was broken as the M23 advanced on Goma and claimed to have taken the town on 20 November. The ICGLR has hosted regional summits and called for a neutral military force. The international community should search for a new, unequivocal political commitment from all actors to end the conflict.

Lessons Learned from Implementation of the Mediation Directive the Judges’ Point of View

15-04-2011

Differences in application of Directive 2008/52/EC on certain aspects of mediation in civil and commercial matters have brought to light varied loopholes from Member State to Member State. The main obstacles holding back the development of legal mediation are essentially to be found in the practical organisation of mediation and, to a lesser extent, in the overuse of the notion of public policy. This development has also suffered, particularly at cross-border level, from mismatches in the accreditation ...

Differences in application of Directive 2008/52/EC on certain aspects of mediation in civil and commercial matters have brought to light varied loopholes from Member State to Member State. The main obstacles holding back the development of legal mediation are essentially to be found in the practical organisation of mediation and, to a lesser extent, in the overuse of the notion of public policy. This development has also suffered, particularly at cross-border level, from mismatches in the accreditation of the training of mediators. Debate has also raged over whether mediation should be made mandatory or whether financial incentives (such as obliging parties who refuse to enter into mediation to pay the cost of proceedings) should be introduced to encourage the use thereof.

External author

Ivan VEROUGSTRAETE (Cour de justice Benelux et Cour de cassation de Belgique)

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