Abstract
The EU Commission introduced a two-tiered investment court system to the debate in 2015 and has since been able to implement it in two agreements—CETA and the EU-Vietnam FTA. In its ‘Trade for All’ communication, the Commission also stated that all future agreements concluded with the EU should contain this system for investment protection. Therefore, this investment court system should be used as a starting point for the following assessment, while also considering that this system should be converted into a multilateral system if possible.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
European Commission (2015), p. 24.
- 2.
Article 8.29 CETA, Establishment of a multilateral investment tribunal and appellate mechanism; Article 15 Section 3 Trade in Services, Investment and E-Commerce EU-Vietnam FTA.
- 3.
Cf. thereto for instance Article 8.18 et seqq. CETA.
- 4.
Draft Statutes of the Arbitral Tribunal for Foreign Investment and of the Foreign Investment Court, printed in: UNCTAD, International Investment Instruments: A Compendium Volume III—Regional Integration, Bilateral and Non-governmental Instruments, 1996, p. 259 et seqq.
- 5.
The Unified Agreement for the Investment of Arab Capital in the Arab States, printed in: UNCTAD, International Investment Instruments: A Compendium, Volume II, Regional Instruments, 1996, p. 211 et seqq.
- 6.
Cf. Article XII:1 sentence 1 WTO-Agreement: “Any State or separate customs territory possessing full autonomy in the conduct of its external commercial relations and of the other matters provided for in this Agreement and the Multilateral Trade Agreements may accede to this Agreement, on terms to be agreed between it and the WTO.”
- 7.
Ahl (2009), p. 98 et seqq., in particular. p. 114 et seq.
- 8.
- 9.
CJEU, Opinion 2/15, Singapore FTA, ECLI:EU:C:2017:376.
- 10.
CJEU, Opinion 2/15, Singapore FTA, ECLI:EU:C:2017:376, para. 285 et seqq.
- 11.
Cf. Ruffert and Walter (2009), para. 296.
- 12.
- 13.
ECJ, Opinion 1/94, WTO, ECLI:EU:C:1994:384.
- 14.
Schill (2015), p. 9.
- 15.
Cf. at the WTO, the meeting of the Ministerial Conference at least once every 2 years, and the General Council, composed of representatives of the Member States, whenever appropriate, Article IV of the WTO Agreement.
- 16.
Cf. Article 8.27 para. 2 CETA: “The CETA Joint Committee shall, upon the entry into force of this Agreement, appoint fifteen Members of the Tribunal. Five of the Members of the Tribunal shall be nationals of a Member State of the European Union, five shall be nationals of Canada [Footnote: Either Party may instead propose to appoint up to five Members of the Tribunal of any nationality. In this case, such Members of the Tribunal shall be considered to be nationals of the Party that proposed his or her appointment for the purposes of this Article] and five shall be nationals of third countries.”
- 17.
Voeten (2009), p. 396 et seqq.
- 18.
Mackenzie (2014), p. 741.
- 19.
Woods (2016).
- 20.
- 21.
Like this, Article 4 para. 1 ICJ Statute: “The members of the Court shall be elected by the General Assembly and by the Security Council from a list of persons nominated by the national groups in the Permanent Court of Arbitration, in accordance with the following provisions.” and Art. 4 para. 1 ITLOS Statute: “Each State Party may nominate not more than two persons having the qualifications prescribed in article 2 of this Annex. The members of the Tribunal shall be elected from the list of persons thus nominated.”
- 22.
- 23.
Cf. hereto von Bogdandy and Krenn (2014), p. 529 et seqq.
- 24.
Cf. in this sense also the Council of Europe Assembly Resolution 1646 (2009), Nomination of candidates and election of judges to the European Court of Human Rights; Committee on the Election of Judges to the European Court of Human Rights, Procedure for electing judges to the European Court of Human Rights, AS/Cdh/Inf(2017)01rev4 of 27.4.2017.
- 25.
Cf. last in the EU to fill the “EU” AB position: European Commission, EU Launches Selection of Candidates for the position of WTO Appellate Body member, Press release of 26.10.2016; as well as the public tenders in Germany and Austria for the new appointment of their ECtHR judges’ offices: Richter mit Ruf gesucht, Handelsblatt of 24.11.2009; Straßburger Richter: Sechs Bewerber, Die Presse of 3.11.2014.
- 26.
Article 17 DSU, cf. thereto WTO, WTO receives seven nominations for Appellate Body post, News Items of 23.3.2016; European Commission, EU Launches Selection of Candidates for the position of WTO Appellate Body member, News archive of 26.10.2016.
- 27.
Article 3 ILC-Statute: “The members of the Commission shall be elected by the General Assembly from a list of candidates nominated by the Governments of States Members of the United Nations.”
- 28.
Article 36 para. 4 lit. a) Rome Statute: “Nominations of candidates for election to the Court may be made by any State Party to this Statute, and shall be made either: (i) By the procedure for the nomination of candidates for appointment to the highest judicial offices in the State in question; or (ii) By the procedure provided for the nomination of candidates for the International Court of Justice in the Statute of that Court […].”
- 29.
Cf. Article 4 para. 1 ITLOS Statute: “Each State Party may nominate not more than two persons having the qualifications prescribed in article 2 of this Annex. The members of the Tribunal shall be elected from the list of persons thus nominated.”
- 30.
Cf. indeed Article 3 para. 2 Annex I to the Council decision of 2.11.2004 establishing the European Union Civil Service Tribunal, OJ L 333 of 9.11.2004, p. 7: “Any person who is a Union citizen and fulfils the conditions laid down in the fourth paragraph of Article 225a of the EC Treaty and the fourth paragraph of Article 140b of the EAEC Treaty may submit an application. The Council, acting by a qualified majority on a recommendation from the Court, shall determine the conditions and the arrangements governing the submission and processing of such applications.”
- 31.
Mackenzie (2014), p. 124.
- 32.
Cf. for instance Article 36 para. 4 lit. c) Rome Statute: “Every candidate for election to the Court shall have an excellent knowledge of and be fluent in at least one of the working languages of the Court.” See hereto Resolution ICC-ASP/10/Res.5 of 21.12.2011, Strengthening the International Criminal Court and the Assembly of States Parties, para. 20.
- 33.
See thereto Art. 255 Treaty on the Functioning of the European Union (TFEU): “A panel shall be set up in order to give an opinion on candidates’ suitability to perform the duties of Judge and Advocate-General of the Court of Justice and the General Court before the governments of the Member States make the appointments referred to in Articles 253 and 254. The panel shall comprise seven persons chosen from among former members of the Court of Justice and the General Court, members of national supreme courts and lawyers of recognised competence, one of whom shall be proposed by the European Parliament. The Council shall adopt a decision establishing the panel’s operating rules and a decision appointing its members. It shall act on the initiative of the President of the Court of Justice.” Cf. consequently Council decision of 11.2.2014 appointing the members of the panel provided for in Article 255 of the Treaty on the Functioning of the European Union (2014/76/EU), OJ L 41 of 12.2.2014, p. 18.
- 34.
Cf. Resolution on the Establishment of an Advisory Panel of Experts on Candidates for Election as Judge to the European Court of Human Rights, CM/Res(2010)26 of 10.11.2010.
- 35.
Examples of unsuitable but elected judges of the ECHR in Engel (2012), p. 486 et seqq.
- 36.
Cf. insofar Hackspiel (2015), Art. 255 TFEU, para. 3 et seq.
- 37.
Cf. Hackspiel (2015), Art. 255 TFEU, para. 2; cf. insofar also already the European Convention, CONV 734/03 of 2.5.2003, Art. 224a.
- 38.
Cf. Article 8 ILC-Statute: “At the election the electors shall bear in mind that the persons to be elected to the Commission should individually possess the qualifications required and that in the Commission as a whole representation of the main forms of civilization and of the principal legal systems of the world should be assured.” Article 36 para. 8 lit. a) Rome Statute: “The States Parties shall, in the selection of judges, take into account the need, within the membership of the Court, for: (i) The representation of the principal legal systems of the world; (ii) Equitable geographical representation; and (iii) A fair representation of female and male judges.” Article 9 ICJ Statute: “At every election, the electors shall bear in mind not only that the persons to be elected should individually possess the qualifications required, but also that in the body as a whole the representation of the main forms of civilization and of the principal legal systems of the world should be assured.”
- 39.
Article 17.3 sentence 3 DSU: “The Appellate Body membership shall be broadly representative of membership in the WTO.”
- 40.
In this sense, Weber (2007), p. 135; Preparatory Committee to the WTO, Sub-Committee on Institutional, Procedural and Legal Matters, Establishment of the Appellate Body, Recommendations, PC/IPL/13 of 8.12.1994, para. 6: “[…] Therefore factors such as different geographical areas, levels of development, and legal systems shall be duly taken into account. The question of how this balance is to be achieved is best left to be worked out during the actual consultation and selection procedures.”
- 41.
See for instance Article 3 para. 1 ICJ Statute: “The Court shall consist of fifteen members, no two of whom may be nationals of the same state.” Article 52 para. 2 American Convention on Human Rights (ACHR); Article 3 para. 1 sentence 1 ITLOS Statute.
- 42.
Mackenzie (2014), p. 744.
- 43.
Article 2 para. 2 ITLOS Statute: “In the Tribunal as a whole the representation of the principal legal systems of the world and equitable geographical distribution shall be assured.” Article 36 para. 8 lit. a) Rome Statute: “The States Parties shall, in the selection of judges, take into account the need, within the membership of the Court, for: (i) The representation of the principal legal systems of the world; (ii) Equitable geographical representation […]”. Article 9 ICJ Statute: “At every election, the electors shall bear in mind not only that the persons to be elected should individually possess the qualifications required, but also that in the body as a whole the representation of the main forms of civilization and of the principal legal systems of the world should be assured.”
- 44.
- 45.
Mackenzie (2014), p. 745.
- 46.
Cf. Article 5 para. 1 ICJ Statute: “At least three months before the date of the election, the Secretary-General of the United Nations shall address a written request to the members of the Permanent Court of Arbitration belonging to the states which are parties to the present Statute, and to the members of the national groups appointed under Article 4, paragraph 2, inviting them to undertake, within a given time, by national groups, the nomination of persons in a position to accept the duties of a member of the Court.”
- 47.
Cf. Article 3 para. 2 ILC-Statute: “There shall be no fewer than three members from each geographical group as established by the General Assembly of the United Nations.” See also Article 3 para. 2 ITLOS Statute: “There shall be no fewer than three members from each geographical group as established by the General Assembly of the United Nations.”
- 48.
Cf. Article 9 ILC-Statute: “1. Those candidates, up to the maximum number prescribed for each regional group, who obtain the greatest number of votes and not less than a majority of the votes of the Members present and voting shall be elected. 2. In the event of more than one national of the same State obtaining a sufficient number of votes for election, the one who obtains the greatest number of votes shall be elected, and, if the votes are equally divided, the elder or eldest candidate shall be elected.”
- 49.
Cf. on the difficulties in choosing the ICJ judges in 2014, Akande (2014).
- 50.
- 51.
See here Article 36 para. 8 lit. a) sublit. iii Rome Statute: “A fair representation of female and male judges.”; cf. also Art. 12 para. 2 Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (ACtHPR Protocol): “Due consideration shall be given to adequate gender representation in nomination process.” Cf. with regard to ECHR Mowbray (2008), p. 549.
- 52.
Article 15 para. 1 and 2 TFEU: “(1) In order to promote good governance and ensure the participation of civil society, the Union institutions, bodies, offices and agencies shall conduct their work as openly as possible. (2) The European Parliament shall meet in public, as shall the Council when considering and voting on a draft legislative act.”
- 53.
- 54.
