EFILA publishes paper on the EC’s International Court System (ICS)

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EFILA publishes a paper regarding the European Commission’s proposal for the International Court System (ICS).

 

The main aim of the paper is to present an in-depth analysis of the European Commission’s proposal for ICS in the context of the existing investment regime as well as comparing it with the WTO dispute settlement system.

 

The TASK FORCE PAPER regarding the proposed ICS is available on EFILA’s website under the following link: http://efila.org.domainpreview.nl/wp-content/uploads/2016/02/EFILA_TASK_FORCE_on_ICS_proposal_1-2-2016.pdf.

EFILA publishes response to the criticism against ISDS

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Since the Lisbon Treaty entered into force almost 6 years ago, the European Commission began  developing its own  EU investment policy. The core of this new investment policy is the conclusion of trade and investment treaties with strategically important countries. In the context of these negotiations, the critique against investor-state dispute settlement (ISDS), which is contained in practically all Bilateral Investment Treaties (BITs) as well as in recently concluded Free Trade Agreements (FTAs) such as the EU-Canada treaty (CETA) and the EU-Singapore treaty, has become more vocal.

 

Critics have raised concerns about the pro-investor interpretation of investment treaty provisions and their perceived unpredictability, the alleged lack of transparency of arbitral proceedings, the alleged lack of independence and impartiality of arbitrators. Others have suggested that ISDS bypasses the operation of domestic law and national courts and stymies the right of states to regulate. Criticisms have also been raised against the investor-state arbitration process itself, claiming that it allows partisan, self-interested arbitrators to secretly overrule governments with no right of appeal.

 

EFILA decided to write a paper in order to address the most often voiced myths against ISDS. The paper aims at balancing the currently rather one-sided debate by providing an in-depth analysis, based on arbitration practice and literature. The EFILA paper in response to the criticism against ISDS is available under the following link: http://efila.org.domainpreview.nl/wp-content/uploads/2015/05/EFILA_in_response_to_the-criticism_of_ISDS_final_draft.pdf

Academics sign a letter in support of ISDS

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46 eminent professors of international law from major Canadian and US universities has signed an open letter in support of investor-state dispute settlement provisions (ISDS) in international investment treaties. The letter calls for the discussion on ISDS based on facts and balanced representations instead of ‘errors or skewed information’. The letter is available under the following link: https://www.mcgill.ca/fortier-chair/isds-open-letter

EFILA organizes event on ISDS in the European Parliament

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Since the start of the negotiations for the Transatlantic Trade and Investment Partnership Agreement (TTIP), the issue of investor-state dispute settlement (ISDS) has become the most hotly debated subject in Brussels and in many Member States. This traditional method of dispute resolution between a foreign investor and a State, in which the investor can seek recourse when a State has discriminated against the investor, is now at the forefront of the political debate in Brussels and elsewhere.

 

This event will try to provide answers to the following questions: is ISDS really a Trojan horse which may be used by American and other foreign investors to undermine labour, environmental and health standards as cherished in the EU? Does ISDS allow international companies to bypass national judicial systems, possibly at the expense of domestic competitors? Does it constitute a competition to State courts? Is the process inherently corrupt and flawed?

 

The event entitled “Unveiling the mystery of ISDS’ and co-organized by the European Federation and Investment Law and Arbitration (EFILA) as well as Mr Christofer Fjellner MEP and Professor Danuta Hübner MEP, will take place at the European Parliament (to be confirmed) on 14 April 2015.

 

To register please contact Blazej Blasikiewicz, General Manager, at b.blasikiewicz@efila.org

EFILA’s comment in Borderlex

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EFILA’s comment entitled “Turning the tide on deteriorating EU investment protection standards after Lisbon” has been published by Borderlex, an online platform providing independent news and analysis as well as commentary from leaders in the field of trade policy.

 

The comment is available on Borderlex webiste.

Arbitration community calls for improvement of the system

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In anticipation of the 50th anniversary of the International Centre for Settlement of Investment Disputes (ICSID), a renowned practitioner and arbitrator Hamid Gharavi of Derains & Gharavi published a strong criticism of the existing system of annulment proceedings under the ICSID rules. Ghravi expresses concern about ‘the unbalanced and extraordinary power that the secretary-general of ICSID’ and urges improvements in the system.

The article entitled ‘ICSID annulment committees: the elephant in the room’ constitutes a good and welcomed example of the ongoing debate within the arbitration community to improve the system.

The article is available at the Global Arbitration Review website.

Former ICJ Judge Schwebel defends ISDS

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Former long-time judge and president of the International Court of Justice, highly regarded arbitration specialist and one of the most senior jurist of the globe wrote an excellent short piece for the Columbia FDI Perspectives, an occasional series of perspectives on important and topical foreign direct investment (FDI) issues.

Judge Schwebel states, inter alia, that:

  • The available research shows that investment arbitration is by no means biased against States.
  • Even though the system is asymmetrical, which means that only investors can initiate a claim, States are able initiate a counterclaim.
  • The criticism to the effect that investment arbitration constraints a State’s powers is opaque, as critics fail to recognize that the purpose of all international treaties is to limit the State powers.

The article also offers some thoughts how to develop and improve the current system of investment arbitration. It concludes that “[t]hesubstitution of national adjudication for international investment arbitration would be a regressive development that is to be resisted rather than furthered.”

The article is available on the Columbia FDI Perspectives website under the following link:  http://ccsi.columbia.edu/files/2013/10/No-135-Schwebel-FINAL.pdf

EFILA’s SG will speak on CETA at McGill University

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S-G of EFILA, Nikos Lavranos, will speak at the “Conference on the Canada – EU Comprehensive Economic and Trade Agreement” to be held at McGill University in Montreal on 31 October – 1 November, 2014. More information about the conference is available here

EFILA’s S-G speaks at the Annual Conference of the Dutch Arbitration Association

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S-G of EFILA, Nikos Lavranos, spoke at the 2014 Annual Conference of the Dutch Arbitration Association in Amsterdam (September 18, 2014) as one of the panelists of the investment arbitration session. More information about the conference is available here

Australian Senate against exclusion of ISDS from FTAs

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On 27 August 2014, the Foreign Affairs, Defence and Trade Legislation Committee of the Australian Senate recommended that the Trade and Foreign Investment (Protecting the Public Interest) Bill 2014, proposed in response to public concern over the risks that ISDS provision might pose to Australian public policy, not be passed.

The report of the Committee is available here

To read more, please click here