After a long journey, the Court of Justice of the European Union (CJEU) finally opened to an external system of judicial review. Indeed, despite the CJEU's historically notorious lack of openness towards an Investment Court System (ICS), a positive attitude was expressed in the opinion (C-1/17). This new attitude assumes a high degree of relevance in the discussions for a reform of the current Investor-State Dispute Settlement mechanism (ISDS), whose recursive criticalities will be by this paper investigated. In relation to the latter, the effectiveness of the proposed reforms will be analysed to contribute to the discernment as to which of the reform alternatives would be most effective.
The analysis that will be carried out will begin by illuminating points of conflict with the interests involved in the current system. Consequently, the reforms proposed and currently being negotiated to resolve these issues will be analysed in order to (i) verify the manner in which they propose to offer a solution to the aforementioned criticalities; and (ii) assess which of the reform alternatives is best suited in terms of effectiveness and associated risks both in terms of coordination with the existing system and scope innovativeness.
In framing the reform framework under negotiation, the analysis will devote particular attention to the debate on the most suitable of the alternatives between (i) the creation of a stand-alone court of appeal and (ii) the creation of a two-tier 'multilateral investment court' (MIC).
I. Introduction
After a long journey, the Court of Justice of the European Union (‘CJEU’) finally opened to an external system of judicial review.1 Indeed, despite the CJEU's historically notorious lack of openness towards an Investment Court System ('ICS'), a positive attitude was expressed in the opinion (C-1/17).2 This new attitude assumes a high degree of relevance in the discussions for a reform of the current Investor-State Dispute Settlement mechanism (‘ISDS’),3 whose recursive criticalities will be by this paper investigated. In relation to the latter, the effectiveness of the proposed reforms will be analysed to contribute to the discernment as to which of the reform alternatives would be most effective.
The analysis that will be carried out will begin by illuminating points of conflict with the interests involved in the current system. Consequently, the reforms proposed and currently being negotiated to resolve these issues will be analysed in order to (i) verify the manner in which they propose to offer a solution to the aforementioned criticalities; and (ii) assess which of the reform alternatives is best suited in terms of effectiveness and associated risks both in terms of coordination with the existing system and scope innovativeness.
In framing the reform framework under negotiation, the analysis will devote particular attention to the debate on the most suitable of the alternatives between (i) the creation of a stand-alone court of appeal and (ii) the creation of a two-tier 'multilateral investment court' ('MIC').4
II. The rationale underpinning the reform
ISDS, in essence, allows foreign investors to initiate legal proceedings against a sovereign State in the event of an alleged breach of commitment established by a previous agreement. Legal cases are adjudicated by an arbitration panel jointly selected by the conflicting parties on an ad hoc basis.5 The heightened international relevance of ISDS is as evident as the need for its reform, which has been called for since 2004, when an appeal mechanism was first proposed in response to various system criticisms.6 Currently, the International Trade Law Working Group (‘WG III’) of the United Nations Commission, which was given a broad mandate,7 is discussing a reform that may involve considerable changes to the current ISDS system.8
The reasons underlying the need for ISDS reform are numerous9 and both substantive and procedural in nature.10 Some of the most frequently cited reasons for reform include11:
(i) Consistency and predictability of arbitral decisions12: the lack of uniformity in arbitral decisions is a decisive element, leading to many discussions about arbitral awards unfairness and lack of legal certainty.13 These problems may occur in three main scenarios: (i) when, under the same factual circumstances, the final decision reached differs from case to case; (ii) when, in interpreting the same legal provisions, the standards and conclusions reached by arbitrators differ (which is often the case in practice, especially with respect to standards referring to minimum standards of treatment, i.e. fair and equitable treatment); and (iii) when different courts attain inconsistent interpretations of treaty provisions, when the same language is found in different treaties.14
(ii) Treaty interpretation: the States’ desire to be able to influence treaty interpretation in a binding manner has always been expressed, but in practice, this has often had less effect than expected.15 Among the various desiderata accordingly submitted to the WG III,16 States have de iure condendo proposed to provide for the possibility for parties to the treaty to issue a joint interpretative declaration, which would be binding on arbitrators for the application of the involved rules. This is considered by many17 to be necessary to prevent arbitrators from creating unexpected, divergent interpretations of the same provisions.18