Article 8.27 para. 12 CETA: “In order to ensure their availability, the Members of the Tribunal shall be paid a monthly retainer fee to be determined by the CETA Joint Committee.” The same applies to the second instance in Article 8.28 para. 7 lit. d. CETA.
- 55.
Cf. Article 8.27 para. 4 CETA and Article 12 para. 4 Section 3 Trade in Services, Investment and E-Commerce EU-Vietnam FTA.
- 56.
American Bar Association Section on International Law (2016), Executive Summary & Conclusions and Recommendations, p. 7.
- 57.
Article 36 para. 8 lit. b) Rome Statute: “States Parties shall also take into account the need to include judges with legal expertise on specific issues […].”
- 58.
Article 8.27 para. 4 CETA just mentions expertise “in international investment law, in international trade law and the resolution of disputes arising under international investment or international trade agreements.”
- 59.
Cf. Article 8.27 para. 4 and Article 8.28 para. 4 CETA as well as Article 12 para. 4 and Article 13 para. 7 Section 3 Trade in Services, Investment and E-Commerce EU-Vietnam FTA.
- 60.
Neither WTO-AB, nor ICJ provide for age limits; the ECtHR provides for an age limit of 70 years, cf. Article 23 para. 2 ECHR.
- 61.
This is not a requirement of the ILC, but so far no person has ever been elected to the ILC whose home state is not a UN member.
- 62.
Article 17 para. 3 sentence 2 DSU.
- 63.
On the harmlessness in these cases of state affiliation at the WTO-AB cf. Preparatory Committee to the WTO, Sub-Committee on Institutional, Procedural and Legal Matters, Establishment of the Appellate Body, Recommendations, PC/IPL/13 of 8.12.1994, para. 7: “[…] Members of the Appellate Body should not therefore have any attachment to a government that would compromise their independence of judgment. This requirement would not necessarily rule out persons who, although paid by a government, serve in a function rigorously and demonstrably independent from that government.”
- 64.
Cf. insofar for instance Article 2 ICJ Statute: “The Court shall be composed of a body of independent judges, elected regardless of their nationality from among persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or are jurisconsults of recognized competence in international law.” Cf. also Article 36 para. 3 lit. a) Rome Statute; Article 4 para. 1 Statute of the Inter-American Court of Human Rights (IACtHR Statute); Article IV para. 11 Agreement Establishing the Caribbean Court of Justice (CCJ Agreement).
- 65.
The Bangalore Draft Code of Judicial Conduct 2001 adopted by the Judicial Group on Strengthening Judicial Integrity, as revised at the Round Table Meeting of Chief Justices held at the Peace Palace, The Hague, 25–26.11.2002.
- 66.
International Bar Association’s Human Rights Institute Resolution on the Values Pertaining to Judicial Appointments to International Courts and Tribunals of 31.10.2011.
- 67.
CCJE(2002)OP3DE of 19.11.2002.
- 68.
Article 8.30 para. 1 CETA: “The Members of the Tribunal shall be independent. They shall not be affiliated with any government. [Footnote: For greater certainty, the fact that a person receives remuneration from a government does not in itself make that person ineligible.] They shall not take instructions from any organisation, or government with regard to matters related to the dispute. They shall not participate in the consideration of any disputes that would create a direct or indirect conflict of interest. They shall comply with the International Bar Association Guidelines on Conflicts of Interest in International Arbitration or any supplemental rules adopted pursuant to Article 8.44.2. In addition, upon appointment, they shall refrain from acting as counsel or as party-appointed expert or witness in any pending or new investment dispute under this or any other international agreement.”
- 69.
IBA Guidelines on Conflicts of Interest in International Arbitration, Resolution of the International Bar Association Council of 23.10.2014.
- 70.
Transatlantic Trade and Investment Partnership, Trade in Services, Investment and E-Commerce, Chapter II—Investment, Annex II, http://trade.ec.europa.eu/doclib/docs/2015/september/tradoc_153807.pdf.
- 71.
IBA Guidelines on Conflicts of Interest in International Arbitration, Resolution of the International Bar Association Council of 23.10.2014, General Standard 3—Disclosure by the Arbitrator in connection to the Orange List.
- 72.
Cf. insofar also Article 16 para. 1 ICJ Statute: “No member of the Court may exercise any political or administrative function, or engage in any other occupation of a professional nature.” See thereto also Art. 4 sentence 1 Statute of the Court of Justice of the EU (CJEU Statute): “The Judges may not hold any political or administrative office.”
- 73.
In this sense, Voon (2017), p. 27 et seq. WTO, Post-Employment Guidelines: Communication from the Appellate Body, WT/AB/22 of 16.4.2014.
- 74.
Here one could also mention § 100 para. 2 No. 4 Aktiengesetz (German Stock Corporation Act) or Article 42 para. 2 RL 2006/43/EG comparatively, because if this is the case in commercial law, then this should a fortiori also apply in the area of binding arbitration. These regulations are based on 2-year periods.
- 75.
Transatlantic Trade and Investment Partnership, Trade in Services, Investment and E-Commerce, Chapter II—Investment, Annex II, Code of Conduct for Members of the Tribunal, the Appeal Tribunal and Mediators, Article 6: “All former members must avoid actions that may create the appearance that they were biased in carrying out their duties or derived advantage from the decision or award of the tribunal or Appeal Tribunal.”
- 76.
See also BVerwG (Federal Administrative Court), Judgment of 5.5.2017, Case Number 2 C 45.16, according to which the appearance of a retired judge as a lawyer in the court in which he previously worked confuses the concern that the service is adversely affected and therefore justifies him to prohibit him from doing so for a transitional period. A background consultation is however possible.
- 77.
Cf. Consultative Council of European Judges (2002).
- 78.
Article 6 CJEU Statute: “A Judge may be deprived of his office or of his right to a pension or other benefits in its stead only if, in the unanimous opinion of the Judges and Advocates General of the Court of Justice, he no longer fulfils the requisite conditions or meets the obligations arising from his office. The Judge concerned shall not take part in any such deliberations. If the person concerned is a member of the General Court or of a specialised court, the Court shall decide after consulting the court concerned. The Registrar of the Court shall communicate the decision of the Court to the President of the European Parliament and to the President of the Commission and shall notify it to the President of the Council. In the case of a decision depriving a Judge of his office, a vacancy shall arise on the bench upon this latter notification.”
- 79.
Cf. Article 14 CJEU Statute: “The Judges, the Advocates General and the Registrar shall be required to reside at the place where the Court of Justice has its seat.” Article 12 para. 3 Statute of the International Tribunal for the Law of the Sea (ITLOS Statute): “The President and the Registrar shall reside at the seat of the Tribunal.”
- 80.
Article 9 para. 12 TTIP: “In order to ensure their availability, the Judges shall be paid a monthly retainer fee to be fixed by decision of the […] Committee. [Note: the retainer fee suggested by the EU would be around 1/3rd of the retainer fee for WTO Appellate Body members (i.e. around € 2,000 per month)].” Article 10 para. 12 TTIP: “The Members of the Appeal Tribunal shall be paid a monthly retainer fee and receive a fee for each day worked as a Member, to be determined by decision of the […] Committee. [Note: the retainer and daily fee suggested by the EU would be around the same as for WTO Appeal Tribunal members (i.e. a retainer fee of around € 7,000 per month)].”
- 81.
Article 8.27 para. 12 CETA: “In order to ensure their availability, the Members of the Tribunal shall be paid a monthly retainer fee to be determined by the CETA Joint Committee.” Article 8.28 para. 7 lit. d) CETA: “The CETA Joint Committee shall promptly adopt a decision setting out the following administrative and organisational matters regarding the functioning of the Appellate Tribunal: (d) remuneration of the Members of the Appellate Tribunal”.
- 82.
International Court of Justice, Members of the Court, http://www.icj-cij.org/court/?p1=1&p2=2: “Each Member of the Court receives an annual salary consisting of a base salary (which for 2010 amounts to US$ 166,596) and post adjustment, with a special supplementary allowance of US$ 15,000 for the President.”
- 83.
International Tribunal for the Law of the Sea, Finances, www.itlos.org/general-information/finances/: “The President of the Tribunal, who resides at the seat of the Tribunal, receives an overall annual remuneration of US$ 168,878 and a special annual allowance of US$ 15,000.”
- 84.
For instance, Conditions of service and compensation of the judges of the International Criminal Court, ICC-ASP/2/10, para. 1: “The annual remuneration of full-time judges will be € 180,000 net.”
- 85.
Gartland (2016): “Judges at the Court of Justice of the European Union have received a pay increase of 2.4 per cent this year, bringing their basic salaries to almost € 256,000.”
- 86.
Cf. Article 2 CJEU Statute: “Before taking up his duties each Judge shall, before the Court of Justice sitting in open court, take an oath to perform his duties impartially and conscientiously and to preserve the secrecy of the deliberations of the Court.”
- 87.
For instance Article 19 ICJ Statute: “The members of the Court, when engaged on the business of the Court, shall enjoy diplomatic privileges and immunities.” Article 15 para. 1 IACtHR Statute: “The judges of the Court shall enjoy, from the moment of their election and throughout their term of office, the immunities extended to diplomatic agents under international law. During the exercise of their functions, they shall, in addition, enjoy the diplomatic privileges necessary for the performance of their duties.”
- 88.
See, inter alia, Bundesrichter mit lukrativen Nebenjobs setzen sich Grenzen, FAZ of 3.4.2017, p. 17; Die fragwürdigen Gehaltsexzesse der Bundesrichter, Welt.de of 5.1.2017.
- 89.
Wieduwilt (2017): “Genehmigungspflichtige Nebentätigkeiten sind zu versagen, wenn der Richter mehr als 40 Prozent seines Jahresgehalts nebenbei kassiert.” See also the instructions of the Federal Finance Court. However, rather, the source of ancillary earnings and the type of activity should be crucial—the amount cannot play a significant role.
- 90.
Article 16 para. 1 ICJ Statute: “or engage in any other occupation of a professional nature”. Article 21 para. 3 ECHR: “During their term of office the judges shall not engage in any activity which is incompatible with their independence, impartiality or with the demands of a full-time office […].”
- 91.
Cf. Article 1 of the Verordnung über die Nebentätigkeit der Richter im Bundesdienst of 15.10.1965 (BGBl. 1965 I, 1719), last changed by Article 209 para. 3 of the law of 19.4.2006 (BGBl. 2006 I, 866).
- 92.
Similarly also at the ICJ, cf. Article 17 para. 1 ICJ Statute: “No member of the Court may act as agent, counsel, or advocate in any case.”
- 93.
Cf. Institut de Droit International, Resolution on the Position of the International Judge, 6 RES EN FINAL of 9.9.2011, Art. 1 para. 1: “The quality of international courts and tribunals depends first of all on the intellectual and moral character of their judges. Therefore, the selection of judges must be carried out with the greatest care. Moreover, States shall ensure an adequate geographical representation within international courts and tribunals. They shall also ensure that judges possess the required competence and that the court or tribunal is in a position effectively to deal with issues of general international law. The ability to exercise high jurisdictional functions shall nonetheless remain the paramount criterion for the selection of judges, as pointed out by the Institute in its 1954 Resolution.”
- 94.
- 95.
Also the provisions in the Algeria Accords on the establishment of the IUSCT, in CETA and also in the EU-Vietnam FTA are not suitable for taking on the arbitrators or judges’ appointment, since in these bilateral agreements on of the two contracting parties can appoint one third of the judges and the last third should come from a third state. Cf. Article 8.27 para. 2 CETA: “The CETA Joint Committee shall, upon the entry into force of this Agreement, appoint fifteen Members of the Tribunal. Five of the Members of the Tribunal shall be nationals of a Member State of the European Union, five shall be nationals of Canada and five shall be nationals of third countries.”
- 96.
