Resumen de From Arbitral Tribunals to a Multilateral Investment Court: The European Union Approach
Marc Bungenberg, August Reinisch
In every International Investment Agreement (IIA), a very critical component is the dispute settlement mechanism. While the Member States of the European Union (EU) traditionally favored ad hoc or institutional investment arbitration in their respective IIAs, an approach initially also adopted by the EU, they have both changed course. The EU – and its Member States – now favors an Investment Court System (ICS), denouncing the traditional investor State arbitration. Thus, to successfully conclude an IIA in an area of shared competence as confirmed by the Court of Justice of the European Union (CJEU) in its Singapore Opinion, the EU now foresees the ICS in its recently concluded bilateral IIAs, such as, CETA, and EU-Vietnam IPA. The ultimate goal of the EU is to achieve a reform on the multilateral level. In its CETA Opinion the CJEU confirmed the compatibility of the CETA’s ICS with EU Law, provided certain conditions are met, particularly the non-interpretation of EU law by the investment court and the right of access to an independent judicial body. This contribution details how the threshold set by the CJEU in its CETA Opinion, including other fundamental principles of justice could be achieved for the realization of a Multilateral Investment Court (MIC), as the EU continues to engage its partners at the UNCITRAL Working Group III, on its proposal for the reform of the ISDS “From Arbitral Tribunals to a Multilateral Investment Court (MIC).”
