The Investment Court System (‘ICS’) included in the European Union (‘EU’)’s recent investment and trade agreements provides for the creation of a permanent first instance tribunal (‘First Instance Tribunal’) and an appellate tribunal (‘Appeal Tribunal’) drawn from a pre-selected roster of tribunal members. The ICS imposes mandatory transparency of proceedings, as well as a strict code of conduct applicable to all tribunal members. The ICS is expected to address several long-standing criticisms levied against investor-State dispute settlement (‘ISDS’). At the same time, the ICS raises new challenges that must be resolved for its effective operation. These must be addressed first and foremost by the EU and those pioneering trading partners who have so far committed to the ICS; only once resolved will the ICS gain traction with ISDS stakeholders.
In this paper, Jin Woo Kim and Lucy Winnington-Ingram examine the ICS under the EU Agreements. In particular: section 2 sets out an operative summary of the ICS dispute settlement procedure under the EU Agreements; section 3 analyses how the ICS may address criticisms of ISDS; and, lastly, section 4 discusses new challenges posed by the ICS that must be addressed.
Reprinted from Global Trade and Customs Journal, Volume 16, Issue 5, May 2021, pp. 287-296, with permission of Kluwer Law International.
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