Design and Implementation of a Two-Tiered MIC

Abstract

The EU Commission introduced a two-tiered investment court system to the debate in 2015 and has since been able to implement it in three agreements-CETA, the EU-Vietnam IPA as well as the EU-Singapore IPA. Similarly, the negotiated renewed EU-Mexico Agreement provides for an investment court system. In its 'Trade for All' communication, the Commission also stated that all future agreements concluded with the EU should contain this system for investment protection. 1 Therefore, this ICS can be used as a starting point for the following assessment, while also considering that this system should be converted into a multilateral system if possible. 2 CETA, the EU-Vietnam IPA and the EU-Singapore IPA provide for a first instance tribunal and an appeal mechanism. The same system will most likely be foreseen in the EU-Mexico Trade Agreement. These agreements also set out the size of the court system, the qualifications of the judges, the duration of their appointment, their remuneration and the limitations on the scope of their professional engagements outside the court, the applicable law and the scope of the appellate body's review of the first instance decision, as well as time limits for lodging an appeal and a maximum duration of the procedure. 3 In addition, in the following discussion, other proposals for investment courts (see, for example, the International Law Association (ILA) Draft Statutes of the 1 European Commission (2015), p. 24; This position was confirmed in European Commission (2017), p. 27. 2 Article 8.29 CETA, Establishment of a multilateral investment tribunal and appellate mechanism; Article 3.41 EU-Vietnam IPA (draft for signature) as on 2 April, 2019; Article 3.12 EU-Singapore IPA (draft for signature) as on 2 April, 2019; see also, Article 14 Section-Resolution of Investment Disputes, EU-Mexico Global Agreement (draft for signature) as on 2 April, 2019 EU-Mexico Agreement (under negotiation). These versions of the EU-Singapore IPA, the EU-Vietnam IPA and the EU-Mexico Global Agreement have been used throughout the Chapter. 3 Cf. thereto for instance Article 8.18 et seqq. CETA.