Stress Test for EU’s Investment Court System: How Will Investments Be Protected in the Comprehensive Agreement on Investment?

Abstract

On 30 December 2020, the European Union (EU) and China agreed in principle to a revamped investment treaty: The Comprehensive Agreement on Investment (CAI). Notably, the EU and China have not decided which investment dispute resolution system will be included under the new agreement. Instead, the EU and China are continuing negotiations on this contentious topic. This article discusses the key features of the proposed investment court system in the context of the CAI negotiations to assess whether China could agree on such a paradigmatic change that would have systemic consequences. The article explains the objective reasons behind China’s partial support for the proposed reforms to the existing investor-state arbitration system. For example, China has supported adding an appellate body without accepting the EU’s full-fledged investment court proposal. Finally, the article identifies the points of convergence and divergence which will shape the CAI negotiations and pave the way to global investor-state dispute settlement (ISDS) reform. comprehensive agreement on investment (CAI), investor-state dispute settlement (ISDS), investment court system (ICS), United Nations Commission on International Trade Law (UNCITRAL Working Group III), Comprehensive Economic and Trade Agreement (CETA), EUVietnam Free Trade Agreement (EVFTA), State-to-state dispute resolution, Achmea case, financial responsibility regulation, European Commission