The EU’s Proposal for an International Investment Court and Its Implications for International Investment Law

The EU’s Proposal for an International Investment Court and Its Implications for International Investment Law

Thursday, February 18, 2016 | 12 PM | UC Davis School of Law Rm 1303

ANDREA BJORKLUND, L. YVES FORTIER CHAIR IN INTERNATIONAL ARBITRATION AND INTERNATIONAL COMMERCIAL LAW AND PROFESSOR OF LAW, MCGILL UNIVERSITY

In November 2015 the European Union formally presented to the United States in the context of on-going Transatlantic Trade and Investment Partnership (T-TIP) negotiations a draft chapter on Trade in Services, Investment, and E-Commerce.  The chapter included a proposal to establish an first-instance Investment Court and an appellate facility.  The proposal evidently draws inspiration from the WTO Dispute Settlement Mechanism and possibly from the Iran-U.S. Claims Tribunal as well.  Cynical commentary suggests that the proposal was a ruse to buy time so that the European Parliament would permit the Commission to go forward – that so long as the Commission was seen to be doing something to implement the wishes of Parliament for revisions to investor-state dispute settlement T-TIP negotiations could continue.  The more idealistic view is that the proposal contains at least two major innovations that respond to some of the major criticisms of investment arbitration and provides a welcome blueprint for revisions to the investment arbitration “system” moving forward.  A close look at the proposal suggests that reality lies somewhere in between – there are important and possibly beneficial changes in the proposal, but, depending on one’s views of the deficiencies of investment arbitration, they probably do not go far enough to satisfy the most vociferous critics.