(iii) Impartiality and independence of arbitrators: the lack of impartiality and independence of arbitrators is one of the most debated issues.19 These criticisms are mainly based on (i) the parties' power to appoint arbitrators, (ii) the ability of arbitrators to also act as parties’ advisors by creating ‘familiarity’ (so-called ‘double-hatting’), and (iii) the parties' practice of consistently reappointing the same arbitrators. Therefore, the problem lies mainly in the phase after the first appointment and in preserving the impartiality of arbitrators vis-a-vis their interest in being reconfirmed for future cases.20
(iv) Pro-investor bias21: high compensation, undue secrecy and high benefits for foreign investors resulting from the use of ISDS have led to strong criticism of the system, especially because of the externalities involved in protecting these foreign investors.22
The outlined recursive issues triggered a public debate which transcends mere interstate relations. In consideration of a globalised world, international rules on the treatment of foreign investors are of critical importance.23 This is found in the ‘political’ opposition between sovereignty and globalisation,24 which entails limits to State sovereignty imposed by international agreements designed to protect foreign investments. The rules thus put in place, inevitably affect the public policies of States (albeit indirectly), and this is clear from the protection provided to the subjective legal situations and expectations of investors, a protection that can lead to the assessment of the international illegality of certain State measures, even of a general nature.25
III. Mapping out a common reform ground as baseline
To succeed in reforming the system by providing an answer to the above-mentioned problems, the various discussions and proposals that have been put forward, particularly since 2019,26 have led to a careful examination of two main alternative proposals: (i) the creation of a permanent appeal mechanism and (ii) the double instance MIC.
The idea of a fully fledged MIC is strongly supported,26 27 especially by the European Union. It was the Commission itself that gave strong impetus to this idea,28 with the aim, inter alia, of rationalising the fragmented international investment law.29 The European objective of creating a permanent court system, aimed at replacing the arbitration system, has been clear since the adoption of the 2015 ‘concept paper’30 which, taking up the results achieved in the negotiation of EU-Canada Comprehensive Economic Trade Agreement (‘CETA’),31 underlines the objectives of reforming the existing system to create an ICS and having, as its ultimate goal, the creation of a multilateral court. Indeed, the clauses providing for the creation of a permanent investment court - one for each treaty - included in the free trade treaties negotiated by the European Union in recent years,32 should be seen in this perspective. In fact, as it is also clear from Art. 8.29 CETA, once a multilateral investment tribunal is established, it will replace the other permanent appellate tribunals provided medio tempore in the international investment 33 agreements.33
The main difference between the MIC and the stand-alone Court of Appeal is that the latter would leave the structure of the current system unaffected as far as first-instance decisions are concerned, while at the same time providing for a centralised appellate body. On the contrary, the creation of a MIC would lead to more drastic changes and a higher level of integration, as both courts of the first and second instances would be centralised, replacing the ISDS and the idea of an ad hoc appointed arbitration panel completely.34
What the two proposals have in common is the provision for a second instance court. The necessity of the latter is shared in all hypotheses, to benefit from a court of second instance that unifies the interpretation of treaties and ensures the correctness of decisions by upholding constitutional principles such as the rule of law.35 Finally, a ‘two-tier’ system pursuing such objectives would solve the forum shopping problem,36 arising from the practice of seeking the most convenient interpretation of investment law for the subject matter of dispute.37
Notwithstanding what stated above, it has been claimed that attention should be given to negative side effects of providing for an appeal stage.38 While the creation of a second instance mechanism is likely to improve adjudication from the standpoint of uniformity and fairness, it also results in the loss of one of the main strengths of arbitral awards, namely that they are final and as such eliminate the likelihood of unreasonable delays in reaching the final resolution of a dispute.39 However, this trade-off between speed and fairness and the consequent search for balance in the solution to be adopted seems, from the analysis of the critiques held in recent years to tend towards a preference for the fairness of the decision.40 Moreover, the criticism that has been levelled at the potential efficiency of the new system in terms of expected increase in timing of proceedings,41 finds a point of weakness in the circumstance that the current ICSID rules are already providing for annulment proceedings42 and in non-ICSID cases, various national review mechanisms are provided.43 It would therefore be possible to conclude that the creation of an appeal, with strict and specific deadlines, could eventually bring improvements both from the point of view of the uniformity of the mechanisms and the time required to reach a final decision.