Article 13 para. 1 ICJ Statute with the possibility of re-election; Article 23 para. 1 ECHR without the possibility of re-election.
- 97.
Article 17.2 DSU: “The DSB shall appoint persons to serve on the Appellate Body for a four-year term, and each person may be reappointed once.” Recently, a change was discussed (prolongation without possibility of re-appointment), but blocked by the US, cf. Statement by the United States at the Meeting of the WTO Dispute Settlement Body of 23.5.2016, The Issue of Possible Reappointment of one Appellate Body Member, in particular. p. 7.
- 98.
Possibility of re-appointment for instance also for CJEU Judges (Article 253 TFEU), but also in the current CETA and Vietnam-EU FTA ICS, cf. Article 8.27 para. 5 sentence 1 CETA, Article 12 para. 5 sentence 1 Section 3 Trade in Services, Investment and E-Commerce EU-Vietnam FTA.
- 99.
The US recently blocked the re-appointment of Seung Wha Chang (Korea) as an AB member, cf. Statement by the United States at the Meeting of the WTO Dispute Settlement Body of 23.5.2016, The Issue of possible Reappointment of one Appellate Body Member.
- 100.
Hereto inter alia Ulfstein (2009), p. 139. Cf. in the same sense also Institut de Droit International, Resolution on the Position of the International Judge, 6 RES EN FINAL of 9.9.2011, Art. 2.1: “In order to strengthen the independence of judges, it would be desirable that they be appointed for long terms of office, ranging between nine and twelve years. Such terms of office should not be renewable.”
- 101.
Article 36 para. 9 lit. a) Rome Statute: “Subject to subparagraph (b), judges shall hold office for a term of nine years and, subject to subparagraph (c) and to article 37, paragraph 2, shall not be eligible for re-election.”
- 102.
Cf. for instance Article 13 para. 2 ICJ Statute: “The judges whose terms are to expire at the end of the above-mentioned initial periods of three and six years shall be chosen by lot to be drawn by the Secretary-General immediately after the first election has been completed.”
- 103.
Cf. also American Bar Association Section on International Law (2016), Executive Summary & Conclusions and Recommendations, p. 14.
- 104.
Cf. Article 13 para. 4 ICJ Statute; Article 5 para. 4 ITLOS Statute.
- 105.
Cf. Article 6 CJEU Statute: “A Judge may be deprived of his office or of his right to a pension or other benefits in its stead only if, in the unanimous opinion of the Judges and Advocates General of the Court of Justice, he no longer fulfils the requisite conditions or meets the obligations arising from his office. The Judge concerned shall not take part in any such deliberations. If the person concerned is a member of the General Court or of a specialised court, the Court shall decide after consulting the court concerned […].”
- 106.
As provided for in the CJEU Statute and the ICJ Statute; cf. Article 6 CJEU Statute; Article 18 para. 1 ICJ Statute.
- 107.
Cf. Article 6 CJEU Statute.
- 108.
As also provided for in Article 9a CJEU Statute: “The Judges shall elect the President and the Vice-President of the Court of Justice from among their number for a term of three years. They may be re-elected.”
- 109.
Cf. Article 16 CJEU Statute: “The Court of Justice shall form chambers consisting of three and five Judges.” Article 25 lit. b) Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocols No. 11 and No. 14; Article 8.27 para. 6 CETA.
- 110.
For this see Article 25 para. 1 ICJ Statute: “The full Court shall sit except when it is expressly provided otherwise in the present Statute.” It is however provided differently in Article 13 para. 1 of the ITLOS Statute: “All available members of the Tribunal shall sit; a quorum of 11 elected members shall be required to constitute the Tribunal.”
- 111.
Cf. Article 25 para. 2 sentence 2 Rules of Court of the ECtHR: “The composition of the Sections shall be geographically and gender balanced and shall reflect the different legal systems among the Contracting Parties.”
- 112.
Cf. Article 16, CJEU Statute: “The Judges shall elect the Presidents of the chambers from among their number.” Working procedures for appellate review, WTO Dispute Settlement procedure, Rule 7.1: “Each division shall have a Presiding Member, who shall be elected by the Members of that division.”
- 113.
Cf. WTO Law, WTO Dispute Settlement procedure, Working procedures for appellate review, Rule 7.2: “The responsibilities of the Presiding Member shall include: (a) coordinating the overall conduct of the appeal proceeding; (b) chairing all oral hearings and meetings related to that appeal; and (c) coordinating the drafting of the appellate report.”
- 114.
In case of the WTO Appellate Body, the members of the Chambers may be nationals of the parties to the proceedings. Cf. Working procedures for appellate review, WTO Dispute Settlement procedure, Rule 6.
- 115.
EFILA (2016), p. 15.
- 116.
- 117.
- 118.
Or other possible plaintiffs.
- 119.
As provided for in Article 31 para. 2 and 3 ICJ Statute; Article 26 para. 4 European Convention on Human Rights: “There shall sit as an ex officio member of the Chamber and the Grand Chamber the judge elected in respect of the High Contracting Party concerned. If there is none or if that judge is unable to sit, a person chosen by the President of the Court from a list submitted in advance by that Party shall sit in the capacity of judge.”
- 120.
Article 8.23 para. 5 CETA: “The investor may, when submitting its claim, propose that a sole Member of the Tribunal should hear the claim. The respondent shall give sympathetic consideration to that request, in particular if the investor is a small or medium-sized enterprise or the compensation or damages claimed are relatively low.”
- 121.
Article 8.29 CETA: “The Parties shall pursue with other trading partners the establishment of a multilateral investment tribunal and appellate mechanism for the resolution of investment disputes. Upon establishment of such a multilateral mechanism, the CETA Joint Committee shall adopt a decision providing that investment disputes under this Section will be decided pursuant to the multilateral mechanism and make appropriate transitional arrangements.”
- 122.
According to some authors a large part of the General Agreement on Tariffs and Trade (GATT) and WTO panel reports are derived from work authored by the Secretariat. Cf. Howse (2000), p. 38 et seqq.
- 123.
Articles 17 para. 7 and 27 DSU. Cf. under https://www.wto.org/english/thewto_e/secre_e/intro_e.htm. Pauwelyn (2015), p. 795 et. seq.
- 124.
- 125.
Hodgson (2015), p. 749.
- 126.
Cf. Advisory Centre of the WTO, www.acwl.ch.
- 127.
Article 25 para. 1 ICSID Convention: “The jurisdiction of the Centre shall extend to any legal dispute arising directly out of an investment, between a Contracting State (or any constituent subdivision or agency of a Contracting State designated to the Centre by that State) and a national of another Contracting State. […]” Cf. for example, Griebel (2008), p. 130; Tietje (2009), § 4, para. 56 et seqq.
- 128.
Cf. Article 2 para. 2 Mauritius Convention: “Where the UNCITRAL Rules on Transparency do not apply pursuant to paragraph 1, the UNCITRAL Rules on Transparency shall apply to an investor-State arbitration, whether or not initiated under the UNCITRAL Arbitration Rules, in which the respondent is a Party that has not made a reservation relevant to that investor-State arbitration under article 3(1), and the claimant agrees to the application of the UNCITRAL Rules on Transparency.”
- 129.
See Kaufmann-Kohler and Potestà (2016), p. 86.
- 130.
Cf. Article 3 para. 1 lit. c) Mauritius-Convention: “A Party may declare that: […] c) Article 2(2) shall not apply in investor-State arbitration in which it is a respondent.”
- 131.
Cf. Howse (2017), p. 54 et seqq.
- 132.
See also Article 36 para. 1 ICJ Statute: “The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.” See also the requirements for ICSID under Article 25 para. 1 ICSID Convention; cf. Griebel (2008), p. 124 et seqq.
- 133.
For example, Article 36 para. 4 ICJ Statute: “Such declarations shall be deposited with the Secretary-General of the United Nations, who shall transmit copies thereof to the parties to the Statute and to the Registrar of the Court.”
- 134.
Cf. Johnson and Volkov (2013), p. 361 et seqq.
- 135.
See for example Braun (2012), p. 168.
- 136.
Article 21 ITLOS Statute: “The jurisdiction of the Tribunal comprises all disputes and all applications submitted to it in accordance with this Convention and all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal.”
- 137.
Griebel (2008), p. 127; Consortium Groupement L.E.S.I.-Dipenta v. Algeria, ICSID Case No. ARB/03/08, Award, 10.1.2005, 2.1, para. 8.
- 138.
Franke (2013), p. 185.
- 139.
Cf. Timmer (2012), p. 363 et seqq.
- 140.
Article 8.1 CETA: “investment means every kind of asset that an investor owns or controls, directly or indirectly, that has the characteristics of an investment, which includes a certain duration and other characteristics such as the commitment of capital or other resources, the expectation of gain or profit, or the assumption of risk.”
- 141.
Cf. Bischoff and Happ (2015), p. 495 et seqq.
- 142.
Article 36 para. 3 ICSID Convention: “The Secretary-General shall register the request unless he finds, on the basis of the information contained in the request, that the dispute is manifestly outside the jurisdiction of the Centre. He shall forthwith notify the parties of registration or refusal to register.”
- 143.
Article 41 para. 5 ICSID Arbitration Rules, 2006: “Unless the parties have agreed to another expedited procedure for making preliminary objections, a party may, no later than 30 days after the constitution of the Tribunal, and in any event before the first session of the Tribunal, file an objection that a claim is manifestly without legal merit. The party shall specify as precisely as possible the basis for the objection. The Tribunal, after giving the parties the opportunity to present their observations on the objection, shall, at its first session or promptly thereafter, notify the parties of its decision on the objection. The decision of the Tribunal shall be without prejudice to the right of a party to file an objection pursuant to paragraph (1) or to object, in the course of the proceeding, that a claim lacks legal merit.”
- 144.
Article 41 para. 6 ICSID Arbitration Rules, 2006: “If the Tribunal decides that the dispute is not within the jurisdiction of the Centre or not within its own competence, or that all claims are manifestly without legal merit, it shall render an award to that effect.”
- 145.
Trans-Global Petroleum, Inc. v. Jordan, ICSID Case No. ARB/07/25, Decision on the Respondent’s Objection under Rule 41(5) of the ICSID Arbitration Rules, 12.5.2008; Brandes Investment Partners, LP v. Venezuela, ICSID Case No ARB/08/3, Decision on the Respondent’s Objection under Rule 41(5) of the ICSID Arbitration Rules, 2.2.2009 (Appeal under Art. 41(5), but no dismissal); Global Trading Resource Corp. and Globex International, Inc. v. Ukraine, ICSID Case No. ARB/09/11, Award, 1.12.2010; RSM Production Corp. and others v. Grenada, ICSID Case No. ARB/10/6, Award, 10.12.2010. Cf. Diop (2010), p. 312 et seq.; Raviv (2015), p. 673.
- 146.
Raviv (2015), p. 675.
- 147.
Article 8.32 para. 1 CETA: “The respondent may, no later than 30 days after the constitution of the division of the Tribunal, and in any event before its first session, file an objection that a claim is manifestly without legal merit.”
- 148.
Article 8.33 para. 1 CETA: “Without prejudice to a Tribunal’s authority to address other objections as a preliminary question or to a respondent’s right to raise any such objections at an appropriate time, the Tribunal shall address and decide as a preliminary question any objection by the respondent that, as a matter of law, a claim, or any part thereof, submitted pursuant to Article 8.23 is not a claim for which an award in favour of the claimant may be made under this Section, even if the facts alleged were assumed to be true.”
- 149.
Article 28 para. 4 US Model BIT 2012: “Without prejudice to a tribunal’s authority to address other objections as a preliminary question, a tribunal shall address and decide as a preliminary question any objection by the respondent that, as a matter of law, a claim submitted is not a claim for which an award in favor of the claimant may be made under Article 34.”
- 150.
