Abstract
This chapter looks at the main procedural innovations brought by EU investment agreements, with a view to providing an account of how disputes will be conducted under them. In particular, the chapter illustrates the significant amount and magnitude of the ground-breaking innovations contained in these agreements. It includes an examination of the non-confrontational mechanism available at the pre-litigation stage, an assessment of the structure and functioning of the ICS and its internal articulation, as well as other procedural issues such as transparency . The chapter concludes that the ICS established by the likes of CETA is a carefully designed, highly institutionalised judicial mechanism to settle investment disputes.
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Notes
- 1.
The EU has also engaged in a general recalibration of the substantive standards typically included in an investment agreement. Such recalibration of substantive rules is also widely regarded as an improvement with respect to the old system of rules contained in BITs. For obvious reasons of coherence, these standards cannot be further analysed in this book. The reader is therefore referred to the existing literature dealing with these issues. See, in particular, Dimopoulos 2011, pp. 125 et ff; Titi 2015, pp. 639–661; Hoffmeister 2016, pp. 357–376.
- 2.
See the reference provided in Sect. 1.3.
- 3.
Whether this separation is legally necessary after Opinion 2/15 is an entirely different matter. See the considerations made in Sect. 5.3.
- 4.
See Joint statement by Commissioners Malmström and Hogan, and the Secretary of the Economy of Mexico, Guajardo Villarreal Joint statement by Commissioners Malmström and Hogan, and the Secretary of the Economy of Mexico, Guajardo Villarreal, of 21 April 2018, available at http://europa.eu/rapid/press-release_STATEMENT-18-3481_en.htm (accessed on 28 May 2018).
- 5.
See European Commission (2010), Towards a comprehensive European international investment policy—Communication from the Commission to the Council and the Parliament, COM(2010)343 final, in particular pp. 9–10 where the settlement of investment disputes is discussed.
- 6.
See Waibel et al. 2010.
- 7.
- 8.
There are complex historical, political and economic reasons behind this explosion that cannot be analysed in this book in-depth. In summary, a veritable turning point has been the fall of the Soviet Union and the subsequent generalised collapse of the socialist conception of property, which led countries belonging to the former socialist bloc to embrace a transition to a capitalist economy. These countries were keen on profiting of the new international economic climate and started to conclude investment agreements—mostly in the form of BITs—with Western countries, in the attempt to attract foreign capital and catch up with more developed economies. See the considerations made by Dolzer and Schreuer 2012, pp. 4–6. This explosion of investment treaties has soon resulted in an explosion of disputes settled on their basis.
- 9.
There is undeniable proximity, and to some extent certain promiscuity, between commercial arbitration and investment arbitration, which is often acknowledged by arbitral tribunals . See, for example, UNCITRAL Arbitral Tribunal, Glamis Gold, Ltd v. United States, Award, 8 June 2009, para 3, where an ICSID Tribunal constituted under NAFTA stated that it saw “its mandate under Chapter 11 of the NAFTA as similar to the case-specific mandate ordinarily found in international commercial arbitration”. Additionally, it is widely recognised that some arbitration rules (such as UNCITRAL) were designed to be used primarily in the context of commercial arbitration. See the early work of ICSID’s ‘founding father’ Broches 1984–1985, p. 79. This observation, however, does not apply to ICSID, which was devised since the very beginning as an instrument governing disputes between foreign investors and States involving the exercise of sovereign powers by the latter. For a useful summary of the events that led to the establishment of ICSID, see Dolzer and Schreuer 2012, pp. 9–10.
- 10.