[...]
1 For an in-depth discussion on the topic and on the principle of autonomy of the EU legal order see Fanou M, “The CETA ICS and the Autonomy of the EU Legal Order in Opinion 1/17 - a Compass for the Future” (2020) 22 Cambridge Yearbook of European Legal Studies 106. See also Nica A, “UNCITRAL Working Group III: One Step Closer to a Multilateral Investment Court?”, (Kluwer Arbitration Blog, March 24, 2020) <http://arbitrationblog.kluwerarbitration.com/2020/03/24/uncitral-working-group-iii-one-step-closer-to-a- multilateral-investment-court/>; accessed June 6, 2022.
2 Ibidem. See also Argyropoulou V, “Chapter 2: ISDS Reform in the EU: Are We There Yet?”, in Alan M. Anderson and Ben Beaumont (eds), The Investor-State Dispute Settlement System: Reform, Replace or Status Quo?, (2020) Kluwer Law International; pp. 33 - 54. The author suggests not to overlook the CJEU deviation from the previous case law since it is due to specific characteristics of CETA which “contains various provisions guaranteeing public interest considerations and the parties ’ right to regulate”. The mentioned Opinion (C-1/17) of the CJEU is also decisive with reference to the findings of Croisant, G, “CJEU Extends Achmea to Ad Hoc Arbitration Agreements Identical to Intra-EU BITs’ Arbitration Clause”, (Kluwer Arbitration Blog, October 28, 2021). Available at: http://arbitrationblog.kluwerarbitration.com/2021/10/28/cjeu-extends-achmea-to-ad-hoc- arbitration-agreements-identical-to-intra-eu-bits-arbitration-clause/; accessed June 6, 2022. Croisant emphasizes - analyzing Poland v. PL Holdings (Case C-109/20) with reference to the well-known Achmea case (Case C284/16) - how “Against the background of the gradual dismantling of intra-EU investment arbitration, [...] the paradox created by the fact that extra-EU investment may be more effectively protected than intra-EU investment (since the CJEU confirmed - in Opinion 1/17, in the context of CETA - the validity of the investment court system provided for under some of the investment and trade agreement concluded by the EU with third states.”
3 See “Primer on International Investment Treaties and Investor-State Dispute Settlement” (Columbia Center on Sustainable Investment); <https://ccsi.columbia.edu/content/primer-international-investment-treaties-and- investor-state-dispute-settlement>; accessed June 6, 2022. The current ISDS system is defined as a system that: “allow foreign investors (individuals and companies) to allege treaty violations by suing states through arbitration. Arbitration tribunals are appointed and paid for by one or both of the disputing parties. Tribunals are not bound by precedent and can order remedies (usually in the form of monetary awards) to investors if they find that states have breached treaty obligations. In most cases, investors are not required to attempt to resolve disputes through available domestic remedies before filing ISDS claims”.
4 The discussions on a new investment court system that led to the two mentioned alternatives began with the negotiations between Europe and the United States for the Transatlantic Trade and Investment Partnership. See “European Commission: EU Finalises Proposal for Investment Protection and Court System for TTIP”; <https://ec.europa.eu/commission/presscorner/detail/en/IP_15_6059>; accessed June 6, 2022. See Bronckers M, “Is Investor-State Dispute Settlement (ISDS) Superior to Litigation before Domestic Courts?” (2015) 18 Journal of International Economic Law 655. The author emphasise that “Offering private investors the possibility to file a claim before an international court does seem to offer some advantages compared to domestic courts. Impartiality, and independence with respect to the defendant government may be more easily associated with an international court”.
