Participatory Aspects of Investor-State Dispute Settlement in the EU New Wavee Trade Agreements

Abstract

This article will scrutinize the anatomy of the new EU Free Trade Agreements, in particular their chapters on the protection of foreign investment, from a transparency perspective. The article will put to test the claims that the dispute settlement mechanisms in the new wave treaties are sufficiently participatory and, in fact, are recognizably more transparent than their predecessors. Specific procedural standards related to confidentiality and privacy of proceedings shall be analyzed in the context of the push for transparency in investment arbitration, observable in recent years. Besides procedural guarantees of transparency, the article will also examine relevant substantive rules, directly affecting participatory aspect of dispute settlement (such as adopted definitions of investor, which determine the scope of actors who might become parties to the dispute). Furthermore, the paper will discuss the possible impact of an establishment of an investment court onto forum shopping strategies of the parties in the field of investment-related disputes, including internal forum shopping, as well as parallel proceedings utilizing different procedural mechanisms. In this context, lessons from other fields (in particular international commercial arbitration), related to procedural standards of transparency in cases in which public interest is present, will be highlighted. A recurring proposal of establishment of a global permanent appellate court for investment and commercial arbitration (to review awards in cases in which public interest is involved) will also be invoked.