One can immediately think of a few paradigmatic examples, such as the lawsuits initiated by Philip Morris in 2010 and 2011 challenging Uruguayan and Australian legislation imposing so-called ‘plain packaging’ of tobacco products. These actions were met with strong criticism from the public, given that the measures in question were widely regarded as necessary to safeguard a public interest (i.e. the health of millions of people) as opposed to a purely private one (i.e. the profits of a large corporation). As an aggravating circumstance, in order to sue the Australian government Philip Morris perpetrated a flagrant abuse of rights by relocating its headquarters from Australia to Hong Kong for the sole purpose of activating the jurisdictional clause included in the Australia-Hong Kong BIT at a time when the dispute was already foreseeable (as later acknowledged by the Arbitral Tribunal). This incident was comprehensively (and very enjoyably) covered in an episode of ‘Last Week Tonight’, an American late-night talk and news satire television program hosted by British comedian John Oliver. It bears noting that Philip Morris lost both lawsuits. See ICSID Arbitral Tribunal, Philip Morris Brands Sàrl and Abal Hermanos S.A. v. Oriental Republic of Uruguay, Award, 8 July 2016, ICSID Case No. ARB/10/7; and UNCITRAL Arbitral Tribunal, Philip Morris Asia Limited v. The Commonwealth of Australia, Award on Jurisdiction and Admissibility, 17 December 2015, PCA Case No. 2012-12.
- 11.
This author has already expressed elsewhere his reservations in this regard. See, for example, Pantaleo 2016, p. 82 and pp. 87–90.
- 12.
For example, ICSID Convention Article 48(5) prevents the Secretary-General from publishing awards without the parties’ consent. However, it is worth noting, that confidentiality is not imposed on the Parties, which remain free to disclose documents to their liking. Roughly the same reasoning applied to UNCITRAL before recent amendments.
- 13.
An exception to this state of affairs is represented by NAFTA . With a decision made by the NAFTA Free Trade Commission, the Parties to that agreement have committed to high transparency standards since 2004. In brief, the parties have engaged to ensure that the public is given notice of the existence of an arbitration, that documents submitted to the tribunal or issued by it are publicly available, and that hearings are fully open to the public. See NAFTA Free Trade Commission Joint Statement, A Decade of Achievement (16 July 2004). Similar standards are incorporated in the US and Canada Model BITs. See, for example, Article 29 of the US Model BIT. The European States, however, have never adopted similar standards in their BITs.
- 14.
See Tams and Asteriti 2010, pp. 787 et ff.
- 15.
See European Commission (2011), Follow up to the European Parliament Resolution on the Future European International Investment Policy, P7-TA-PROV(2011)0141.
- 16.
Substantial progress has been achieved at multilateral level as well. On 1 April 2014 UNCITRAL has adopted the Rules on Transparency in Treaty-based investor-State Arbitration, which represent a considerable improvement with respect to prior rules (available at http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/2014Transparency.html, accessed 19 January 2018). These rules, which lay down far-reaching transparency obligations, apply to disputes conducted under UNCITRAL Arbitration Rules and based on investment agreements concluded after 1 April 2014. Moreover, the applicability of UNCITRAL Rules on Transparency has been extended to all investment disputes by the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration, adopted by the General Assembly on 10 December 2014. Remarkably, according to Article 7 ratification is open to any “regional economic integration organization that is constituted by States and is a contracting party to an investment treaty”. Unfortunately, at the time of writing only three States have ratified the Convention. Neither the EU nor any Member State have done so.
- 17.
See Schreuer 2013, pp. 391 et ff.
- 18.
For a comprehensive analysis of this issue, see the seminal work of Shahabuddeen 1996.
- 19.
An emblematic example that is often mentioned is a trio of NAFTA awards issued between August 2000 and April 2001 that have reached opposite conclusions in relation to one and the same issue, namely fair and equitable treatment (FET). The awards in question are, in chronological order, ICSID Arbitral Tribunal, Metalclad Corporation v. The United Mexican States, Award, 30 August 2000, ICSID Case No. ARB(AF)/97/1; UNCITRAL Arbitral Tribunal, S.D. Myers, Inc. v. Government of Canada, Partial Award, 13 November 2000; UNCITRAL Arbitral Tribunal, Pope & Talbot Inc. v. The Government of Canada, Award on the Merits of Phase 2, 10 April 2001. As a reaction to this contradictory line of cases, NAFTA’s Free Trade Commission has issued an interpretive statement on 31 July 2001 aimed to make clarity, among other things, on the meaning and scope of the FET standard as laid down in Article 1105 NAFTA. See NAFTA Free Trade Commission, Notes of Interpretation of Certain Chapter 11 Provisions, July 31, 2001, available at http://www.sice.oas.org/tpd/nafta/Commission/CH11understanding_e.asp (accessed 19 January 2018).
