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CIGI Commentaries

Brexit from an International Legal Perspective

July 21, 2016
The now-infamous Brexit referendum did not specify what degree of separation would be required of the United Kingdom. Markus Gehring looks at the pros and cons of various options for a legally valid "exit" from the European Union.

How Would a New Labor Government in Australia (Re)Negotiate Trade and Investment Agreements?

June 22, 2016
Luke Nottage and Leon Trakman
Australia is at an important juncture in negotiating its bilateral and regional trade and investment agreements. If the country's July 2 election leads to a shift from Liberal to Labor, what will be the impact on Australia's receptiveness to negotiating current and future trade agreements?

CETA's New Take on ISDS: Toward an International Investment Court

June 22, 2016
Investor-State Arbitration Commentary Series No. 8
August Reinisch and Lukas Stifter
The European Commission is taking a new direction with regard to investor-state dispute settlement, with the proposed inclusion of a novel settlement mechanism in the Transatlantic Trade and Investment Partnership, the EU-Vietnam Free Trade Agreement and, most recently, in the Comprehensive Economic and Trade Agreement (CETA) between the European Union and Canada. With all the changes this new mechanism implies, will critics on either side of the Atlantic be satisfied?

Why CETA Is Unlikely to Restore Legitimacy to ISDS

May 27, 2016
Investor-State Arbitration Commentary Series No. 7
Those promoting investor-state dispute settlement (ISDS) are running into a pretty serious public relations problem. Changes to the Comprehensive Economic and Trade Agreement (CETA) may go some distance to solving conflict-of-interest problems for arbitrators, but are unlikely to remedy the principal defects of ISDS. That is because CETA’s investment chapter continues to look like almost every other investment treaty, setting exceedingly high standards for the protection of foreign investors, while a clause reaffirming governments' “right to regulate” is unlikely to generate any meaningful constraint on the elite corps of investment lawyers and tribunals who administer this regime of investor rights.

Brexit and CETA: Hello EU, à Bientôt UK?

May 20, 2016
Matthew Kronby
The consequences of the United Kingdom’s June 23 referendum on whether to remain in or leave the European Union will be profound for Britain and the EU itself, but the result will be felt far beyond Europe. When Canada committed to deepening its economic relationship with the EU by negotiating the Canada-EU Comprehensive Economic and Trade Agreement (CETA), it did so on the understanding that the United Kingdom would be part of the deal. With CETA heading toward ratification, what will a “Brexit” mean for the Canada-EU and Canada-UK trade relationship?

ISDS in the Revised CETA: Positive Steps, But Is It a “Gold Standard”?

May 20, 2016
Investor-State Arbitration Commentary Series No. 6
Gus Van Harten
Canada and the European Union released a revised Comprehensive Economic and Trade Agreement (CETA) in February 2016, with revisions focused on the controversial process of investor-state dispute settlement. European and Canadian officials now describe CETA as the “gold standard.” This commentary puts that standard to the test, looking at CETA's revised ISDS provisions through the lenses of independence, fairness, balance and respect.

Half Court, Half Tribunal: Why the Proposed CETA Tribunal Should Be Transformed into a Permanent Court

May 12, 2016
Investor-State Arbitration Commentary Series No. 5
Markus Krajewski
In its 2015 trade policy, “Trade for All: Towards a more responsible trade and investment policy,” the European Commission promised that “EU bilateral agreements will begin the transformation of the old investor-state dispute settlement into a public Investment Court System composed of a Tribunal of first instance and an Appeal Tribunal operating like traditional courts.” But will the proposed investment court system for the Comprehensive Economic and Trade Agreement in fact operate “like traditional courts”?

CETA Under New Management: Why Is Trudeau Changing the Game?

May 12, 2016
Investor-State Arbitration Commentary Series No. 4
Stephen L. Drymer
Negotiation of the Comprehensive Economic and Trade Agreement (CETA) was supposed to have concluded long ago. “It will not only change the game for Canadian businesses,” then Prime Minister Stephen Harper said, when the draft text of the treaty was unveiled in September 2014, “it will create an entirely new game.” Well, the game has certainly changed — but not in ways imagined at the time. This commentary looks at possible repercussions of recent changes to the agreed CETA text.

CETA’s New System for the Resolution of Investment Disputes: What a Difference a Few Months Make

May 6, 2016
Investor-State Arbitration Commentary Series No. 3
The speed and late stage at which the changes were made to the Comprehensive Economic and Trade Agreement did not offer much time for in-depth analysis. The lack of agreement on the precise design and functioning of the appellate tribunal, and the absence of a code of conduct for tribunal members, serve as evidence of this fact. Five improvements are identified here.

The New Investment Tribunal under Chapter 8 of CETA

May 6, 2016
Investor-State Arbitration Commentary Series No. 2
The Honourable Marc Lalonde, O.C., P.C., and Q.C.
The new investment tribunal structure now found in the Comprehensive Economic and Trade Agreement is a poor solution, based on a faulty premise. It is the result of an ill-informed but obviously effective campaign by mainly European lobbies and some groups in the European Parliament, which have argued, without proper quantitative or qualitative support, that the present system is biased in favour of foreign investors.
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