In the wake of the release of the European Commission’s proposal for a new investment chapter in the Transatlantic Trade and Investment Partnership, EFILA has organized its first Annual Lecture. The inaugural Annual Lecture of EFILA entitled: “Escaping from Freedom? The Dilemma of an Improved ISDS Mechanism” took place on 26 November 2015 from 16.30 until 19.30 at the offices of Allen & Overy LLP in London.
The inaugural Annual Lecture of EFILA was delivered by Sophie Nappert, a highly regarded, experienced arbitrator and peer-nominated Moderator of OGEMID. In her speech, Sophie delivered a constructive criticism of the European Commission proposal of 12 November 2015 for dispute resolution chapter in the TTIP. The full speech is available on the EFILA’s website under the following link: http://efila.org/wp-content/uploads/2015/11/Annual_lecture_Sophie_Nappert_full_text.pdf
Some of the interesting quotes from the Sophie’s lecture are below:
“I will not waste your time picking the Code apart, as clearly insufficient thought has been given to the feasibility and practical application in real life of what are listed as independence and impartiality prerequisites. More refined and informed reflection is needed. This is undoubtedly the clearest instance of rushed political appeasement of the entire proposal, and in that context I cannot resist pointing out the delightful irony of requiring from Judges and Members of the Appeals Tribunal that they are to discharge their duties without being influenced by “outside pressure, political considerations, public clamour, or fear of criticism” (Code of Conduct, Article 5(1)) – when in fact the originators of the proposal themselves were very much influenced by precisely these factors, chief amongst them “public clamour”.”
“The proposal provides for the enforcement of Final Awards issued by the Tribunals within the EU and US. Enforcement elsewhere remains an open question. A valid argument can be made that, as the process as currently contemplated is not arbitration, the decisions rendered by the Tribunal are not arbitration awards – no matter what label is put on them – and therefore not covered by the New York Convention”.
“Similarly, it is not clear how the Commission envisages – if it needs to be envisaged – that the establishment of these Investment Tribunals will sit alongside the CJEU’s jurisdiction (…) In light of that history and the CJEU’s unambiguous message, one has to look with considerable surprise at the EU proposal of a two-tiered court system for the TTIP, and the Commission’s claim in its Communication of 14 October 2015 that this will “begin the transformation of the old investor-state dispute settlement into a public Investment Court System”, and beyond this, “engage with partners to build consensus for a fully-fledged, permanent multilateral investment court”. (A cynic might venture that the Commission is creating a system that it knows the CJEU will sideline, but I am no cynic.)”