- 20.
See McRae 2010, pp. 371 et ff.
- 21.
It should be noted that the challenges on the road to the creation of an appellate tribunal are massive. Among other things, suffice it to say that it would be necessary to amend the ICSID Convention, which requires unanimity among the Parties to it. This has never really seemed to be an achievable scenario.
- 22.
Another feature of EU investment agreements that may improve internal consistency is the creation of treaty bodies charged with the task of, among other things, issuing binding interpretations of the treaty under which they are constituted, as well as supplementing rules and amendments. This applies to substantive investment standards but also to the settlement of disputes, as explicitly indicated in 8.44(3) CETA concerning the Committee on Services and Investment established under this treaty. See on this matter Methymaki and Tzanakopoulos 2017.
- 23.
Some minor differences exist between different arbitration rules. For example, under the ICSID Convention, the President of the Tribunal has to be appointed by agreement between the parties, while under UNCITRAL it is for the two arbitrators chosen by the parties to appoint the President. The common leitmotiv is that the parties to the dispute have a direct role in shaping the composition of the arbitral tribunal.
- 24.
See Gill 2006, p. 26.
- 25.
See Kumm 2015, p. 7, who also points out that some private practitioners lack the necessary qualifications to be appointed as arbitrators.
- 26.
Lively academic debate has famously been triggered by the publication of an article authored by prominent scholar and arbitrator Jan Paulsson that vehemently criticised party-appointed arbitrators. See Paulsson 2010. This article was followed by an equally passionate reaction signed by Charles N. Brower and Charles B. Rosenberg, where these authors argued that party-appointed arbitrators are essential to the development of this branch of international law. See Brower and Rosenberg 2013.
- 27.
See Park 2010, p. 194.
- 28.
See Ciancio 2014, p. 446.
- 29.
For example, Article 12 of UNCITRAL Arbitration Rules unequivocally states that “[a]ny arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator’s impartiality or independence” (emphasis added).
- 30.
See Daele 2012.
- 31.
But see the considerations made by Baetens 2016, particularly pp. 370–371.
- 32.
More specifically, the average party costs are more than 4.5 million USD per party, and tribunal costs around 800,000 USD. See Hodgson and Campbell 2017.
- 33.
Here again one can immediately think about the battle between tobacco giant Philip Morris and a small country like Uruguay (see supra, note 10). Uruguay was financially supported by external donors who embraced its anti-tobacco policies, such as, most notably, former New York Mayor Michael Bloomberg. See Davies, Michael Bloomberg Fights Big Tobacco in Uruguay, BBC News, 7 April 2015, http://www.bbc.com/news/world-latin-america-32199250 (accessed 2 February 2018).
- 34.
See Hodgson and Campbell 2017.
- 35.
See Article 8.27(9) CETA.
- 36.
See Article 8.39(5) CETA. For an overview of the rules concerning the allocation of costs under other arbitration rules, see Pantaleo 2016, pp. 78–80.
- 37.
The loser pays principle might, however, be somewhat of a double-edged sword. In fact, small claimants might be deterred from bringing a claim if they face the risk of bearing legal costs that they cannot afford.
- 38.
See Wehland 2013.
- 39.
See Article 8.32(1) CETA.
- 40.
CETA lays down a veritable barrage of statutes of limitations, for example at Article 8.19(6) CETA. This and other rules will be examined in-depth below.