5 See Koeth W, “Can the Investment Court System (ICS) Save Ttip and Ceta?”, (2016) EIPA Working Papers; < https://www.eipa.eu/wp-content/uploads/2021/10/20161019072755_Workingpaper2016_W_01.pdf>; accessed June 6, 2022.
6 See International Centre for Settlement of Investment Disputes, “Possible improvements of the framework for ICSID arbitration”, ICSID Secretariat, discussion paper, 2004, available at < https://icsid.worldbank.org/sites/default/files/publications/Possible%20Improvements%20of%20the%20Frame work%20of%20ICSID%20Arbitration.pdf>; accessed June 6, 2022.
7 See Langford M and others, “Special Issue: Uncitral and Investment Arbitration Reform: Matching Concerns and Solutions” (2020) 21 The Journal of World Investment & Trade 167; who describe the mandate as “broad, open-ended and problem-driven””. For further analysis on the conferred mandate see also Bonnitcha J, Langford M, Alvarez-Zarate JM, Behn D, “Damages and ISDS Reform: Between Procedure and Substance”, (2021) Journal of International Dispute Settlement. The authors in particular highlight debates over the purely procedural nature of the mandate vis-a-vis proponents of its substantive nature as well for two reasons: (i) “some states and observers [...] claimed that the core concerns with the system identified by WG III could not be addressed without accompanying substantive rule reform”; (ii) “delegates and scholars have argued that there is no consensus that substantive treaty reform is excluded legally under the mandate””.
8 See Hegde V, “'Rethinking Global Governance on Trade and Investment' Conference: Insights on ISDS Reform Proposals” (Globe September 9, 2019); <https://www.globe-project.eu/en/-rethinking-global-governance-on- trade-and-investment-conference-insights-on-isds-reform-proposals_6821>; accessed June 6, 2022. According to the author the UNCITRAL Working Group III is considered by the EU to be the best forum for the ongoing multilateral negotiations.
9 For a more in-depth discussion of the issues that are going to be highlight please refer to: Kahale III G, “Is Investor-State Arbitration Broken?”, (2012) 7 TDM; www.transnational-dispute- management. com/article. asp?key= 1918; accessed June 6, 2022; Waibel M, Kaushal A, Chung K, Balchin C, “The Backlash against Investment Arbitration: Perceptions and Reality”, Allard Faculty Publications, (2010) Kluwer Law International; and Franck SD, “The legitimacy Crisis in Investment Treaty Arbitration: Privatizing Public International Law Through Inconsistent Decisions”(2005) 73 Fordham Law Review.
10 See Shirlow E, “Investor-State Arbitration Meets Mediation: Potential Problems?”, (Kluwer Arbitration Blog, June 20, 2016) <http://arbitrationblog.kluwerarbitration.com/2020/09/30/investor-state-arbitration-meets-mediation-potential-problems/>; accessed June 6, 2022. The author highlights the necessity of a “holistic reform”. nSee Bonnitcha, J., Langford, M., Alvarez-Zarate, J.M., Behn, D., Nt. (7).
11 The author highlights the necessity of a “holistic reform”. nSee Bonnitcha, J., Langford, M., Alvarez-Zarate, J.M., Behn, D., Nt. (7).
12 Refer to Thanvi A, “Chapter 1: Bringing Consistency to Investment Arbitration: Challenges and Reform Proposals”, in Alan M. Anderson and Ben Beaumont (eds), The Investor-State Dispute Settlement System: Reform, Replace or Status Quo?, (2020) Kluwer Law International; pp. 9 - 32. The author in addressing the ISDS issues refers to consistency stating that “The fact that disputing parties can receive diametrically opposite rulings on the same legal question, depending on who leads the decision-making or the personality of each judge, only undermines the credibility of the system.” and to the need for predictability stating that it is a “fundamental part of what is meant by the rule of law.”.
