Targets for the Reorganisation of the Investment Protection Regime

Abstract

A reorganisation of the investment protection regime by introducing a two-tiered court system or a multilateral appellate body could offer advantages in comparison to the current system. 1 In a first step, the expected positive effects of the new approach are discussed. In a second step, the two options of a two-tiered MIC and a MIAM are compared based on the outcomes of the previous discussion. 3.1 Positive Effects of a New Approach Depending on the design of the system, it appears possible through enhanced institutionalization 2 to achieve greater consistency of decisions, to reinforce the independence and neutrality of adjudicators, to improve expedience of investment disputes, to limit costs for the parties involved, to ensure more accessibility for Small and Medium Enterprises (SMEs) and finally, to offer greater transparency than in current ISDS. 3 These aspects are also related to the increased emphasis on the rule of law-according to Articles 2 and 21 TEU. 4 An international investment court, in the sense of a permanent institutional court, can facilitate streamlined procedures through its efficient organisation. The organs of the court may deliver summons, execute the serving of documents and offer its premises for negotiations and translation services, including simultaneous interpretation. This can also reduce procedural problems which may occur if, for example, 1 On this see also, European Union (2019), para. 40. 2 Hereto in particular Schill (2015). 3 European Union (2019), paras. 40 et seqq. A discussion on the problems which the EU seeks to solve through the ICS and MIC can be seen in Alvarez Zarate (2018), pp. 2767 et seqq. 4 Also emphasised in European Commission (2017), p. 38.