Sullivan and Ingle (2015), p. 736.
- 151.
- 152.
Bungenberg (2014), p. 410 et seqq.
- 153.
- 154.
See here Baumgartner (2016), p. 114 et seqq. Cf. Article 8.1 CETA: “For the purposes of this definition, an enterprise of a Party is: (a) an enterprise that is constituted or organised under the laws of that Party and has substantial business activities in the territory of that Party.” General Provisions No. 4 para. c) EU-Vietnam FTA: “a ‘juridical person of the EU’ or a ‘juridical person of Viet Nam’ means a juridical person set up in accordance with the laws of a Member State of the European Union or of Viet Nam respectively, and engaged in substantive business operations in the territory of the EU or of Viet Nam respectively”.
- 155.
For this see Statements to be entered in the Council minutes, Commission Declaration on the meaning of the term “substantial business activities” in Art. 8.1 of the Agreement (Definitions of investment), OJ L 11, 14.1.2017, p. 9, No. 31: “The term ‘substantial business activities’ in CETA is to be understood in the same sense as the term ‘substantive business operations’ used in Article V(6) and XXVIII(m) of the WTO General Agreement on Trade in Services. The EU has formally submitted a notification to the WTO (1) stating that it interprets this term as equivalent to the term ‘effective and continuous link with the economy’ utilised in the General Programme for the abolition of restrictions on freedom of establishment adopted by the Council on 15 January 1962 pursuant to Article 54 of the Treaty Establishing the European Economic Community (2). It results that the Commission considers that a Canadian corporation not owned by Canadian nationals could only bring a dispute pursuant to Chapter 8, Section F of the Agreement where it can establish that it has substantive business activities in Canada having an effective and continuous link with the Canadian economy, in the sense of establishment as applied under the EU Treaty. This will be the basis of the Commission’s attitude in the implementation of CETA.”
- 156.
See here, Baumgartner (2016), p. 166 et seqq.; cf. also Philipp Morris v. Australia, Award on Jurisdiction, 17.12.2015, in particular para. 508.
- 157.
See also here Baumgartner (2016), p. 114 et seqq.
- 158.
Article 8.1 CETA: “A natural person who is a citizen of Canada and has the nationality of one of the Member States of the European Union is deemed to be exclusively a natural person of the Party of his or her dominant and effective nationality. A natural person who has the nationality of one of the Member States of the European Union or is a citizen of Canada, and is also a permanent resident of the other Party, is deemed to be exclusively a natural person of the Party of his or her nationality or citizenship, as applicable.”
- 159.
See Article 25 para. 2 lit. a) ICSID Convention according to which the Convention is not applicable for an investor who is a plaintiff in case he also has a nationality of the host state.
- 160.
- 161.
Baumgartner (2016), p. 116 et seqq.; alternatively Plama Consortium Limited v. Bulgaria, ICSID Case No. ARB/03/24, Decision on Jurisdiction, 8.2.2005, para. 158 et seqq.
- 162.
See here, Article 17 Section 3 Trade in Services, Investment and E-Commerce EU-Vietnam FTA: “For greater certainty, the Tribunal shall decline jurisdiction where the dispute had arisen, or was foreseeable on the basis of a high degree of probability, at the time when the claimant acquired ownership or control of the investment subject to the dispute and the Tribunal determines, on the basis of the facts of the case, that the claimant has acquired ownership or control of the investment for the main purpose of submitting the claim under this Section. The possibility to decline jurisdiction in such circumstances is without prejudice to other jurisdictional objections which could be entertained by the Tribunal.”
- 163.
Baumgartner (2016), p. 274 et seqq.
- 164.
See also Lorz and Busch (2015), p. 577 et seqq.
- 165.
Article 8.18 para. 3 CETA: “For greater certainty, an investor may not submit a claim under this Section if the investment has been made through fraudulent misrepresentation, concealment, corruption, or conduct amounting to an abuse of process.”
- 166.
The underlying IIA between the parties may be amended in case both/all the parties to the IIA are also parties to the MIC.
- 167.
Article V para. 1 lit. d) NYC: “The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties […].”
- 168.
Article 52 ICSID Convention: “(1) Either party may request annulment of the award by an application in writing addressed to the Secretary-General on one or more of the following grounds: (a) that the Tribunal was not properly constituted; (b) that the Tribunal has manifestly exceeded its powers […].”
- 169.
Article 8.24 CETA: “Where a claim is brought pursuant to this Section and another international agreement and: (a) there is a potential for overlapping compensation; or (b) the other international claim could have a significant impact on the resolution of the claim brought pursuant to this Section, the Tribunal shall, as soon as possible after hearing the disputing parties, stay its proceedings or otherwise ensure that proceedings brought pursuant to another international agreement are taken into account in its decision, order or award.”
- 170.
Article 8.22 para. 1 CETA: “(f) withdraws or discontinues any existing proceeding before a tribunal or court under domestic or international law with respect to a measure alleged to constitute a breach referred to in its claim; and (g) waives its right to initiate any claim or proceeding before a tribunal or court under domestic or international law with respect to a measure alleged to constitute a breach referred to in its claim.”
- 171.
Cf. Schill, (2016a).
- 172.
Cf. Art. 8.22 para. 1 clause f) and g) CETA.
- 173.
Schill (2016a).
- 174.
For example, Chapter 29 of CETA provides for State-State dispute settlement. However, it refers to all disputes regarding interpretation and application of the Treaty and not to investment disputes alone. See also, Article 9 para. 1 and 2 of the German Model BIT 2009: “(1) Disputes between the Contracting States concerning the interpretation or application of this Treaty should as far as possible be settled by the Governments of the two Contracting States. (2) If a dispute cannot thus be settled, it shall upon the request of either Contracting State be submitted to an arbitral tribunal […].”
- 175.
The interpretation may be binding only on the contracting parties, cf. Article 15 para. 8 sentence 1 Canada-China Foreign Investment Protection Agreement (FIPA): “The decision of the arbitral tribunal shall be final and binding on both Contracting Parties.”
- 176.
- 177.
See also Potestà (2013), p. 762.
- 178.
To that extent, see also Kulick (2016), p. 146 et seqq.
- 179.
See. Article 9.18 para. 1 Trans-Pacific Partnership (TPP) or Article 10 para. 1 Germany-Oman BIT: “Disputes concerning investments between a Contracting State and an investor of the other Contracting State should as far as possible be settled amicably between the parties in dispute.”
- 180.
Article 33 ICSID Convention: “Any conciliation proceeding shall be conducted in accordance with the provisions of this Section and, except as the parties otherwise agree, in accordance with the Conciliation Rules in effect on the date on which the parties consented to conciliation. If any question of procedure arises which is not covered by this Section or the Conciliation Rules or any rules agreed by the parties, the Commission shall decide the question.”
- 181.
Cf. Article 8.20 CETA: “1. The disputing parties may at any time agree to have recourse to mediation. 2. Recourse to mediation is without prejudice to the legal position or rights of either disputing party under this Chapter and is governed by the rules agreed to by the disputing parties including, if available, the rules for mediation adopted by the Committee on Services and Investment pursuant to Article 8.44.3(c). 3. The mediator is appointed by agreement of the disputing parties. The disputing parties may also request that the Secretary General of ICSID appoint the mediator.4. The disputing parties shall endeavour to reach a resolution of the dispute within 60 days from the appointment of the mediator. 5. If the disputing parties agree to have recourse to mediation, Articles 8.19.6 and 8.19.8 shall not apply from the date on which the disputing parties agreed to have recourse to mediation to the date on which either disputing party decides to terminate the mediation. A decision by a disputing party to terminate the mediation shall be transmitted by way of a letter to the mediator and the other disputing party.”
- 182.
Article 2.21 Modernised Global Agreement with Mexico, Trade F2/MC/cg/766399; Article 3 TTIP.
- 183.
- 184.
See also Markert (2009), p. 158 et seqq.
- 185.
Article 4 para. 5 TTIP: “The request for consultations must be submitted: (a) within three years of the date on which the claimant or, as applicable, the locally established company first acquired, or should have first acquired, knowledge of the treatment alleged to be inconsistent with the provisions referred to in Article 1(1) and of the loss or damage alleged to have been incurred thereby; or (b) within two years of the date on which the claimant or, as applicable, the locally established company ceases to pursue claims or proceedings before a tribunal or court under the domestic law of a Party; and, in any event, no later than 10 years after the date on which the claimant or, as applicable, its locally established company, first acquired, or should have first acquired knowledge, of the treatment alleged to be inconsistent with the provisions referred to in Article 1(1) and of the loss or damage alleged to have been incurred thereby.”
- 186.
Article 8.19 para. 6 CETA: “A request for consultations must be submitted within: (a) three years after the date on which the investor or, as applicable, the locally established enterprise, first acquired or should have first acquired, knowledge of the alleged breach and knowledge that the investor or, as applicable, the locally established enterprise, has incurred loss or damage thereby; or (b) two years after an investor or, as applicable, the locally established enterprise, ceases to pursue claims or proceedings before a tribunal or court under the law of a Party, or when such proceedings have otherwise ended and, in any event, no later than 10 years after the date on which the investor or, as applicable, the locally established enterprise, first acquired or should have first acquired knowledge of the alleged breach and knowledge that the investor has incurred loss or damage thereby.”
- 187.
Article 4 para. 2 Section 3 Trade in Services, Investment and E-Commerce EU-Vietnam FTA.
- 188.
For example, see Article 8.19 para. 8 CETA: “In the event that the investor has not submitted a claim pursuant to Article 8.23 within 18 months of submitting the request for consultations, the investor is deemed to have withdrawn its request for consultations and, if applicable, its notice requesting a determination of the respondent, and shall not submit a claim under this Section with respect to the same measures. This period may be extended by agreement of the disputing parties.”
- 189.
Cf. Rules of Court of the ECtHR, Article 51 para. 1 and Article 52 para. 1.
- 190.
See also Article 52 para. 1, Rules of Court of the ECtHR: “Any application made under Article 34 of the Convention shall be assigned to a Section by the President of the Court, who in so doing shall endeavour to ensure a fair distribution of cases between the Sections.”
- 191.
Cf. Article 8.21 CETA: “1. If the dispute cannot be settled within 90 days of the submission of the request for consultations, the request concerns an alleged breach of this Agreement by the European Union or a Member State of the European Union and the investor intends to submit a claim pursuant to Article 8.23, the investor shall deliver to the European Union a notice requesting a determination of the respondent. 2. The notice under paragraph 1 shall identify the measures in respect of which the investor intends to submit a claim. 3. The European Union shall, after having made a determination, inform the investor as to whether the European Union or a Member State of the European Union shall be the respondent. 4. In the event that the investor has not been informed of the determination within 50 days of delivering its notice requesting such determination: (a) if the measures identified in the notice are exclusively measures of a Member State of the European Union, the Member State shall be the respondent; (b) if the measures identified in the notice include measures of the European Union, the European Union shall be the respondent. 5. The investor may submit a claim pursuant to Article 8.23 on the basis of the determination made pursuant to paragraph 3, and, if no such determination has been communicated to the investor, on the basis of the application of paragraph 4. 6. If the European Union or a Member State of the European Union is the respondent, pursuant to paragraph 3 or 4, neither the European Union, nor the Member State of the European Union may assert the inadmissibility of the claim, lack of jurisdiction of the Tribunal or otherwise object to the claim or award on the ground that the respondent was not properly determined pursuant to paragraph 3 or identified on the basis of the application of paragraph 4. 7. The Tribunal shall be bound by the determination made pursuant to paragraph 3 and, if no such determination has been communicated to the investor, the application of paragraph 4.”
- 192.
In this context, see § 123 VwGO (Code of Administrative Court Procedure, Germany); Article 32 BVerfGG (Act on the Federal Constitutional Court, Germany).
