Many Questions On Potential Multilateral Investment Court System

The European Commission is pushing ahead with its Multilateral Investment Court (MIC) project, but called requests to eliminate specialised investor protection mechanisms unrealistic during a dedicated meeting with stakeholders in Brussels today.

Set a good two weeks before the public comment period (15 March) on a potential basic structure for the MIC, the Commission heard statements from representatives of trade associations, labour unions, environmental and human rights groups and legal experts. The MIC project resulted from considerable opposition to investor-state dispute settlement (ISDS) provisions, currently part of free-trade deals, during negotiations for the just-approved Comprehensive Economic and Trade Agreement (CETA) with Canada and the frozen Transatlantic Trade and Investment Partnership between the EU and the US.

Together with Canada, the Commission Trade Directorate already discussed the MIC at a meeting with 60 country trade representatives at the WTO in Geneva and with 30 ministers and officials during the World Economic Forum in Davos. Malmström purported that a “group of friends” could be driving the development and elaborated that it could be created fresh, but also be built on top of existing mechanisms like the International Centre for Settlement of Investment Disputes (ICSID).

Outlining efficiency, transparency and adherence to values like sustainability as guiding principles for the reform, Malmström acknowledged the deficiencies of ISDS: “Many in the Commission including me think it is old-fashioned,” she said, describing it as “an ad hoc system” and “unfair”.

“The system is in clear need of an overhaul,” Malmström concluded. “So we are overhauling it.“

Business representatives during the consultation today wondered how the Commission would ensure that investors would enjoy a level playing field with regard to investor protection, even during what Luisa Santos from Business Europe called a “testing phase” for a yet unknown new court system. Santos especially wanted to know if US and also China would be on board for the new system. She expressed concerns that otherwise companies in some parts of the world “could have a better or more reliable system” than those being put under the new “test system,” she said.

The possibility to consider exhaustion of domestic courts was rejected by DG Trade official Colin Brown. While an Organisation for Economic Co-operation and Development (OECD) representative and a law expert from the University of Oslo reminded the Commission that local remedies might differ from the uni-dimensional pecuniary remedies foreseen in current investor dispute settlement, Brown said the Commission had not been coming from a position of exhaustion of domestic remedies and it was also not included in CETA.

Many environmental, labour union and human rights experts questioned the lack of ambition in the reform as envisaged by the EU Commission.

Fabian Flues, from Friends of the Earth, said while his organisation is in agreement with the Commission on the need for reform, “we are disappointed that certain options never have been put on the table.” Flues like others asked the Commission to consider the termination of agreements.

Several countries have terminated bilateral investment treaties that include the infamous investor protection mechanisms, for example India, Indonesia and South Africa. During the TTIP open consultation on ISDS many comments questioned the one-sidedness of investor protection, activists said today.

Malmström reacted by pointing out that enforcing labour rights, human rights and environmental protection standards included in the trade agreements through an international court “would be a welcome thing, but it is extremely complicated and cannot be led by DG Trade.” The EU Commission nevertheless has a separate discussion about enforcing such trade agreement provisions.

The Commission expects to wrap up the consultation phase and request a mandate of the Council of EU ministers to negotiate the follow-up mechanism to the investor-state dispute settlement provisions by the end of the year.

To allow to take on a new MIC, countries could be allowed to opt in to the new system in the same way as it was done for the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration, the 2014 “Mauritius Convention on Transparency.”