Escaping from Freedom? The Dilemma of an Improved ISDS Mechanism

Abstract

This article is based on the EFILA’S ‘Inaugural’ Annual Lecture 2015. ISDS in its current international arbitration format has attracted criticism. In response, the EU proposal for ISDS in the TTIP consists of a two-tiered court system, comprising an appeal mechanism empowered to review first-instance decisions on both factual and legal grounds and, the EU says, paving the way for a “multilateral investment court”. The Lecture expressed surprise at the EU proposal of a court mechanism given the CJEU’S unambiguous, historical unease with other similar, parallel international court systems. The Lecture proposed a third way, aimed at addressing these concerns, whereby a Committee – stroke – Interpretive Body, informed by the intentions of the TTIP Parties, would take over the development of TTIP jurisprudence in a more linear and consistent manner, with a longer-term view, whilst ad hoc arbitration tribunals in their current form would focus on the settlement of the discrete factual dispute. Since the Lecture was delivered, the ICS was adopted in both the EU–Vietnam FTA and (in part) the EU–Canada CETA. This contribution ponders how the ICS might work in practice, sit alongside current ISDS tribunals, and contribute to development and jurisprudence in the field.