- 193.
Article 41 ICJ Statute: “1. The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party. 2. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council.” See also Article 25 Statute of the ITLOS.
- 194.
See for example, Article 8.39 para. 1 CETA.
- 195.
Cf. Article 7 DSU; Hilf and Salomon (2010), p. 176, para. 29.
- 196.
The ICSID Secretariat publishes basic information about a dispute after registration of the dispute.
- 197.
As per the powers provided to the ICSID Tribunal in Article 41 of the ICSID Convention; in International Courts, cf. Article 36 para 6 ICJ Statute.
- 198.
For more details about the parallel membership of the EU and its member states in the WTO, see Tietje (2006), p. 161 et seqq.
- 199.
Herrmann and Streinz (2014), § 11, para. 154 et seqq.
- 200.
Article 8.21 CETA: Determination of the respondent for disputes with the European Union or its Member States: “1. If the dispute cannot be settled within 90 days of the submission of the request for consultations, the request concerns an alleged breach of this Agreement by the European Union or a Member State of the European Union and the investor intends to submit a claim pursuant to Article 8.23, the investor shall deliver to the European Union a notice requesting a determination of the respondent. 2. The notice under paragraph 1 shall identify the measures in respect of which the investor intends to submit a claim. 3. The European Union shall, after having made a determination, inform the investor as to whether the European Union or a Member State of the European Union shall be the respondent. 4. In the event that the investor has not been informed of the determination within 50 days of delivering its notice requesting such determination: (a) if the measures identified in the notice are exclusively measures of a Member State of the European Union, the Member State shall be the respondent; (b) if the measures identified in the notice include measures of the European Union, the European Union shall be the respondent. 5. The investor may submit a claim pursuant to Article 8.23 on the basis of the determination made pursuant to paragraph 3, and, if no such determination has been communicated to the investor, on the basis of the application of paragraph 4. 6. If the European Union or a Member State of the European Union is the respondent, pursuant to paragraph 3 or 4, neither the European Union, nor the Member State of the European Union may assert the inadmissibility of the claim, lack of jurisdiction of the Tribunal or otherwise object to the claim or award on the ground that the respondent was not properly determined pursuant to paragraph 3 or identified on the basis of the application of paragraph 4. 7. The Tribunal shall be bound by the determination made pursuant to paragraph 3 and, if no such determination has been communicated to the investor, the application of paragraph 4.”
- 201.
Council and Commission Decision of 23 September 1997 on the conclusion, by the European Communities, of the Energy Charter Treaty and the Energy Charter Protocol on energy efficiency and related environmental aspects, OJ L 69, 9.3.1998, p. 115.
- 202.
As stated, inter alia, in the Statement submitted by the European Communities to the Secretariat of the Energy Charter pursuant to Article 26(3)(b)(ii) of the Energy Charter Treaty: “The Communities and the Member States will, if necessary, determine among them who is the respondent party to arbitration proceedings initiated by an Investor of another Contracting Party. In such case, upon the request of the Investor, the Communities and the Member States concerned will make such determination within a period of 30 days.”
- 203.
Article 9 Regulation (EU) No 912/2014 of the European Parliament and of the Council of 23 July 2014 establishing a framework for managing financial responsibility linked to investor-to-state dispute settlement tribunals established by international agreements to which the European Union is party, OJ L 257, 28.8.2014, p. 121, Respondent status: “1. The Member State concerned shall act as the respondent except where either of the following situations arise: (a) the Commission, following consultations pursuant to Article 6, has taken a decision pursuant to paragraph 2 or 3 of this Article within 45 days of receiving the notice or notification referred to in Article 8; or (b) the Member State, following consultations pursuant to Article 6, has confirmed to the Commission in writing that it does not intend to act as the respondent within 45 days of receiving the notice or notification referred to in Article 8. If either of the situations referred to in point (a) or (b) arise, the Union shall act as the respondent. 2. The Commission may decide by means of implementing acts, based on a full and balanced factual analysis and legal reasoning provided to the Member States, in accordance with the advisory procedure referred to in Article 22(2), that the Union is to act as the respondent where one or more of the following circumstances arise: (a) the Union would bear all or at least part of the potential financial responsibility arising from the dispute in accordance with the criteria laid down in Article 3; or (b) the dispute also concerns treatment afforded by the institutions, bodies, offices or agencies of the Union. 3. The Commission may decide by means of implementing acts, based on a full and balanced factual analysis and legal reasoning provided to the Member States in accordance with the examination procedure referred to in Article 22(3), that the Union is to act as the respondent where similar treatment is being challenged in a related claim against the Union in the WTO, where a panel has been established and the claim concerns the same specific legal issue, and where it is necessary to ensure a consistent argumentation in the WTO case. 4. In acting pursuant to this Article, the Commission shall ensure that the Union’s defence protects the financial interests of the Member State concerned. 5. The Commission and the Member State concerned shall immediately after receiving the notice or notification referred to in Article 8 enter into consultations pursuant to Article 6 on the management of the case pursuant to this Article. The Commission and the Member State concerned shall ensure that any deadlines set down in the agreement are respected. 6. When the Union acts as the respondent in accordance with paragraphs 2 and 5, the Commission shall consult the Member State concerned on any pleading or observation prior to the finalisation and submission thereof. Representatives of the Member State concerned shall, at the Member State’s request and at its expense, form part of the Union’s delegation to any hearing and the Commission shall take due account of the Member State’s interest. 7. The Commission shall immediately inform the European Parliament and the Council of any dispute in which this Article is applied and the manner in which it has been applied.”
- 204.
In this regard, the Financial Responsibility Regulation provides an opportunity for the EU and Member States to agree on the legal costs as well the liability for damages in cases where the EU acts as a respondent, but the responsibility lies with the Member States. Article 12 Regulation (EU) No 912/2014 of the European Parliament and of the Council of 23 July 2014 establishing a framework for managing financial responsibility linked to investor-to-state dispute settlement tribunals established by international agreements to which the European Union is party, OJ L 257, 28.8.2014, p. 121, Acceptance by the Member State concerned of potential financial responsibility where the Union is the respondent: “Where the Union acts as the respondent in any disputes in which a Member State would be liable to bear all or part of the potential financial responsibility, the Member State concerned may, at any time, accept any potential financial responsibility arising from the arbitration. To this end, the Member State concerned and the Commission may enter into arrangements dealing with, inter alia: (a) mechanisms for the periodic payment of costs arising from the arbitration; (b) mechanisms for the payment of any awards made against the Union. This Regulation applies to arbitration cases but not to a future MIC.”
- 205.
Cf. Article 8.18 para. 1 and 2 CETA: “claims to have suffered loss or damage.”
- 206.
Article 8.31 para. 2 CETA: “The Tribunal shall not have jurisdiction to determine the legality of a measure, alleged to constitute a breach of this Agreement, under the domestic law of a Party. For greater certainty, in determining the consistency of a measure with this Agreement, the Tribunal may consider, as appropriate, the domestic law of a Party as a matter of fact. In doing so, the Tribunal shall follow the prevailing interpretation given to the domestic law by the courts or authorities of that Party and any meaning given to domestic law by the Tribunal shall not be binding upon the courts or the authorities of that Party.”
- 207.
Cf. della Cananea (2010), p. 56 et. seqq.
- 208.
Article 8.36 para. 5 CETA: “Hearings shall be open to the public. The Tribunal shall determine, in consultation with the disputing parties, the appropriate logistical arrangements to facilitate public access to such hearings. If the Tribunal determines that there is a need to protect confidential or protected information, it shall make the appropriate arrangements to hold in private that part of the hearing requiring such protection.”
- 209.
Cf. Article 33 para 9 Section 3, Trade in Services, Investment and E-Commerce EU-Vietnam FTA: “At the request of one of the claimants, the consolidating division of the Tribunal may take such measures as it sees fit in order to preserve the confidentiality of protected information of that claimant vis-à-vis other claimants. Such measures may include the submission of redacted versions of documents containing protected information to the other claimants or arrangements to hold parts of the hearing in private.”
- 210.
Article 6 para. 1 UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration: “[…] hearings for the presentation of evidence or for oral argument (“hearings”) shall be public.”
- 211.
The proceedings before the Federal Constitutional Court of Germany are free of charge according to Article 34 para. 1 BVerfGG (Act on the Federal Constitutional Court, Germany). No one should be prevented from invoking their fundamental rights owing to cost reasons. According to Article 34 para. 2 BVerfGG (Act on the Federal Constitutional Court, Germany), misuse of this provision can be punished with a fine of up to EUR 2600.
- 212.
Article 139 Rules of Procedure of the General Court, OJ L 105, 23.4.2015, p. 1: “Proceedings before the General Court shall be free of charge, except that: (a) where a party has caused the General Court to incur avoidable costs, in particular where the action is manifestly an abuse of process, the General Court may order that party to refund them; (b) where copying or translation work is carried out at the request of a party, the cost shall, in so far as the Registrar considers it excessive, be paid for by that party on the Registry’s scale of charges referred to in Article 37; (c) in the event of any repeated failure to comply with the requirements of these Rules or of the practice rules referred to in Article 224, requiring regularisation to be sought, the costs involved in the requisite processing thereof by the General Court shall, at the request of the Registrar, be paid for by the party concerned on the Registry’s scale of charges referred to in Article 37.” Correspondingly, see Article 143 Rules of Procedure of the Court of Justice, OJ L 265, 29.9.2012, p. 1: “Proceedings before the Court shall be free of charge, except that […].”
- 213.
- 214.
Dolzer and Schreuer (2012), p. 299.
- 215.
Bondar (2016), p. 46.
- 216.
Dolzer and Schreuer (2012), p. 299.
- 217.
See also Article 8.26 CETA: “1. Where there is third party funding, the disputing party benefiting from it shall disclose to the other disputing party and to the Tribunal the name and address of the third party funder. 2. The disclosure shall be made at the time of the submission of a claim, or, if the financing agreement is concluded or the donation or grant is made after the submission of a claim, without delay as soon as the agreement is concluded or the donation or grant is made.”
- 218.
- 219.
Cf. von Goeler (2016), p. 87.
- 220.
Shaw (2017), p. 111 et. seq.
- 221.
Sharp and Marsh (2017).
- 222.
Scherer (2013), p. 96.
- 223.
Cf. Krajewski (2015), p. 20, Article 23.
- 224.
Permanent Court of Arbitration, Financial Assistance Fund for Settlement of International Disputes, Terms of Reference and Guidelines (as approved by the Administrative Council on 11 December 1995); Secretary-General’s Trust Fund to Assist States in the Settlement of Disputes through the International Court of Justice, A/59/37221, 21.9.2004; Bekker (1993), pp. 659–668.
- 225.
Cf. Article 41 Protocol No. 3 CJEU Statute: “Where the defending party, after having been duly summoned, fails to file written submissions in defence, judgment shall be given against that party by default. An objection may be lodged against the judgment within one month of it being notified. The objection shall not have the effect of staying enforcement of the judgment by default unless the Court of Justice decides otherwise.” Similar provision in Article 53 ICJ Statute: “Whenever one of the parties does not appear before the Court, or fails to defend its case, the other party may call upon the Court to decide in favour of its claim.”
- 226.
British Petroleum Co Ltd (Libya) v. Libya (1982); see also Mangoldt (1983), p. 503 et seqq.
- 227.
Cf. Article 62 para. 1 ICJ Statute: “Should a state consider that it has an interest of a legal nature which may be affected by the decision in the case, it may submit a request to the Court to be permitted to intervene.” Article 10 para. 2 DSU: “Any Member having a substantial interest in a matter before a panel and having notified its interest to the DSB (referred to in this Understanding as a “third party”) shall have an opportunity to be heard by the panel and to make written submissions to the panel. These submissions shall also be given to the parties to the dispute and shall be reflected in the panel report.” See also Article 36 ECHR and Article 31 ITLOS Statute.