- 41.
This is done by means of a so-called fork-in-the-road (FITR) clause. Further detail will be provided below.
- 42.
This author has expressed elsewhere some reservations about the ICS, and more specifically about the appellate mechanism. See Pantaleo 2016, pp. 87–90.
- 43.
See supra, note 5.
- 44.
See Online public consultation on investment protection and investor-to-state dispute settlement (ISDS ) in the Transatlantic Trade and Investment Partnership Agreement (TTIP ), available at http://trade.ec.europa.eu/consultations/index.cfm?consul_id=179 (accessed on 20 February 2018).
- 45.
See European Commission, ‘EU finalises proposal for investment protection and Court System for TTIP ’, Press Release, http://europa.eu/rapid/press-release_IP-15-6059_en.htm (accessed on 20 February 2018).
- 46.
See European Commission, ‘CETA: EU and Canada agree on new approach on investment in trade agreement’, Press Release, http://europa.eu/rapid/press-release_IP-16-399_en.htm (accessed 20 February 2018).
- 47.
Another memorable moment was certainly the dramatic Wallonia debacle, that is to say, a diplomatic and political crisis triggered by the decision taken by a local parliament—representing 0.68% of the EU population—to take hostage the entire CETA for a few, melodramatic hours. The Walloon Parliament gave its go-ahead after complex negotiations that gave ‘political assurances’ on the effects of the provisional application. See Pantaleo 2017a, p. 61 (including footnotes). See also Rankin, EU-Canada trade deal in crisis as Canadian minister walks out, The Guardian, 22 October 2016, https://www.theguardian.com/world/2016/oct/21/eu-canada-ceta-trade-deal-meltdown-canadian-minister-walks-out (accessed 20 February 2018).
- 48.
See, for example, Article 23 of the US Model BIT.
- 49.
The definition of an investor is laid down in Article 8.1 CETA and includes legal persons incorporated in the respondent States that are directly or indirectly controlled by an investor of the other Party.
- 50.
See Article 8.19(5) CETA.
- 51.
See Article 8.19(6) CETA.
- 52.
See Article 8.19(8) CETA.
- 53.
See Article 8.23(1) CETA.
- 54.
See Article 8.19(2) CETA.
- 55.
See Article 8.19(7) CETA.
- 56.
See Article 8.19(3) CETA.
- 57.
The required correspondence between the pre-litigation and the litigation stage is not a unique feature of EU investment agreements. For example, a parallel can be drawn with the rules governing the infringement procedure in accordance with Article 258 TFEU, where a similar mechanism is envisaged. This aspect raises a number of interesting issues, such as the possibility to take into account conducts undertaken after the consultation stage, their impact on the dispute, and so forth. For a general comment on these matters, see the considerations made by Kuijper 2000.
- 58.
This question will be analysed in Sect. 5.2.
- 59.
To the best of the Author’s knowledge, there is only one investment dispute that has actually been brought to mediation so far. See Peterson 2016. At the time of writing, the mediation seems to be still pending.
- 60.
ICSID Review has devoted a special issue to this matter. See ICSID Review, Volume 29, Issue 1, Alternative Dispute Resolution in Investment Dispute.
- 61.
As evidenced, for example, by the active role played by ICSID Secretariat. Information concerning the initiatives taken by ICSID can be found here: https://icsid.worldbank.org/en/Pages/resources/ICSID%20NewsLetter/2017-Issue3/Considering-the-Future-of-Investor-State-Mediation.aspx (accessed 1 March 2018).
- 62.
For example, it seems that a mediation mechanism could be incorporated in the Regional Comprehensive Economic Partnership between the ASEAN countries, Australia, China, India, Japan, South Korea and New Zealand. See Baker and Dowling 2017.
- 63.
The reader is, therefore, referred to the sources referenced above, in particular supra, note 60.
- 64.