13 See Jojo Sushama D, “Appellate Structure and Need for Legal Certainty in Investment Arbitration”, (Kluwer Arbitration Blog, May 1, 2014) <http://arbitrationblog.kluwerarbitration.com/2014/05/01/appellate-structure- and-need-for-legal-certainty-in-investment-arbitration/>; accessed June 6, 2022. According to the author: “When it comes to investment arbitration different tribunals put emphasis on different criteria. Further inconsistency is caused since the elements which one tribunal finds to be important may be of absolutely no relevance to another tribunal”.
14 An example of inconsistency and consequent unpredictability can be found in the examination of the judgments "Metalclad Corporation v. Mexico” (ICSID Case No. ARB(AF)/97/1) and “S.D. Myers, Inc. v. Canada”, (Partial Award | November 13, 2000) in which the respective tribunals reached different conclusions in their interpretation of the standard of "fair and equitable treatment" contained in the same treaty being applied (Art. no. 1105 NAFTA). Indeed, on the one hand the relevant tribunal in Metalclad interpreted this standard as an independent standard of protection, beyond the minimum standard of treatment provided by customary international law, on the other hand the SD Myers tribunal applied such standard without considering there to be any difference with respect to the application consequences of the same standard as provided under customary international law. For other examples of inconsistency, refer to Jojo Sushama D, Nt. (13). See also Charris Benedetti JP, “The Proposed Investment Court System: Does It Really Solve the Problems?” (2018) Revista Derecho del Estado 83.
15 For considerations of the possible advantages and disadvantages of this proposal refer to Lee S, “States’ Right to Interpret a Treaty and Whether It Should Be Binding in a Pending Case”, (Kluwer Arbitration Blog, August 20,2020) <http://arbitrationblog.kluwerarbitration.com/2020/08/03/states-right-to-interpret-a-treaty-and- whether-it-should-be-binding-in-a-pending-case/>; accessed June 6, 2022. In particular, the author calls for reflection on (i) the balance between States and rights of foreign investors; (ii) the need to update existing investment agreements; and (iii) the possible negative implications in terms of duration of proceedings and costs.
16 For a more detailed discussion of the problem analysis and proposed resolutions concerning interpretation, refer to “Possible Reform of Investor-State Dispute Settlement (ISDS). Interpretation of Investment Treaties by Treaty Parties”, A/CN.9/WG.III/WP.191, 17 Jan. 2020, available at <https://undocs.org/en/A/CN.9/ WG.III/WP.191>. In particular: “A suggestion is that the use of binding joint interpretation of treaty provisions by Parties should be encouraged, and it should be ensured that such joint interpretations would be binding on the ISDS tribunals. As noted in Submissions, recent investment treaties provide for the ability of the treaty Parties to adopt binding interpretations of the underlying obligations”. Among the states that have made significant submissions it is possible to find: Japan, Chile, Mexico, Israel, Morocco and Thailand.
17 See Kim JW and Winnington-Ingram LM, “Investment Court System under EU Trade and Investment Agreements: Addressing Criticisms of ISDS and Creating New Challenges” (2021) 16 Global Trade and Customs Journal 287; and Bernardini P, “The European Union’s Investment Court System - a Critical Analysis” (2017) 35 ASA Bulletin 812.
18 See Thanvi A, Nt. (12). The author emphasises how “Investment arbitration has numerous examples where a concept has been given diametrically opposite interpretation by different arbitral tribunals””. See also Grant T and Kieff F, ‘Appointing Arbitrators: Tenure, Public Confidence, and a Middle Road for ISDS Reform’ (2022) 43 Michigan Journal of International Law 171.
