EU and Canada Agree on New Investor State Dispute Settlement System in Trade Deal (February 29, 2016) [1]
On February 29, 2016, the European Union and Canada agreed on a new approach to investment protection in the revised version of the Canada-EU Comprehensive Economic and Trade Agreement (CETA) [3]. According to the press release [4], “[t]his represents a clear break from the old Investor to State Dispute Settlement (ISDS) approach and demonstrates the shared determination of the EU and Canada to replace the current ISDS system with a new dispute settlement mechanism and move towards establishing a permanent multilateral investment court.” The new agreement expressly reserves the right to regulate for public policy purposes and clarifies that investment protection does not amount to a guarantee that legal frameworks will remain unchanged. The revised version will further establish a “permanent Tribunal of fifteen Members which will be competent to hear claims for violation of the investment protection standards” and establishes an Appellate Tribunal, which will have the power to modify, reverse, or annul the first instance Tribunal’s awards. The revised agreement also memorializes the parties’ intention to establish a permanent multinational investment court, which will replace the bilateral mechanism established under CETA. The text further clarifies that the Tribunal will only apply CETA itself, and has no authority to adjudicate matters of EU or member states’ domestic law. According to a news report [5], the new agreement also refers to the Tribunal members’ ethical obligations, thus addressing common criticisms “that anyone could be an arbitrator, and that anyone could be both an arbitrator in one case and a party representative in another” (Emphasis in the original).