- 228.
Article 23 TTIP Proposal-Investment Chapter—Intervention by third parties.
- 229.
Article 23 TTIP Proposal-Investment Chapter: “1. The Tribunal shall permit any natural or legal person which can establish a direct and present interest in the result of the dispute (the intervener) to intervene as a third party. The intervention shall be limited to supporting, in whole or in part, the award sought by one of the disputing parties. 2. An application to intervene must be lodged within 90 days of the publication of submission of the claim pursuant to Article 6. The Tribunal shall rule on the application within 90 days, after giving the disputing parties an opportunity to submit their observations. 3. If the application to intervene is granted, the intervener shall receive a copy of every procedural document served on the disputing parties, save, where applicable, confidential documents. The intervener may submit a statement in intervention within a time period set by the Tribunal after the communication of the procedural documents. The disputing parties shall have an opportunity to reply to the statement in intervention. The intervener shall be permitted to attend the hearings held under this Chapter and to make an oral statement. 4 In the event of an appeal, a natural or legal person who has intervened before the Tribunal shall be entitled to intervene before the Appeal Tribunal. Paragraph 3 shall apply mutatis mutandis. 5. The right of intervention conferred by this Article is without prejudice to the possibility for the Tribunal to accept amicus curiae briefs from third parties in accordance with Article 18. 6. For greater certainty, the fact that a natural or legal person is a creditor of the claimant shall not be considered as sufficient in itself to establish that it has a direct and present interest in result of the dispute.”
- 230.
Cf. Article 24 TTIP Proposal, Investment Chapter: “The Tribunal, at the request of a disputing party or, after consulting the disputing parties, on its own initiative, may appoint one or more experts to report to it in writing on any factual issue concerning environmental, health, safety, or other matters raised by a disputing party in a proceeding.”
- 231.
Cf. Article 89 Rules of Court of the ICJ: “1. If in the course of proceedings instituted by means of an application, the applicant informs the Court in writing that it is not going on with the proceedings, and if, at the date on which this communication is received by the Registry, the respondent has not yet taken any step in the proceedings, the Court shall make an order officially recording the discontinuance of the proceedings and directing the removal of the case from the list. A copy of this order shall be sent by the Registrar to the respondent.”
- 232.
Cf. della Cananea (2010), p. 56 et. seq.
- 233.
Article 57 ICJ Statute: “If the judgment does not represent in whole or in part the unanimous opinion of the judges, any judge shall be entitled to deliver a separate opinion.” See also Article 45 para. 2 ECHR.
- 234.
Lamprecht (1992), p. 376.
- 235.
Cf. Article 47 ICSID Convention: “Except as the parties otherwise agree, the Tribunal may, if it considers that the circumstances so require, recommend any provisional measures which should be taken to preserve the respective rights of either party.”
- 236.
Article 8.34 CETA: “The Tribunal may order an interim measure of protection to preserve the rights of a disputing party or to ensure that the Tribunal’s jurisdiction is made fully effective, including an order to preserve evidence in the possession or control of a disputing party or to protect the Tribunal’s jurisdiction. The Tribunal shall not order attachment or enjoin the application of the measure alleged to constitute a breach referred to in Article 8.23. For the purposes of this Article, an order includes a recommendation.”
- 237.
Cf. Perenco v. Ecuador, ICSID Case No. ARB/08/6, 8.5.2009, para. 50: “It is pertinent to recall that in any ICSID arbitration one of the parties will be a sovereign State, and where provisional measures are granted against it the effect is necessarily to restrict the freedom of the State to act as it would wish. Interim measures may thus restrain a State from enforcing a law pending final resolution of the dispute on the merits […]. While the enactment of a law by a sovereign State, upheld as constitutional in that State, is a matter of importance, it cannot be conclusive or preclude the Tribunal from exercise of its power to grant provisional measures. […] At this provisional stage, the Tribunal cannot approach the issue on the assumption that either party’s contention is correct. Its role, analogous to that of the City Oriente Tribunal, is to dispose of disputes arising between the parties in connection with the Participation Contracts.”
- 238.
Cf. Quiborax S.A., Non-Metallic Minerals S.A. v. Bolivia, ICSID Case No. ARB/06/2, 26.2.2010, para. 1 et. seq.: “1. The present decision deals with a Request for Provisional Measures […] by which Claimants request that the Arbitral Tribunal: (1) Order Bolivia and/or Bolivia’s agencies or entities to refrain from engaging in any conduct that aggravates the dispute between the parties and/or alters the status quo, including any conduct, resolution or decision related to criminal proceedings in Bolivia against persons directly or indirectly related to the present arbitration; (2) Order Bolivia and/or Bolivi’s agencies or entities to discontinue immediately and/or to cause to be discontinued all proceedings in Bolivia, including criminal proceedings and any course of action relating in any way to this arbitration and which jeopardize the procedural integrity of these proceedings; (3) Order Bolivia and/or Bolivia’s agencies or entities to discontinue immediately and/or to cause to be discontinued all proceedings in Bolivia, including criminal proceedings and any course of action relating in any way to this arbitration and which threaten the exclusivity of the ICSID arbitration. 2. In their Reply on Provisional Measures (‘Claimants’ Reply’), Claimants supplemented this request with a fourth request for relief: (4) Order Bolivia and/or Bolivia’s agencies or entities to deliver to Claimants the corporate administration of NMM sequestered in the course of the criminal proceedings.”
- 239.
- 240.
Article 8.40 CETA: “A respondent shall not assert, and the Tribunal shall not accept a defence, counterclaim, right of setoff, or similar assertion, that an investor or, as applicable, a locally established enterprise, has received or will receive indemnification or other compensation pursuant to an insurance or guarantee contract in respect of all or part of the compensation sought in a dispute initiated pursuant to this Section.”
- 241.
Cf. Abaclat and others v. Argentina, Decision on Jurisdiction and Admissibility, 4.8.2011, ICSID Case No. ARB/07/5, para. 551: “The procedure necessary to deal with the collective aspect of the present proceedings concern the method of the Tribunal’s examination, as well as the manner of representation of Claimants. However, it does not affect the object of such examination. Thus, the Tribunal remains obliged to examine all relevant aspects of the claims relating to Claimants’ rights under the BIT as well as to Respondent’s obligations thereunder subject to the Parties’ submissions.” Ambiente Ufficio S.p.A. and others v. Argentine Republic (formerly Giordano Alpi and others v. Argentine Republic), ICSID Case No. ARB/08/9, Decision on Jurisdiction and Admissibility, 8.2.2013. See also Beess and Chrostin (2012), p. 514 et seqq.; van Houte and McAsey (2012), p. 235 et seqq.; Aggarwal and Maynard (2014), p. 825 et seqq.
- 242.
Cf. Hindelang (2015), p. 20: “Solche Klagen werfen zahlreiche Probleme auf, die sich bei Investor-Staat-Schiedsverfahren schwer lösen lassen. Auch tragen sie zum Schutz des einzelnen Investors wenig bei. Insbesondere ist die Gefahr des Missbrauchs und des Entstehens einer Klageindustrie nicht ganz von der Hand zu weisen. Besonders gefährlich sind Sammelklagen, wenn sie – vergleichbar den class actions in den USA – mit einem sog. Opt-out-Verfahren ausgestaltet werden. Dieses problematische Rechtsinstitut darf daher keinesfalls in Deutschland und Europa übernommen werden und entsprechend auch nicht Eingang in von der EU abgeschlossenen Investitionsschutzabkommen finden.”
- 243.
Article 59 ICJ Statute: “The decision of the Court has no binding force except between the parties and in respect of that particular case.” Article 296 para. 2 UNCLOS: “Any such decision shall have no binding force except between the parties and in respect of that particular dispute.”
- 244.
Article 256 para. 1 and 2 TFEU: “Decisions given by the General Court under this paragraph may be subject to a right of appeal to the Court of Justice on points of law only, under the conditions and within the limits laid down by the Statute.”
- 245.
Bipartisan Trade Promotion Authority Act, Trade Act of 2002, Public Law No. 107-210 dated 6.8.2002, 116 Stat. 933, 19 USC 3801, Section 2102(3) G.iv): negotiating objective of “providing for an appellate body or similar mechanism to provide coherence to the interpretations of investment provisions in trade agreements.” See also US-Chile FTA 2003, Article 10.19 para. 10: “If a separate multilateral agreement enters into force as between the Parties that establishes an appellate body for purposes of reviewing awards rendered by tribunals constituted pursuant to international trade or investment agreements to hear investment disputes, the Parties shall strive to reach an agreement that would have such appellate body review awards rendered under Article 10.25 in arbitrations commenced after the appellate body’s establishment.”
- 246.
Canada-Korea FTA 2014, Annex 8-E: “Within three years after the date this Agreement enters into force, the Parties shall consider whether to establish a bilateral appellate body or similar mechanism to review awards rendered pursuant to Article 8.42 in arbitrations commenced after they establish the appellate body or similar mechanism.”
- 247.
China-Australia FTA 2014, Article 9.23: “Within three years after the date of entry into force of this Agreement, the Parties shall commence negotiations with a view to establishing an appellate mechanism to review awards rendered under Article 9.22 in arbitrations commenced after any such appellate mechanism is established. Any such appellate mechanism would hear appeals on questions of law.”; Korea-Australian FTA 2014, Annex 11-E: “Within three years after the date of entry into force of this Agreement, the Parties shall consider whether to establish a bilateral appellate body or similar mechanism to review awards rendered under Article 11.26 in arbitrations commenced after they establish the appellate body or similar mechanism.”
- 248.
China-Japan-Korea Trilateral investment agreement.
- 249.
Article 9.23 para. 11 TPP: “In the event that an appellate mechanism for reviewing awards rendered by investor-State dispute settlement tribunals is developed in the future under other institutional arrangements, the Parties shall consider whether awards rendered under Article 9.29 (Awards) should be subject to that appellate mechanism. The Parties shall strive to ensure that any such appellate mechanism they consider adopting provides for transparency of proceedings similar to the transparency provisions established in Article 9.24 (Transparency of Arbitral Proceedings).”
- 250.
ICSID Secretariat (2004), p. 14 et seqq.
- 251.
ICSID Secretariat (2005), p. 4: “it would be premature to attempt to establish such an ICSID mechanism at this stage, particularly in view of the difficult technical and policy issues raised.”
- 252.
Yannaca-Small (2008), p. 223 et seq.
- 253.
Article 8.28 para. 1 CETA: “An Appellate Tribunal is hereby established to review awards rendered under this Section.”
- 254.
Article 13 para. 1 Section 3 Trade in Services, Investment and E-Commerce, EU-Vietnam FTA: “A permanent Appeal Tribunal is hereby established to hear appeals from the awards issued by the Tribunal.”
- 255.
Article 10 para. 1 Section 3 Investment-Chapter TTIP- Draft: “A permanent Appeal Tribunal is hereby established to hear appeals from the awards issued by the Tribunal.”
- 256.
Article 2.28 para. 1 Investment-Chapter- EU-Mexico FTA: “A permanent Appeal Tribunal is hereby established to hear appeals from the awards issued by the Tribunal.”
- 257.
Article 29 para. 4 Section 3 Investment-Chapter TTIP-Draft: “A disputing party lodging an appeal shall provide security for the costs of appeal and for the amount provided for in the provisional award.”
- 258.
Cf. Article 17 para. 4 sentence 1 DSU: “Only parties to the dispute, not third parties, may appeal a panel report.”
- 259.
Article 17 para. 4 sentence 2 DSU: “Third parties which have notified the DSB of a substantial interest in the matter pursuant to paragraph 2 of Article 10 may make written submissions to, and be given an opportunity to be heard by, the Appellate Body.” See also Working procedures for appellate review, WTO, Rule 24.