19 See Sardinha E, “The Impetus for the Creation of an Appellate Mechanism”, (2017), 32(3) ICSID Review 503.
20 See Pauwelyn J, ‘At the Edge of Chaos?: Foreign Investment Law as a Complex Adaptive System, How It Emerged and How It Can Be Reformed’ (2014) 29 ICSID Review 372. According to the author investment treaty system evolved towards a decentralized system that gives rise to emergent patterns on issues like repeat appointments and quasi-precedents. See also Avila II D and Borda N, “Mexico and EU propose a Permanent Arbitration Court and an Appellate Mechanism: Modernization or Destruction of ISDS?”; (Kluwer Arbitration Blog, August 20, 2020) <http://arbitrationblog.kluwerarbitration.com/2020/08/20/mexico-and-eu-propose-a- permanent-arbitration-court-and-an-appellate-mechanism-modernization-or-destruction-of-isds/>; accessed June 6, 2022. On the analysis of the 'double-hatting' problem and the solutions adopted under CETA refer to Lévesque C, “Canada’s Pro-Ban Stance on Double-Hatting: Playing the Long Game in ISDS Reform?”” (2021) 58 Canadian Yearbook of international Law/Annuaire canadien de droit international 382.
21 Ibidem. On this subject refer also to Van Harten G, “Arbitrator Behaviour in Asymmetrical Adjudication: An Empirical Study of Investment Treaty Arbitration” (2012) 50 Osgoode Hall Law Journal 211. See also on the “pro-investor and pro-state” bias, Roberts A., “Would a Multilateral Investment Court be Biased? Shifting to a treaty party framework of analysis”, (EJIL: Talk!, April 28, 2017) <https://www.ejiltalk.org/would-a- multilateral-investment-court-be-biased-shifting-to-a-treaty-party-framework-of-analysis/>; accessed June 6, 2022. For an analysis of how the investor-centric bias of ISDS has also adversely affected the capacities of member states to implement effective initiatives to protect human rights as resulting from obligations under international law see Krajewski M, “A Nightmare or a Noble Dream? Establishing Investor Obligations through Treaty-Making and Treaty-Application” (2020) 5 Business and Human Rights Journal 105.
22 See how "The Economist" magazine in 2014 presented ISDS as: "If you wanted to convince the public that international trade agreements are a way to allow multinational corporations to enrich themselves at the expense of ordinary people, this is what you would do: give foreign companies a special right to seek compensation from a secret tribunal of highly paid corporate lawyers every time a government passes a law to, say, discourage smoking, protect the environment or prevent a nuclear catastrophe. Yet this is precisely what thousands of trade and investment treaties over the last half century have done, through a process known as investor-state dispute settlement, or ISDS". Available at: https://www.economist.com/finance-and-economics/2014/10/11/the- arbitration-game; accessed June 6, 2022. On this subject, see also Langford M, Berge TL and Behn D, “Poor States or Poor Governance? Explaining Outcomes in Investment Treaty Arbitration” (2018) 38 Northwestern Journal of International Law & Business. According to the authors, the arbitration outcome is even more often to the disadvantage of states when poorer states are involved
23 See Caron DD and Shirlow E, “Dissecting Backlash: The Unarticulated Causes of Backlash and its Unintended Consequences”, in A Follesdal & G Ulfstein (eds.), The Judicialization of International Law: A Mixed Blessing? (European Society of International Law), (Oxford University Press, May 29, 2018). According to the authors “investment arbitration has attracted such strong critique because it forms a focal point for the articulation of concerns about globalization.”
24 On the topic refer to Oji AE and Ozioko MVC, ‘Effect of Globalization on Sovereignty of States’ (2011) 2 Nnamdi Azikiwe University Journal of International Law and Jurisprudence and Ku J and Yoo J, ‘ Globalization and Sovereignty’ (2013) 31 Berkeley J. Int'l L. 210.
