By a 4-3 majority, the Irish Supreme Court held in Costello v Government of Ireland that the Constitution precludes Irish ratification of the Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union and its member states. Inevitably, the decision has been compared with Achmea and CJEU Opinion 1/17. This post looks at…
Recently, the European Commission (EC) and the German Federal Government jointly released a draft decision on clarifications to certain provisions in the Investment Chapter (Chapter 8) of the Comprehensive Economic and Trade Agreement (CETA). More specifically, they have agreed upon (1) a more precise scope of circumstances that may give rise to violations of Article…
Introduction In September 2017, Belgium requested the opinion of the Court of Justice of the European Union (“CJEU”) on the compatibility with EU law of the Investment Court System (“ICS”) provided for by the Comprehensive Economic and Trade Agreement between the EU and Canada (“CETA”). Last January, Advocate General Bot concluded that this mechanism for…
An intriguing feature of Investment court system (“ICS”) of resolving disputes in Comprehensive and Economic Trade Agreement (“CETA”) and the European Union-Viet Nam Investment Protection Agreement (“EUVIPA”) is the amicable resolution of disputes to avoid long and expensive burden of Investor-State Dispute Settlement (“ISDS”) (see Art. 8.19 (1) CETA and Art. 3.39 EUVIPA). Another exceptional…
With the proposed investment court system, the European Commission aims to limit criticism revolved around Investor-State Dispute Settlement due to its lack of legitimacy, transparency and appellate mechanism. The investment regime under Comprehensive Economic and Trade Agreement with Canada (hereinafter “CETA”) and European Union-Viet Nam Free Trade Agreement (hereinafter “EUVFTA”) could be a solution by…
Introduction On 7 September 2017, Belgium requested the opinion of the Court of Justice of the European Union (“CJEU”) on the compatibility with EU law of the Investment Court System (“ICS”) provided for by the Comprehensive Economic and Trade Agreement between the EU and Canada (“CETA”). In his much anticipated opinion rendered today, Advocate General…
While the jury is still out on whether winter is coming or has already arrived regarding ISDS and investment treaties, I would rather turn to agriculture and use the metaphor of sowing the seeds and harvesting. Since July 2010, when the European Commission published its very first Communication on ISDS and investment treaties, it has…
Zooming out from the excellent analysis of Robert Landicho and Andrea Cohen on the specific changes that the USMCA as the intended successor of NAFTA will bring for investment protection and ISDS, this contribution will place the USMCA in a global perspective, in particular regarding the efforts of the EU to replace ISDS system with…
In the context of the backlash against investor-state dispute settlement (“ISDS”), one of the main criticisms is the asymmetric nature of investment treaties, which impose numerous obligations on the States, but do not seem to hold corporations accountable for the social, environmental and economic consequences of their activities. Some recent developments reflect a redirection away…
The Comprehensive Economic and Trade Agreement (CETA) made waves in a post-Trump era of hostility towards free trade. But not all press is good press and CETA’s investor–state dispute settlement (ISDS) mechanism has come under fire. While all chapters of the CETA entered into force at midnight on September 21, 2017, one didn’t: the controversial…
The European Commission (“EC”) has recently taken another step in its efforts to replace the traditional investor-state-dispute-settlement (“ISDS”) mechanism which underlies the approximately 1,400 bilateral investment agreements in force between EU Member States and third countries. On 13 September 2017, the EC issued, based on Article 218(3) of the Treaty on the Functioning of the…
The international arbitration community has lately been occupied with various proposals to reform investor-state disputes. On the interstate level, a consensus seems to be building that several aspects of the current system need to be modified in order for the system to safeguard its own legitimacy. In this context, there are various reform proposals floated…
The recent developments concerning the signature of the Comprehensive Economic Trade Agreement (CETA) between Canada and the EU have illustrated the paralysis and inability of the EU and its Member States to deliver economic prosperity and create jobs – which used to be one of the very reasons for establishing the EU and giving it…
Critics of the TPP, and ISDS protections more generally, have often argued that a particular concern is that the US is not only a large source of FDI, but that it is ‘the nation whose corporations use ISDS the most’ (referring to ANU’s Professor Thomas Faunce). A recent paper by ANU’s Dr Kyla Tienhaara for…
Recent developments indicate there may be increasing interest in the creation of alternative forms of dispute resolution for investor-State disputes. One potential alternative is mediation. This post outlines how 2016 has been an important year for investor-State mediation, considers how mediation interacts with investment treaty arbitration, and the benefits and risks associated with such a…
Current deliberations about the need for “Sustainable Development” and “Public Private Partnerships” will lead inevitably to a more realistic consideration of a sovereign state’s right to engage and regulate the private sector more extensively than previously. In the past, the problem associated with the sovereign state’s right to exercise police powers, whether for legitimate reasons…
It has become customary for governments and other organisations to issue “Qs and As” to dispel myths about trade agreements. They usually contain categorical statements made to correct the record and reassure the concerned. The following ten “Qs and As” would likely not be issued by the EU Commission, as too many answers to the…
International investment law and investor-State dispute settlement (ISDS) are at a historic juncture as the United States and the European Union (EU) have started to address the content and contours of the investment chapter in the Transatlantic Trade and Investment Partnership (TTIP) in the latest negotiation round that took place in Brussels the last week…
by Catherine H. Gibson (Assistant Editor for North America) The Trans-Pacific Partnership (TPP) Agreement (official text here) is one in a series of significant investment agreements that the United States will negotiate in the coming months and years – next in line are the Transatlantic Trade Investment Partnership (TTIP) Agreement and the United States-China bilateral…
While the focus of the debate concerning free trade and investment agreements in Europe has been almost exclusively on the transatlantic deals with the US (TTIP) and Canada (CETA), there is far more going on in Asia with potentially much more at stake. Indeed, nothing less than a very competitive race is going on between…
If the Canada-China BIT is any guide, then the US-China BIT may prove to be profoundly state-friendly. Unlike Canada’s 2004 model investment agreement and the investment chapter of the 2014 Canada-European Union Comprehensive Trade and Economic Agreement (CETA), the Canada-China BIT offers only negligible establishment-phase protections and lacks disciplines on state-owned enterprises. With such provisions,…
Germany’s position on international investment law and investor-State arbitration is attracting increasing attention since the signing of the Canada-EU Comprehensive Economic and Trade Agreement (CETA) in September 2014 has been deferred, inter alia, because of opposition from Sigmar Gabriel, Germany’s Federal Minister for Economic Affairs and Energy. Is Germany, the country that not only has…
