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2018 | Buch

Executive Summary Kapitel lesen Erstes Kapitel lesen

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

Options Regarding the Institutionalization of Investor-State Dispute Settlement

verfasst von: Prof. Dr. Marc Bungenberg, Prof. Dr. August Reinisch

Verlag: Springer International Publishing

Buchreihe : European Yearbook of International Economic Law

Enthalten in: Springer Professional "Wirtschaft+Technik" , Springer Professional "Wirtschaft"

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Über dieses Buch

This 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.

Inhaltsverzeichnis

Frontmatter
Chapter 1. Executive Summary
Abstract
In March 2018 the Council of the European Union gave the Commission a mandate to negotiate a Multilateral Investment Court. Furthermore, since 2017 the UNCITRAL Working Group III is discussing different options of a reform of Investor State Dispute Settlement. This report assesses both the option of a two-tiered Multilateral Investment Court (MIC) and of a Multilateral Investment Appellate Mechanism (MIAM). Both models provide for a permanent, pre-appointed judiciary according to rule of law standards.
Marc Bungenberg, August Reinisch
Chapter 2. Introduction
Abstract
In March 2018 the Council of the European Union gave the Commission a mandate to negotiate a Multilateral Investment Court. Furthermore, since 2017 the UNCITRAL Working Group III is discussing different options of a reform of Investor State Dispute Settlement. This report assesses both the option of a two-tiered Multilateral Investment Court (MIC) and of a Multilateral Investment Appellate Mechanism (MIAM). Both models provide for a permanent, pre-appointed judiciary according to rule of law standards. The structure of the new dispute settlement mechanism should pursue the following objectives:
Marc Bungenberg, August Reinisch
Chapter 3. Targets for the Reorganisation of the Investment Protection Regime
Abstract
A reorganization 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 Multilateral Investment Court (MIC) and a Multilateral Investment Appeals Mechanism (MIAM) are compared based on the outcomes of the previous discussion.
Marc Bungenberg, August Reinisch
Chapter 4. Design and Implementation of a Two-Tiered MIC
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 two agreements—CETA and the EU-Vietnam FTA. 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 investment court system should 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.
Marc Bungenberg, August Reinisch
Chapter 5. Applicable Law
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 practice in the settlement of investment disputes.
Marc Bungenberg, August Reinisch
Chapter 6. The Pronouncement of Decisions and Its Consequences
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 concrete recommendations for the structuring of the decisions of an MIC.
Marc Bungenberg, August Reinisch
Chapter 7. Recognition and Enforcement of Decisions
Abstract
A key issue for any dispute resolution mechanism is the question of the efficiency of the awards. This is ensured by the fact that these are not only final and binding (see para. 471 et seqq.), but also legally enforceable if necessary.
Marc Bungenberg, August Reinisch
Chapter 8. Possibilities for the Establishment of an MIC and a Possible Connection to Existing Institutions and System Conformity
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.
Marc Bungenberg, August Reinisch
Chapter 9. Standalone Appeal Mechanism: “Multilateral Investment Appeals Mechanism” (MIAM)
Abstract
In many cases, a purely multilateral Appellate Body was recently proposed as an alternative to the two-tiered Court model—a Multilateral Investment Appellate Mechanism. In this variant, the first phase of ad hoc arbitration as practiced so far, be it as 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 characterized by tighter organizational structures and a panel of judges appointed for a longer period of time. This is to achieve more consistency in decision-making practice.
Marc Bungenberg, August Reinisch
Metadaten
Titel
From Bilateral Arbitral Tribunals and Investment Courts to a Multilateral Investment Court
verfasst von
Prof. Dr. Marc Bungenberg
Prof. Dr. August Reinisch
Copyright-Jahr
2018
Electronic ISBN
978-3-030-01189-5
Print ISBN
978-3-030-01188-8
DOI
https://doi.org/10.1007/978-3-030-01189-5

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