In particular, the provision in question states that a claim is submitted when: A claim is submitted for dispute settlement under this Section when:
(a) the request under Article 36(1) of the ICSID Convention is received by the Secretary-General of ICSID ;
(b) the request under Article 2 of Schedule C of the ICSID Additional Facility Rules is received by the Secretariat of ICSID;
(c) the notice under Article 3 of the UNCITRAL Arbitration Rules is received by the respondent;
or
(d) the request or notice initiating proceedings is received by the respondent in accordance with the rules agreed upon pursuant to subparagraph 2(d).
- 65.
The CETA Joint Committee is established under Article 26.1 and comprises representatives of the European Union and Canada. It will be presided by the Minister of International Trade of Canada and the European Commissioner for Trade. To our purpose, it is not necessary to dwell on the details of the wide-ranging powers attributed to the CETA Joint Committee. It is interesting to note, however, that the Member States as such will not be represented. The European Commission will take up the duty to represent the interests of the EU as a whole vis-à-vis the third-country involved.
- 66.
The provision in question was, in accordance with the old numbering, Article 9.30(1)(c).
- 67.
Emphasis added. An identical provision governs the decision making of the first instance Tribunal. The EU-Singapore Agreement contains a similar rule which is, however, only applicable in the context of State to State disputes. See Article 3.43(1).
- 68.
See Raffaelli 2012, p. 33.
- 69.
For the writing of this part, a fundamental source of inspiration for the Author has been Loris Marotti and his Ph.D. thesis focused on the question of appeal in international law (which will soon be published in the form of a monograph).
- 70.
Article 13(1), Ch. 8, Sec. 3. This is also the solution adopted in the EU-Singapore Agreement. See Article 3.10(1).
- 71.
Emphasis added.
- 72.
The reader is referred to the existing relevant literature. See, in particular, Honlet et al. 2015.
- 73.
This characteristic of the international legal order as opposed to domestic legal systems is so deeply rooted that a prominent scholar in 1991 declared that a “domestic lawyer […] might be forgiven for thinking it strange that the international community, though apparently well-equipped with means of judicial settlement, appears to lack what seems to be a natural or inherent feature on national judicial systems, namely, a comprehensive system of appeal”. See Lauterpacht 1991, p. 99.
- 74.
See the considerations of the UN Secretary-General in relation to the creation of the ICTY, Report of the Secretary-General pursuant to para 2 of Security Council Resolution 808 (1993), UN Doc. S/25704, paras 116 et seq.
- 75.
See Article 17(6) of the WTO Dispute Settlement Understanding, according to which an “appeal shall be limited to issues of law covered in the panel report and legal interpretations developed by the panel.”
- 76.
See Article 8.28(7).
- 77.
See Article 17(6) of the Understanding on rules and procedures governing the settlement of disputes.
- 78.
See, among others, Korea—Definitive Safeguard Measure on Imports of Certain Dairy Products (14 December 1999) WT/DS98/12, para 92.
- 79.
For a more detailed analysis of these issues in the context of the WTO , see Palmenter 1998.
- 80.
Especially around the time when the controversy surrounding the TTIP negotiations reached its apogee. See, for example, Stop TTIP, Stop TTIP: Malmström’s ISDS Proposal Misses the Point, https://stop-ttip.org/stop-ttip-malmstroms-isds-proposal-misses-the-point/ (accessed 2 June 2018) where investment arbitration is referred to as a system of ‘private parallel justice’.
- 81.
In general arbitration rules favour but do not impose confidentiality. See supra, note 12.
- 82.
The many reasons why lack of transparency in investment arbitration is a point of concern cannot be examined in-depth in this study. For a thorough analysis, see Jansen Calamita 2014.
- 83.
On these aspects, see the considerations made by this author elsewhere. In particular, Pantaleo 2017b, pp. 170–173.
- 84.