25 For a more in-depth analysis see Di Benedetto S, “La proposta europea di una Corte multilaterale sugli investimenti: tra critiche all’attuale sistema di ISDS e rischi di future inefficienze”, (2018) in Federalismi.it- Rivista di Diritto Pubblico Italiano, Comparato, Europeo, 6. According to the author, the issue is based on the so-called right to regulate of the State, which would be limited by the need to guarantee the positions acquired by investors. The author also underlines how the rules protecting foreign investment find in the treaties a system of protection which bypasses the domestic courts, producing decisions which are binding on the States and capable of strongly affecting their domestic policies.
26 See European Commission, “Submission of the European Union and its Member States to UNCITRAL Working Group III: Establishing a standing mechanism for the settlement of international investment disputes” (January 18, 2019) available at: https://trade.ec.europa.eu/doclib/docs/2019/january/tradoc 157631.pdf; accessed June 6, 2022
27 See Lévesque C, Nt. (20). The author emphasises how "For international courts, judicialization is often reflected in state-driven appointments of judges, fixed tenures, and full-time positions, which all seek to promote the independence of the court and of its judges””.
28 See most recently "A balanced and progressive trade policy to harness globalisation- Multilateral Investment Court (MIC)”, available at: <https://www.europarl.europa.eu/legislative-train/api/stages/report/current/theme/a- balanced-and-progressive-trade-policy-to-harness-globalisation/file/multilateral-investment-court-(mic)> ; accessed June 6, 2022. See also the European Commission Concept paper "Investment in TTIP and beyond - the path for reform. Enhancing the right to regulate and moving from current ad hoc arbitration towards an Investment Court”, 2015; available at < https://trade.ec.europa.eu/doclib/docs/2015/may/tradoc_153408.PDF>; accessed June 6, 2022.
29 Experts are pushing for a single institutional mechanism to address such legislative fragmentation that currently numbers more than 2500 international investment agreements, mainly bilateral. See Gleason EE, "International Arbitral Appeals: What Are We So Afraid Of?”, (2007) in Pepperdine Dispute Resolution Law Journal, 7(2).
30 See the European Commission Concept paper "Investment in TTIP and beyond - the path for reform. Enhancing the right to regulate and moving from current ad hoc arbitration towards an Investment Court”, 2015; available at < https://trade.ec.europa.eu/doclib/docs/2015/may/tradoc_153408.PDF>; accessed June 6, 2022.
31 See Damjanovic I and de Sadeleer N, "Values and Objectives of the EU in Light of Opinion 1/17: ‘Trade for All’”, above All’ (2020) Europe and the World: A law review.
32 Reference is made to the various international investment agreements: EU-Singapore IPA, Art. 3.10; CETA, Art. 8.28; EU-Vietnam IPA, Art. 3.39. For a more in-depth analysis refer to Nt. (1). Refer also to Collet P, "The Current European Union Investor State Dispute Settlement Reform: A Desirable Outcome for Investment Arbitration?”, (2021) NYU Journal of International Law and Politics. According to Collet, "The long-term objective of both the CETA and European Union-Vietnam tribunals is to convert this bilateral system into a multilateral one that would incorporate all investment courts. [...] Member states would also be able to refer questions for preliminary rulings to the CJEU, which would result in more legitimacy for the MIC.”
33 See Caplan LM, “ISDS Reform and the Proposal for a Multilateral Investment Court” (2019) 37 Berkeley Journal of International Law 207. The author emphasises that “a permanent court would produce more consistent and predictable outcomes than an ad hoc system of arbitration.".
34 See Bungenberg M and Reinisch A, “Possibilities for the Establishment of an MIC and a Possible Connection to Existing Institutions and System Conformity”, (2020) In From Bilateral Arbitral Tribunals and Investment Courts to a Multilateral Investment Court. European Yearbook of International Economic Law. Springer, 175196.
35 On this point refer to Schill SW, “Investor-State Dispute Settlement Reform at UNCITRAL: A Looming Constitutional Moment?” (2018) The Journal of World Investment & Trade 1. The author emphasizes how “The creation of such a body would be an appropriate way to address the ‘constitutional challenge ’ the present ISDS system has posed for core constitutional principles common to many domestic legal systems, such as democracy, the rule of law, and human rights'’”.
