Update: New Public Consultation On Shaping European Investment Dispute Resolution Policy

European Union flag against European Parliament

The European Commission (EC) has launched a new public consultation on the EU’s investment dispute resolution policy along with the options for multilateral reform, including the possible establishment of a permanent multilateral investment court.

The EC is now calling for comments on its most recent proposals, urging members of the mediation, conflict management and dispute resolution community to participate in the process.

Following an earlier consultation on the topic in 2014, the EC published a concept paper in May 2015 on potential improvements to the investor-state dispute settlement (ISDS) provisions in the Transatlantic Trade and Investment Partnership Agreement (TTIP) (see also Cecilia Malmström’s concept paper on reform of ISDS in the TTIP).

Investment court system

Several months later, the EC put forward a proposal to replace the existing ISDS provisions with a new investment court system, for all ongoing and future trade and investment negotiations between the EU and other states. This sent a strong message to the dispute resolution community, in an effort to address growing public opposition to investor state arbitration.

The following year, the EC published an Inception Impact Assessment on a proposal for a Council Decision authorising the EC to negotiate a Convention, in order to establish a multilateral investment court. The questionnaire, which particularly seeks views on the options for a multilateral investment court, is to be read in light of the Impact Assessment report.

However, what does this new consultation mean and where are TTIP negotiations heading in light of the new US presidency?

Hanging in the balance

With the future of many multilateral trade agreements uncertain under the new US administration, there are concerns as to what this means for the EU’s trade policy as a whole. It remains to be seen if the US will pull out of TTIP, as it has done with the Trans Pacific Partnership.

The new administration’s attitude to European unity in general is also a little disconcerting. Trump’s trade advisor recently accused Germany of grossly undervaluing the Euro to gain an unfair trade advantage, however Chancellor Angela Merkel has played down the accusation stressing that the European Central Bank pursues an independent economic policy.

However, despite the stalling of the TTIP negotiations, the EC still has hope for coming to an agreement, as Trump has not yet pulled out.

On Monday, the EC Vice President Jyrki Katainen told Reuters in an interview: “Let’s put it this way: there’s still hope”. He emphasised that EU officials remain committed to strong transatlantic ties and will attempt to resume talks once the new US trade negotiator is in office – adding that the agreement still very important for the US but also for European manufacturers, particularly for small- and medium-sized businesses.

Katainen also noted growing interest from India, the Gulf states and China in securing trade agreements with Europe, in light of their concerns over increasingly protectionist US trade policies under Trump: “These countries or areas have indicated very clearly that they want to fight against protectionism, they want to support rule-based globalization.”

Be part of the conversation

The International Mediation Institute (IMI) Investor-State Mediation Taskforce submitted comments for the last public consultation on this topic launched by the EC in 2014 and is now, looking to update those comments.

The EC has requested that the questionnaires be completed by 15 March 2017. For more information on how to respond please click here or to provide comments to the IMI response you can visit the IMI website.

Written by Natasha Mellersh.

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Natasha Mellersh
 is the editor of the GPC Blog. She is currently pursuing an LLM in Public International Law at Leiden University in the Netherlands. 

Email: natasha.mellersh@globalpound.org
Twitter: @tashalaws

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