As we have already seen above (supra, note 15), the situation is different, for example, on the other side of the pond, as the NAFTA countries have adopted high standards by means of a decision of NAFTA Free Trade Commission. Higher standards are also included in the model BIT of those countries. See, for example, Article 29 of the US Model BIT.
- 85.
Adopted by UN General Assembly Resolution 68/109 of 16 December 2013 and come into force on 1 April 2014.
- 86.
The only exception to public hearings occurs when the tribunal deems that appropriate arrangements are necessary to protect confidential or protected information. However, to avoid misuse, the provision in question makes it clear that only that part of the hearing requiring special protection shall be held behind closed door.
- 87.
See supra, note 16. For an analysis of the main features of the Convention, see Stephan Schill 2015, pp. 201–204.
- 88.
See Lucas Bastin 2014, pp. 127–129.
- 89.
The only exception is essentially the EU Commission whose intervention has been aimed at presenting interpretations of EU law without taking a position in favour of one of the parties to the dispute. See Bastin 2014, p. 134.
- 90.
See, ex plurimis, Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A. v. Argentine Republic, ICSID Case No. ARB/03/19 (09 April 2015); Piero Foresti, Laura de Carli & Others v. The Republic of South Africa ICSID Case No. ARB(AF)/07/01 (4 August 2010).
- 91.
See Article 4 UNCITRAL Rules on Transparency.
- 92.
See Bastin 2014, pp. 131–133.
- 93.
See US Model BIT Article 28(3), and Canada-Benin BIT Article 34.
- 94.
See NAFTA Article 1121.
- 95.
See, in particular, Ethyl Corporation v. The Government of Canada, UNCITRAL Award, Award on Jurisdiction, para 91 (24 June 1998), in which the Tribunal stated that Article 1121 NAFTA lists a number of ‘conditions precedent’ without specifying what those conditions actually have to precede. It is worth noting that Article 1121 is titled ‘Conditions Precedent to Submission of a Claim to Arbitration’. It is really hard to see what prevented the Tribunal from reading and applying the second half of the provision in question, which seems to be crystal clear as to what those conditions must precede.
- 96.
See Waste Management, Inc. v. United Mexican States, ICSID Case No. ARB(AF)/98/2, Decision on Jurisdiction, paras 18 et seq. (2 June 2000).
- 97.
As is well known, the EU and all its Member States are a Party to UNCLOS , as well as Canada. The involvement of the EU in the settlement of disputes under this agreement has been thoroughly discussed in Chap. 2, to which the reader is therefore referred.
- 98.
While it is true that EU investment agreements are part and parcel of broader FTAs, all of which also include a State to State dispute settlement covering the entire scope of the FTAs, it is also true that the Parties are under no obligation to choose the dispute settlement established under these FTAs rather than the WTO or other existing international disputes settlements to which they are a Party. Article 29.3(1) CETA, which is meaningfully titled “Choice of forum”, makes this abundantly clear. It states that “[r]ecourse to the dispute settlement provisions of this Chapter is without prejudice to recourse to dispute settlement under the WTO Agreement or under any other agreement to which the Parties are party”.
- 99.
In particular, the ECtHR has awarded almost €2 billion, and the PCA a staggering compensation of approximately €40 billion. These amounts marked a record high for both courts. For further details on the Yukos case see the thoughtful analysis carried out by De Brabandere 2015, pp. 345–355.
- 100.
See Sect. 5.2.4.
- 101.
See Allen and Soave 2014, pp. 55–56.
- 102.
See Titi 2017, p. 6.
- 103.
See the text of the negotiating directives approved by the Council in March 2018, available here: http://data.consilium.europa.eu/doc/document/ST-12981-2017-ADD-1-DCL-1/en/pdf (accessed 4 July 2018).
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Pantaleo, L. (2019). Dispute Settlement Under EU Investment Agreements: An Analysis of the Main Procedural Innovations. In: The Participation of the EU in International Dispute Settlement. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-270-5_4
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DOI: https://doi.org/10.1007/978-94-6265-270-5_4
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