36 See Wehland H, “Forum Shopping: Investment Arbitration”, in Max Planck Encylopedia of International Procedural Law, (2020) Oxford Public International Law; in particular: “The term forum shopping generally denotes the practice of claimants, in situations where several forums are available to them for the resolution of a dispute, to select the forum they perceive as promising them the most favourable outcome [...] in the specific context of international investment arbitration, the term forum shopping refers to the practice of investors to bring an investment-related dispute in the forum they perceive as most likely to grant the requested relief”.
37 See Butler N, “Possible Improvements to the Framework of International Investment Arbitration” (2013) 14 Journal of World Investment & Trade 613.
38 See Alvarez Zarate JM, “Legitimacy Concerns of the Proposed Multilateral Investment Court: Is Democracy Possible?” (2018) 59 Boston College Law Review 2765.
39 See Paulsson M, “UNCITRAL Working Group III: Reforms in the Realm of Investor-State Disputes - UNCITRAL’s Proposals for an Appellate Mechanism and its Impact on Duration and Cost”, (Kluwer Arbitration Blog, March 26, 2020) http://arbitrationblog.kluwerarbitration.com/2020/03/26/uncitral-working-group-iii- reforms-in-the-realm-of-investor-state-disputes-uncitrals-proposals-for-an-appellate-mechanism-and-its- impact-on-duration-and-cost/; accessed June 6, 2022. On this point refer also to Arato J, “ISDS Reform: From the Forest to the Trees of an Appellate Mechanism” (International Economic Law and Policy Blog2021) <https://ielp.worldtradelaw.net/2021/02/isds-reform-from-the-forest-to-the-trees-of-an-appellate- mechanism.html>; accessed June 6, 2022. The author highlights that “appellate mechanism for ISDS is starting to take shape [...] main concerns with permanent institutions relate to cost and duration”.
40 See Secretariat Note on Consistency, “Note by the Secretariat, Possible Reform of Investor-State Dispute Settlement (ISDS): Consistency and Related Matters”, A/CN.9/WG.III/WP.150, 28 August 2018; < https://documents-dds-ny.un.org/doc/UNDOC/LTD/V18/056/80/PDF/V1805680.pdf7OpenElement>; accessed June 6, 2022.
41 See Âlvarez Zarate JM and others, “Duration of Investor-State Dispute Settlement Proceedings” (2020) 21 The Journal of World Investment & Trade 300.
42 See on the increased utilization of ICSID annulment proceedings in order to prolong and delay enforcement of awards Ritwik A and Kahloon M, “Chapter 19: Improving Post-award Efficiency: Proposed Reforms to the ICSID Annulment Process”, in Alan M. Anderson and Ben Beaumont (eds), The Investor-State Dispute Settlement System: Reform, Replace or Status Quo?, (2020) Kluwer Law International; pp. 409 - 450.
43 See International Centre for Settlement of Investment Disputes, “Possible improvements of the framework for ICSID arbitration”, ICSID Secretariat, discussion paper, (2004) available at < https://icsid.worldbank.org/sites/default/files/publications/Possible%20Improvements%20of%20the%20Frame work%20of%20ICSID%20Arbitration.pdf>; accessed June 6, 2022. In particular, it should be noted that the International Centre for Settlement of Investment Disputes had already noted in 2004 that many countries had already equipped themselves with appeal mechanism in their IIAs.
- Quote paper
- Cosimo Marcantuono (Author), 2022, Towards a Reform of the Investor-State Dispute Settlement. An Assessment of the Innovation Route, Munich, GRIN Verlag, https://www.grin.com/document/1321671
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Upload your own papers! Earn money and win an iPhone X. -
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Upload your own papers! Earn money and win an iPhone X. -
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Upload your own papers! Earn money and win an iPhone X. -
-
Upload your own papers! Earn money and win an iPhone X. -
-
Upload your own papers! Earn money and win an iPhone X. -
-
Upload your own papers! Earn money and win an iPhone X.