- 260.
Article 29 para. 1 sentence 1 Section 3 Investment-Chapter, TTIP Draft: “Either disputing party may appeal before the Appeal Tribunal a provisional award, within 90 days of its issuance.”
- 261.
Article 16 para. 4 sentence 1 WTO- DSU: “Within 60 days after the date of circulation of a panel report to the Members, the report shall be adopted at a DSB meeting unless a party to the dispute formally notifies the DSB of its decision to appeal or the DSB decides by consensus not to adopt the report.”
- 262.
Similar to WTO-DSU. Cf. Working procedures for appellate review, WTO, Rule 20.
- 263.
Article 8.28 para. 2 CETA “The Appellate Tribunal may uphold, modify or reverse the Tribunal’s award […].”
- 264.
Cf. Article 8.28 para. 7 lit. b), para. 9 lit. c) subclause iii CETA.
- 265.
- 266.
For more information on powers of the second instance, see American Bar Association Section on International Law (2016), Executive Summary & Conclusions and Recommendations, p. 80.
- 267.
Article 28 para. 5 Section 3 Trade in Services, Investment and E-Commerce EU-Vietnam FTA: “As a general rule, the appeal proceedings shall not exceed 180 days from the date a party to the dispute formally notifies its decision to appeal to the date the Appeal Tribunal issues its decision. When the Appeal Tribunal considers that it cannot issue its decision within 180 days, it shall inform the disputing parties in writing of the reasons for the delay together with an estimate of the period within which it will issue its decision. In no case should the proceedings exceed 270 days.”
- 268.
Article 17 para. 5 DSU: “As a general rule, the proceedings shall not exceed 60 days from the date a party to the dispute formally notifies its decision to appeal to the date the Appellate Body circulates its report. In fixing its timetable the Appellate Body shall take into account the provisions of paragraph 9 of Article 4, if relevant. When the Appellate Body considers that it cannot provide its report within 60 days, it shall inform the DSB in writing of the reasons for the delay together with an estimate of the period within which it will submit its report. In no case shall the proceedings exceed 90 days.”
- 269.
Article 29 para. 3 TTIP: “As a general rule, the appeal proceedings shall not exceed 180 days from the date a party to the dispute formally notifies its decision to appeal to the date the Appeal Tribunal issues its decision. When the Appeal Tribunal considers that it cannot issue its decision within 180 days, it shall inform the disputing parties in writing of the reasons for the delay together with an estimate of the period within which it will issue its decision. In no case should the proceedings exceed 270 days.”
- 270.
Article 17 para. 5 DSU: “As a general rule, the proceedings shall not exceed 60 days from the date a party to the dispute formally notifies its decision to appeal to the date the Appellate Body circulates its report. In fixing its timetable the Appellate Body shall take into account the provisions of paragraph 9 of Article 4, if relevant. When the Appellate Body considers that it cannot provide its report within 60 days, it shall inform the DSB in writing of the reasons for the delay together with an estimate of the period within which it will submit its report. In no case shall the proceedings exceed 90 days.”
- 271.
Article 17 para. 6 DSU: “An appeal shall be limited to issues of law covered in the panel report and legal interpretations developed by the panel.”
- 272.
Ohlhoff (2003), C.I.2, para. 106.
- 273.
ICSID Secretariat (2004), Annex, p. 4.
- 274.
Article 52 ICSID Convention: “(1) Either party may request annulment of the award by an application in writing addressed to the Secretary-General on one or more of the following grounds: (a) that the Tribunal was not properly constituted; (b) that the Tribunal has manifestly exceeded its powers; (c) that there was corruption on the part of a member of the Tribunal; (d) that there has been a serious departure from a fundamental rule of procedure; or (e) that the award has failed to state the reasons on which it is based.”
- 275.
Article 8.28 para. 2 CETA: “[…] (a) errors in the application or interpretation of applicable law; (b) manifest errors in the appreciation of the facts, including the appreciation of relevant domestic law; (c) the grounds set out in Article 52(1) (a) through (e) of the ICSID Convention, in so far as they are not covered by paragraphs (a) and (b).”
- 276.
- 277.
Cf. Schill (2016b), p. 118.
- 278.
Cf. Ohlhoff (2003), C.I.2, para. 106.
- 279.
ICSID Secretariat (2004), Annex, p. 3: “Such a set of ICSID Appeals Facility Rules could provide for the establishment of an Appeals Panel composed of 15 persons elected by the Administrative Council of ICSID on the nomination of the Secretary-General of the Centre. The terms of the Panel members would be staggered. Eight of the first 15 would serve for three years; all others would be elected for six year terms. Each member would be from a different country. They would all have to be persons of recognized authority, with demonstrated expertise in law, international investment and investment treaties.”
- 280.
Article 17 para. 1 sentence 3 DSU: “It shall be composed of seven persons, three of whom shall serve on any one case. Persons serving on the Appellate Body shall serve in rotation.”
- 281.
Article 8.28 para. 5 CETA: “The division of the Appellate Tribunal constituted to hear the appeal shall consist of three randomly appointed Members of the Appellate Tribunal.”
- 282.
Working procedures for appellate review, WTO, Rule 4.3: “In accordance with the objectives set out in paragraph 1, the division responsible for deciding each appeal shall exchange views with the other Members before the division finalizes the appellate report for circulation to the WTO Members. […].”
- 283.
Kaufmann-Kohler et al. (2006).
- 284.
Article 47 ICJ Procedural Rules: “The Court may at any time direct that the proceedings in two or more cases be joined. It may also direct that the written or oral proceedings, including the calling of witnesses, be in common; or the Court may, without effecting any formal joinder, direct common action in any of these respects.”
- 285.
Article 47 ITLOS Procedural Rules: “The Tribunal may at any time direct that the proceedings in two or more cases be joined. It may also direct that the written or oral proceedings, including the calling of witnesses, be in common; or the Tribunal may, without effecting any formal joinder, direct common action in any of these respects.”
- 286.
Article 1126 para. 3 NAFTA; Article 10.25 para. 2 CAFTA-DR; Article 15.24 para. 2 US-Singapore FTA; Article 33.3 Uruguay-US BIT; Article 10.24 para. 2 US-Morocco FTA; Article G.27.3 Canada-Chile FTA; Article 83.2 Japan-Mexico FTA.
References
Abi-Saab G (1997) Ensuring the best bench: ways of selecting judges. In: Peck C, Lee RS (eds) Increasing the effectiveness of the International Court of Justice. M. Nijhoff, Boston, pp 165–206
Aggarwal M, Maynard S (2014) Investment treaty arbitration post-Abaclat: towards a taxonomy of mass claims. Cambridge J Int Comp Law 3:825–852
Ahl B (2009) Die Anwendung völkerrechtlicher Verträge in China. Springer, Heidelberg
Akande D (2014) ICJ Elections 2014: UN General Assembly and Security Council Elect four Judges to the ICJ But Fail to Agree on a Fifth, Again!. EJIL: Talk! of 10.11.2014
American Bar Association Section on International Law (2016) Investment Treaty Working Group: task force report on the Investment Court System proposal, initial task force discussion paper of 14.10.2016
Baetens F (2016) The European Union’s proposed Investment Court System. Legal Issues Econ Integr 43:367–384
Baumgartner J (2016) Treaty shopping in international investment law. Oxford University Press, Oxford
Beess J, Chrostin C (2012) Sovereign debt restructuring and mass claims arbitration before the ICSID, the Abaclat case. Harv Int Law Rev 53:505–517
Bekker PHF (1993) International legal aid in practice: the ICJ Trust Fund. Am J Int Law 84:660–668
Bernardini P (2017) Reforming investor-state dispute settlement: the need to balance both parties’ interests. ICSID Rev 32:38–57
Bischoff JA, Happ R (2015) The notion of investment. In: Bungenberg M, Griebel J, Hobe S, Reinisch A (eds) International investment law – a handbook. C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, pp 495–544
Bjorklund AK (2013) The role of counterclaims in rebalancing investment law. Lewis Clark Law Rev 17:461–480
Bondar K (2016) Allocation of costs in investor-state and commercial arbitration: towards a harmonized approach. Arbitration Int 32:45–58
Braun TR (2012) Ausprägungen der Globalisierung: Der Investor als partielles Subjekt im Internationalen Investitionsrecht, Qualität und Grenzen dieser Wirkungseinheit. Nomos, Baden-Baden
Bungenberg M (2010) Going global? The EU common commercial policy after Lisbon. In: European yearbook of international economic law 2010. Springer, Heidelberg, pp 123–152
Bungenberg M (2014) The scope of application of EU (model) investment agreements. J World Investment Trade 15:402–421
Caron DD (2000) War and international adjudication: reflections on the 1899 peace conference. Am J Int Law 94:4–30
Consultative Council of European Judges (2002) Opinion No 3 of the European Judges (CCJE) to the Council of Europe’s Committee of Ministers on the principles and rules governing the professional conduct of judges, in particular professional law, incompatible behavior and impartiality, CCJE(2002)OP3DE of 19.11.2002
Craven M (2014) Statehood, self-determination, and recognition. In: Evans M (ed) International law, 4th edn. Oxford University Press, Oxford, pp 203–251
De Baere G, Chané AL, Wouters J (2015) The contribution of international and supranational courts to the rule of law: a framework for analysis. In: De Baere G, Wouters J (eds) The contribution of international and supranational courts to the rule of law. Edward Elgar, Cheltenham, pp 19–82
Della Cananea G (2010) Minimum standards of procedural justice in administrative adjudication. In: Schill S (ed) International investment law and comparative public law. Oxford University Press, Oxford, pp 39–74
Dimopoulos A (2011) EU foreign investment law. Oxford University Press, New York
Diop A (2010) Objection under rule 41(5) of the ICSID arbitration rules. ICSID Rev 25:312–336
Dolzer R, Schereuer C (2012) Principles of international investment law, 2nd edn. Oxford University Press, Oxford
Douglas Z (2009) The international law of investment claims. Cambridge University Press, New York
Eberhard P (2014) Investitionsschutz am Scheideweg, TTIP und die Zukunft des globalen Investitionsrechts, Internationale Politikanalyse, May 2014
EFILA (2016) Task force paper regarding the proposed International Court System (ICS) dated 1.2.2016
Engel NP (2012) Mehr Transparenz für die Wahrung professioneller Qualität bei den Richter-Wahlen zum EGMR. Europäische Grundrechte-Zeitschrift 486:492
European Commission (2015) Trade for all – towards a more responsible trade and investment policy, COM (2015) 497
Franck SD (2009) Development and outcomes of investment treaty arbitration. Harv Int Law J 50:435–489
Franke F (2013) Der personelle Anwendungsbereich des internationalen Investitionsschutzrechts. Nomos, Baden-Baden
Gartland F (2016) EU judges total pay package now more than €300,000. The Irish Times of 11.1.2016
Griebel J (2008) Internationales Investitionsrecht. C.H. Beck, München
Hackspiel S (2015) Art. 255 AEUV. In: von der Groeben H, Hatje J, Schwarze A (eds) Europäisches Unionsrecht, 7th edn. Nomos, Baden-Baden
Herrmann C, Streinz T (2014) Die EU als Mitglied der WTO. In: von Arnauld A (ed) Europäische Außenbeziehungen, EnzEuR, vol 10. Nomos, Baden-Baden, § 11, pp 587–680
Heuser R (2010) Die unruhigen Ränder Chinas: Tibet und Taiwan. In: Giegerich T, Proelß A (eds) Krisenherde im Fokus des Völkerrechts – Trouble spots in the focus of international law. Duncker & Humblot, Berlin, pp 99–122
Hilf M, Salomon T (2010) Das Streitbeilegungssystem der WTO. In: Hilf M, Oeter S (eds) WTO-Recht, 2nd edn. Nomos, Baden-Baden, pp 165–202
Hindelang S (2015) Grundzüge eines modernen Investitionsschutzes – Ziele und Handlungsempfehlungen, Ein realpolitischer Vorschlag zur Reform des Investitionsschutzes zwischen CETA-Text und den Kommissionsvorschlägen zu TTIP, Harnack-Haus Reflections
Hodgson M (2015) Costs in investment treaty arbitration: the case for reform. In: Kalicki JE, Joubin-Bret A (eds) Reshaping the investor-state dispute settlement system. Brill Nijhoff, Leiden, pp 748–759
Hoffmann AK (2013) Counterclaims in investment arbitration. ICSID Rev 28:438–453
Hoffmann AK (2015) Denial of benefits. In: Bungenberg M, Griebel J, Hobe S, Reinisch A (eds) International investment law – a handbook. C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, pp 598–613
Howse R (2000) Adjudicative legitimacy and treaty interpretation in international trade law: the early years of WTO jurisprudence. In: Weiler JHH (ed) The EU, the WTO and the NAFTA: towards a common law of international trade? Oxford University Press, New York, pp 35–58
Howse R (2017) International investment law and arbitration: a conceptual framework. IILJ Working Paper 2017/1
ICSID Secretariat (2004) Possible improvements of the framework for ICSID arbitration. Discussion paper of 22.10.2004
ICSID Secretariat (2005) Suggested changes to the ICSID rules and regulations. Working paper of 12.5.2005
Johnson L, Volkov O (2013) Investor-state contracts, host-state “Commitments” and the myth of stability in international law. Am Rev Int Arbitration 24:361–415
Kaufmann-Kohler G, Potestà M (2016) Can the Mauritius Convention serve as a model for the reform of investor-state arbitration in connection with the introduction of a permanent investment tribunal or an appeal mechanism?
