Will the EU’s Proposal Concerning an Investment Court System for CETA and TTIP Lead to Enforceable Awards?—The Limits of Modifying the ICSID Convention and the Nature of Investment Arbitration

Reinisch, August

doi:10.1093/jiel/jgw072

Cited by 51 publications

(13 citation statements)

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“…Inter se modification of the ICSID convention needs to meet the conditions stipulated under article 41 of the 1969 VCLT (39) (40). However, the "ICSID Appeals Facility" paper missed addressing the question of whether inserting a mechanism for appellate review as inter se modification contradict with requirements of article 41 of 1969 VCLT (41). It is noteworthy that there are some views in favour of consistency between the requirement of the 1969 VCLT and the foundation of an appeal review mechanism as inter se modification, especially in terms of the purpose and objectives of the ICSID convention(8) (41).…”

Section: An Appellate Mechanism Is a Premature Issue But Not An Exclu...mentioning

confidence: 99%

“…However, the "ICSID Appeals Facility" paper missed addressing the question of whether inserting a mechanism for appellate review as inter se modification contradict with requirements of article 41 of 1969 VCLT (41). It is noteworthy that there are some views in favour of consistency between the requirement of the 1969 VCLT and the foundation of an appeal review mechanism as inter se modification, especially in terms of the purpose and objectives of the ICSID convention(8) (41). Ultimately, ICSID decided against adopting an Appeals Facility, with most Administrative Council members thinking it would be premature to seek to develop such a mechanism at that point(42).…”

Section: An Appellate Mechanism Is a Premature Issue But Not An Exclu...mentioning

confidence: 99%

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The possibility of creating an ICSID protocol for the establishment of a multilateral investment tribunal: A flexible or complex process.

Alkhayer,

Gupta,

Gupta

2023

IOP Conf. Ser.: Earth Environ. Sci.

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The 2030 Agenda for Sustainable Development was introduced in 2015 with its 16th goal which has targeted enhancing the concepts of the rule of law and universal access to justice. This goal, along with the current trend of directing investment projects towards sustainable development, has brought the mechanisms for investor-state dispute settlement (ISDS) into the spotlight in the realm of global investment. Recently, based on a different vision that was supported, especially by the European Union, a new approach to ISDS emerged that is characterized by fundamental differences from the well-known approach represented in the ICSID system. Whereas providing facilities to settle and arbitrate the investment disputes between a state member and investors belonging to another state member over several decades by the ICSID system made it a key player in the administration of the ISDS system. The fundamental differences adopted by the new EU’s model represent a serious challenge to the ICSID system. Especially if this new system proves to be effective and widely used and inserted in future international investment agreements (IIAs), the ICSID will be required to make adjustments that are compatible with this new system. Due to the complexity of the process of amendment to the ICSID convention, as it requires unanimous consent by all member states, the present paper, by analysing some historical stations of the functional and administrative context of the ICSID, examines the flexibility of the ICSID convention to establish a protocol that includes the features of the new system without resorting to amending the convention. The paper concludes that the ICSID enjoys the flexibility necessary to establish this protocol. Finally, the paper presents the motives and benefits envisioned for the establishment of this protocol.

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Section: An Appellate Mechanism Is a Premature Issue But Not An Exclu...mentioning

confidence: 99%

Section: An Appellate Mechanism Is a Premature Issue But Not An Exclu...mentioning

confidence: 99%

The possibility of creating an ICSID protocol for the establishment of a multilateral investment tribunal: A flexible or complex process.

Alkhayer,

Gupta,

Gupta

2023

IOP Conf. Ser.: Earth Environ. Sci.

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“…The ICS would provide greater transparency, consistency, and legitimacy than the ISDS system. The ICS could potentially be considered an inter se modification to the ICSID Convention, which would allow countries to opt-in to the ICS without having to renegotiate the entire treaty (6). SDGs seek to put an end to poverty, safeguard the environment, and guarantee peace and prosperity.…”

Section: The Relationship Between the Ics And Icsid System In The Lig...mentioning

confidence: 99%

The ICS vs. the ICSID system: a possible compromise in the light of the sustainable development

Alkhayer,

Gupta,

Gupta

2023

IOP Conf. Ser.: Earth Environ. Sci.

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The current inclination to direct investment efforts towards sustainable development, coupled with the 2030 Agenda for Sustainable Development, unveiled in 2015, which included the 16th goal of granting equal access to justice and reinforcing the rule of law on a universal level, has brought investor-state dispute settlement (ISDS) mechanisms to the forefront of global investment discussions. The ICSID has carried out a crucial role in overseeing the ISDS system, offering arbitration facilities for disputes between investors and states for over six decades. However, the ISDS system has faced criticism in recent years. In response, a new Investment Court System (ICS) implemented by the EU that aims to address these concerns by establishing a permanent court formed with judges who have been appointed by member states in advance and are distributed to disputes in a rotating and random manner. It also limits the parties’ freedom to opt the applicable law and considers that the substantive provisions in investment agreements are the applicable law to the raised disputes and inserts an appellate mechanism review for law and fact matters as well. The paper discusses the relationship between the ICS and the ICSID system in the light of sustainable development and examines a possible compromise between both systems by considering the ICS as inter se modification of the ICSID convention based on investigation of its compatibility with requirements of the VCLT. Ultimately, the paper finds that recognizing the ICS as an amendment between some parties to the ICSID convention does not conflict with the VCLT.

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“…This would overcome a variety of practical obstacles for current litigant investors and respondent states, whereby there can be in dispute over the appropriate venue for arbitration, the appointment of appropriate arbitrators and the norms that will determine the outcome of any dispute. 63 However, there seems likely to be hostility from the CJEU to such an initiative, which detracts from the powers of the former. The matter is currently the subject of a reference by Belgium.…”

Section: The Content Of Investment Treatiesmentioning

confidence: 99%

The concept of sustainability and its application in international trade, investment and finance

Gammage¹,

Novitz²

2019

Sustainable Trade, Investment and Finance

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Will the EU’s Proposal Concerning an Investment Court System for CETA and TTIP Lead to Enforceable Awards?—The Limits of Modifying the ICSID Convention and the Nature of Investment Arbitration

Cited by 51 publications

References 0 publications

The possibility of creating an ICSID protocol for the establishment of a multilateral investment tribunal: A flexible or complex process.

The possibility of creating an ICSID protocol for the establishment of a multilateral investment tribunal: A flexible or complex process.

The ICS vs. the ICSID system: a possible compromise in the light of the sustainable development

The concept of sustainability and its application in international trade, investment and finance

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