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From Bilateral Arbitral Tribunals and Investment Courts to a Multilateral Investment Court

Options Regarding the Institutionalization of Investor-State Dispute Settlement

  • Open Access
  • 2020
  • Open Access
  • Book
Authors
Prof. Dr. Marc Bungenberg
Prof. Dr. August Reinisch
Book Series
European Yearbook of International Economic Law
Publisher
Springer Berlin Heidelberg
Part of
Springer Professional "Business + Economics & Engineering + Technology"
Springer Professional "Business + Economics"

About this book

This open access book considers the potential setup for a future Multilateral Investment Court (MIC). The option of an MIC was first discussed by the EU Commission in 2016 and has since been made an official element of the EU Common Commercial Policy. In 2017, UNCITRAL also decided to discuss the possibility of an MIC, and on 20 March 2018, the Council of the EU gave the EU Commission the mandate to negotiate the creation of an MIC. The “feasibility study” presented here is intended to contribute to a broader discussion on the options for a new international court specialized in investment protection. The cornerstones of such a new permanent court are a strict orientation on the rule of law, reduced costs of investment protection, transparency considerations, aspects of consistency in case law, and the effective enforceability of MIC decisions.

Table of Contents

  1. Frontmatter

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  2. Chapter 1. Executive Summary

    • Open Access
    Marc Bungenberg, August Reinisch
    Abstract
    In March 2018 the Council of the European Union (EU Council or Council) gave the Commission of the EU (EU Commission or Commission) a mandate to negotiate a Multilateral Investment Court (MIC). Since July 2017 the United Nations Commission on International Trade Law (UNCITRAL) Working Group III has been discussing different options for a reform of Investor State Dispute Settlement (ISDS). The UNCITRAL Working Group III was mandated to:
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  3. Chapter 2. Introduction

    • Open Access
    Marc Bungenberg, August Reinisch
    Abstract
    In March 2018 the Council of the European Union (EU Council or Council) gave the Commission of the EU (EU Commission or Commission) a mandate to negotiate a Multilateral Investment Court (MIC). Furthermore, since July 2017 the United Nations Commission on International Trade Law (UNCITRAL) Working Group III is discussing different options for the reform of Investor State Dispute Settlement (ISDS). The UNCITRAL Working Group III was mandated to:
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  4. Chapter 3. Targets for the Reorganisation of the Investment Protection Regime

    • Open Access
    Marc Bungenberg, August Reinisch
    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. 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.
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  5. Chapter 4. Design and Implementation of a Two-Tiered MIC

    • Open Access
    Marc Bungenberg, August Reinisch
    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. 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.
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  6. Chapter 5. Applicable Law

    • Open Access
    Marc Bungenberg, August Reinisch
    Abstract
    One of the central concerns in establishing an MIC is the creation of institutional framework conditions for the avoidance of contradictory decisions and the development of a uniform decision-making in the settlement of investment disputes.
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  7. Chapter 6. The Pronouncement of Decisions and Its Consequences

    • Open Access
    Marc Bungenberg, August Reinisch
    Abstract
    It seems appropriate to start by considering the options of the effects and consequences of the decisions of international dispute settlement bodies, in general, and of investment arbitral tribunals, in particular, in order to make specific recommendations for the structuring of the decisions of an MIC.
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  8. Chapter 7. Recognition and Enforcement of Decisions

    • Open Access
    Marc Bungenberg, August Reinisch
    Abstract
    A key issue for any dispute resolution mechanism is the question of effectiveness of decisions. This is ensured by the fact that these are not only final and binding (see paras. 469 et seqq.), but also legally enforceable if necessary.
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  9. Chapter 8. Possibilities for the Establishment of an MIC and a Possible Connection to Existing Institutions and System Conformity

    • Open Access
    Marc Bungenberg, August Reinisch
    Abstract
    In light of the statements above and the very specific requirements that should be put on the MIC, acceptance of MIC judgments as arbitral awards in the meaning of the New York Convention in states where enforcement is sought, seems questionable. It follows that the best option for an effective MIC would be to establish it as an independent multilateral court, which should provide for its own procedural rules as well as enforcement provisions or even an own independent fund system.
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  10. Chapter 9. Standalone Appeal Mechanism: “Multilateral Investment Appeals Mechanism” (MIAM)

    • Open Access
    Marc Bungenberg, August Reinisch
    Abstract
    A purely multilateral Appellate Body was recently proposed as an alternative to the two-tiered court model—a MIAM. In this variant, the first phase of ad hoc arbitration as practiced so far, be it an ICSID, UNCITRAL or SCC procedure, should be retained. Nevertheless, a uniform multilateral judicial Appellate Body or quasi-judicial Appellate Body should be added. However, in contrast to the proposals, in particular those made in the context of ICSID in 2004 and 2005 as well as approaches in other recent US IIAs, this should be characterised by tighter organisational structures and a panel of judges appointed for a longer period of time. This is to achieve more consistency in decision-making practice.
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  11. Backmatter

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Title
From Bilateral Arbitral Tribunals and Investment Courts to a Multilateral Investment Court
Authors
Prof. Dr. Marc Bungenberg
Prof. Dr. August Reinisch
Copyright Year
2020
Publisher
Springer Berlin Heidelberg
Electronic ISBN
978-3-662-59732-3
Print ISBN
978-3-662-59731-6
DOI
https://doi.org/10.1007/978-3-662-59732-3

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