Kaufmann-Kohler G, Boisson de Chazournes L, Bonnin V, Mbengue MM (2006) Consolidation of proceedings in investment arbitration: how can multiple proceedings arising from the same or related situations be handled efficiently? Final report on the Geneva Colloquium of 22.4.2006. ICSID Rev – Foreign Investment Law J 21:59–125
Koeth W (2016) Can the Investment Court System (ICS) save TTIP and CETA? EIPA working paper 2016/W/01
Konrad S (2015) Protection of investments owned by states. In: Bungenberg M, Griebel J, Hobe S, Reinisch A (eds) International investment law – a handbook. C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, pp 545–554
Krajewski M (2015) Modell-Investitionsschutzvertrag mit Investor-Staat-Schiedsverfahren für Industriestaaten unter Berücksichtigung der USA, Bundesministerium für Wirtschaft und Energie
Kulick A (2016) State-state investment arbitration as a means of reassertion of control – from antagonism to dialogue. In: Kulick A (ed) Reassertion of control over the investment treaty regime. Cambridge University Press, Cambridge, pp 128–152
Lamm C, Hellbeck ER (2013) Third-party funding in investor-state arbitration introduction and overview. In: Cremades BM, Dimolitsa A (eds) Third-party funding in international arbitration. Dossiers/ICC Institute of World Business Law, vol 10, pp 101–121
Lamprecht R (1992) Richter contra Richter, Abweichende Meinungen und ihre Bedeutung für die Rechtskultur. Nomos, Baden-Baden
Lange S (2016) Denial-of-Benefits-Klauseln in internationalen Investitionsschutzverträgen. Nomos, Baden-Baden
Lorz RA, Busch M (2015) Investment in accordance with the law – specifically corruption. In: Bungenberg M, Griebel J, Hobe S, Reinisch A (eds) International investment law – a handbook. C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, pp 577–589
Mackenzie R (2014) The selection of international judges. In: Romano C, Alter KJ, Shany Y (eds) The Oxford handbook of international adjudication. Oxford University Press, Oxford, pp 737–756
Mackenzie R, Malleson K, Martin P, Sands P (2010) Selecting international judges – principle, process, and politics. Oxford University Press, Oxford
Mangoldt H (1983) Versäumnisverfahren in der internationalen (Schieds-)Gerichtsbarkeit. In: Mosler H, Bernhardt R (eds) Völkerrecht als Rechtsordnung, internationale Gerichtsbarkeit, Menschenrechte: Festschrift für Hermann Mosler. Springer, Berlin, pp 503–528
Markert L (2009) Streitschlichtungsklauseln in Investitionsschutzabkommen: zur Notwendigkeit der Differenzierung von jurisdiction und admissibility in Investitionsschiedsverfahren. Nomos, Baden-Baden
Mowbray A (2008) The consideration of gender in the process of appointing judges to the European Court of Human Rights. Hum Rights Law Rev 8:549–559
Ohlhoff S (2003) Die Streitbeilegung in der WTO. In: Berrisch G, Prieß HJ (eds) WTO-Handbuch. C.H. Beck, München, pp 677–750
Pauwelyn J (2007) Appeal without remand, a design flaw in WTO dispute settlement and how to fix it. ICTSD issue paper no. 1
Pauwelyn J (2015) The rule of law without the rule of lawyers? Why investment arbitrators are from mars, trade adjudicators from venus. Am J Int Law 109:761–805
Potestà M (2013) State-to-state dispute settlement pursuant to bilateral investment treaties: is there potential? In: Boschiero N, Scovazzi T, Pitea C, Ragni C (eds) International courts and the development of international law: essays in honour of Tullio Treves. T.M.C. Asser Press, The Hague, pp 753–770
Raviv A (2015) Achieving a faster ICSID. In: Kalicki JE, Joubin-Bret A (eds) Reshaping the investor-state dispute settlement system. Brill Nijhoff, Leiden, pp 653–717
Reinisch A (2016) The European Union and investor-state dispute settlement: from investor-state arbitration to a permanent investment court. CIGI-paper no. 2
Roberts A (2014) State-to-state investment treaty arbitration: a hybrid theory of interdependent rights and shared interpretive authority. TDM 11(1)
Roberts A (2017) Would a multilateral investment court be biased? Shifting to a treaty party framework of analysis. EJIEL: Talk! of 28.4.2017
Ruffert M, Walter C (2009) Institutionalisiertes Völkerrecht. C.H. Beck, München
Scherer M (2013) Third-party funding in international arbitration: towards mandatory disclosure of funding agreements? In: Cremades BM, Dimolitsa A (eds) Third-party funding in international arbitration, Dossiers/ICC Institute of World Business Law, vol 10, p 96
Schermers HG, Blokker N (2011) International institutional law, unity within diversity. Martinus Nijhoff, Leiden
Schill S (2015) Reforming investor-state dispute settlement (ISDS): conceptual framework and options for the way forward. E15 Initiative
Schill S (2016a) The European Commission’s proposal of an “Investment Court System” for TTIP: stepping stone or stumbling block for multilateralizing international investment law? ASIL Insights 20(9)
Schill S (2016b) Sind Regelungen zur Investor-Staat-Streitbeilegung in EU-Freihandelsabkommen sinnvoll? Kölner Schrift zum Wirtschaftsrecht 7:115–121
Schreuer C (2004) Travelling the BIT route: of waiting periods, umbrella clauses and forks in the road. J World Investment Trade 5:231–256
Sharp G, Marsh B (2017) A new seat at the mediation table? The impact of third-party funding on the mediation process. Kluwer Mediation Blog of 1.4.2017
Shaw GJ (2017) Third-party funding in investment arbitration: how non-disclosure can cause harm for the sake of profit. Arbitration Int 33:109–120
Steinitz M (2011) Whose claim is this anyway? Third-party litigation funding. Minn Law Rev 95:1268–1338
Sullivan J, Ingle D (2015) Interim costs orders: the tribunal’s tool to encourage procedural economy. In: Kalicki JE, Joubin-Bret A (eds) Reshaping the investor-state dispute settlement system. Brill Nijhoff, Leiden, pp 731–747
Tietje C (2003) Die institutionelle Ordnung der WTO. In: Berrisch G, Prieß HJ (eds) WTO-Handbuch. C.H. Beck, München, pp 39–70
Tietje C (2006) Das Ende der parallelen Mitgliedschaft von EU und Mitgliedstaaten in der WTO?. In: Herrmann C, Krenzler HG, Streinz R (eds) Die Außenwirtschaftspolitik der Europäischen Union nach dem Verfassungsvertrag. Nomos, Baden-Baden, pp 161–173
Tietje C (2009) Internationaler Investionsrechtsschutz. In: Ehlers D, Schoch F (eds) Rechtsschutz im Öffentlichen Recht. de Gruyter, pp 63–100
Tietje C (2015) Investment law and sovereign wealth funds. In: Bungenberg M, Griebel J, Hobe S, Reinisch A (eds) International investment law – a handbook. C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, pp 1802–1816
Timmer LJE (2012) The meaning of ‘Investment’ as a requirement for jurisdiction ratione materiae of the ICSID Centre. J Int Arbitration 29:363–374
Trevino CJ (2014) State-to-state investment treaty arbitration and the interplay with investor-state arbitration under the same treaty. J Int Dispute Settlement 5:199–233
Ulfstein G (2009) The international judiciary. In: Klabbers J, Peters A, Ulfstein G (eds) The constitutionalization of international law. Oxford University Press, New York, pp 126–152
Van Harten G (2010) Perceived bias in investment treaty arbitration. In: Waibel M, Kaushal A, Chung KH, Balchin C (eds) The backlash against investment arbitration: perceptions and reality. Kluwer Law International, Alphen aan den Rijn, pp 433–453
van Houte H, McAsey B (2012) Case comment: Abaclat and Others v Argentine Republic, ICSID, the BIT and mass claims. ICSID Rev 27:231–236
Voeten E (2009) The politics of international judicial appointments. Chic J Int Law 9:387–405
von Bogdandy A, Krenn C (2014) Zur demokratischen Legitimation von Europas Richtern. JuristenZeitung 69:529–537
von Goeler J (2016) Third-party funding in international arbitration and its impact on procedure. Kluwer Law International, Alphen aan den Rijn
Voon T (2017) Consolidating international investment law: the mega-regionals as a pathway towards multilateral rules. World Trade Rev 1–31
Weber O (2007) WTO-Streitbeilegung und EuGH im Vergleich: Zur gerichtsförmigen Konfliktlösung in Handelspräferenzzonen. Nomos, Baden-Baden
Wieduwilt H (2017) Bundesrichter setzen sich Grenzen. FAZ of 2.4.2017
Woods L (2016) Fit for purpose? The EU’s Investment Court System. Kluwer Arbitration Blog of 23.3.2016
Wuschka S (2015) Investitionsschiedsverfahren: Individualrechtsschutz oder “anti-demokratische Kon-zernherrschaft”?. Völkerrechtsblog of 20.4.2015
Yannaca-Small K (2008) Improving the system of investor-state dispute settlement: the OECD governments’ perspective. In: Sauvant KP, Chiswick-Patterson M (eds) Appeals mechanism in international investment disputes. Oxford University Press, Oxford, pp 223–228
Author information
Authors and Affiliations
Rights and permissions
Copyright information
© 2018 Springer Nature Switzerland AG
About this chapter
Cite this chapter
Bungenberg, M., Reinisch, A. (2018). Design and Implementation of a Two-Tiered MIC. In: From Bilateral Arbitral Tribunals and Investment Courts to a Multilateral Investment Court. European Yearbook of International Economic Law(). Springer, Cham. https://doi.org/10.1007/978-3-030-01189-5_4
Download citation
DOI: https://doi.org/10.1007/978-3-030-01189-5_4
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-030-01188-8
Online ISBN: 978-3-030-01189-5
eBook Packages: Law and CriminologyLaw and Criminology (R0)