I have rarely seen, in my long life, a change as unjustified as the one represented by the new investment tribunal structure now found in the agreed text of the Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union.
First of all, it 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[1] 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. If this were the case, how can they explain that, according to the latest statistics from the International Centre for Settlement of Investment Disputes (ICSID), only 46 percent of all ICSID awards upheld (in part or in full) investors’ claims, while 53 percent of the claims were dismissed for lack of jurisdiction or on the merits, and another one percent were rejected as manifestly without legal merit.[2] Similarly, in its 2014 World Investment Report, the United Nations Conference on Trade and Development (UNCTAD) came to the conclusion that, out of 274 concluded investment treaty cases in 2013, 43 percent were decided in favour of the state, 31 percent in favour of the investor and 26 percent were settled.[3]
It is therefore surprising to see as eminent a person as European Trade Commissioner Cecilia Malmström declare recently that “the old, traditional form of dispute resolution suffers from a fundamental lack of trust.”[4] One would at least have expected that she would have produced substantial evidence in support of such a conclusion.
Second, the proposed system represents a radical departure from two basic premises of arbitration: that the parties to the arbitration have the right to determine who the arbitrators will be; and that an external resource will make an appointment only if one party does not appoint an arbitrator of its choice or if the parties cannot agree on the selection of the president of the tribunal. Under the new CETA regime, only the signatory states will have the right to select a panel of arbitrators or of an appeal tribunal, from which the president of those panels will make the selection in specific cases. If one were to follow the logic of those who argue that the present system is biased in favour of the investor, should we not conclude that the proposed system will be biased in favour of the states?
Third, the restrictions imposed on the activities of the panel members may be fine for academics, retired judges, former politicians or public officials, but they are likely to result in a number of eminent candidates being eliminated from consideration (counsels) or declining appointments (renowned academics acting frequently as experts).
Fourth, it is far from clear that the new system will be more efficient in terms of duration and cost than the present regime, in spite of tighter timetables that will most likely not be respected, bearing in mind the broader bases for appeal and the encouragement of amicus curiae briefs. As to costs, in addition to the impact of these latter factors upon costs for the parties to an investment dispute, there will also be the cost of the as-yet-undetermined annual retainer fees of the panelists.
Fifth, it would seem that an objective of the new system would be to ensure a more standard interpretation of investment treaty provisions. In my view, this is far from certain. To begin with, we are not today in a situation where arbitral tribunals go into free flights and introduce significant variations in their respective interpretation of treaties. The differences in conclusions are essentially related to the facts of individual cases. Moreover, even under the new system, there is no assurance that there could not be equal variations in the legal interpretation of treaty provisions between different panels of the first instance tribunal or of the appeal tribunal. This is all the more true given that there is no stare decisis rule in international law. The risk is even greater if the new system is expanded to a number of treaties. It is naive, in my view, to believe that countries from different parts of the world entering into new investment treaties will agree to the appointment of the same panel members as those already appointed by other states under previous treaties. It will be interesting, for instance, to see if Vietnam (which has just concluded with the European Union an investment treaty containing a tribunal system similar to that of CETA) will be satisfied with the selection previously made by Canada and the European Union; the same argument would apply to the reaction of Canada if the panels were first determined by Vietnam and the European Union.
Canada, for understandable reasons, is keen to see CETA implemented before the proposed Transatlantic Trade and Investment Partnership Agreement between the European Union and the United States. Faced with the internal political pressure upon the European Union for the establishment of a new arbitral structure, Canada concluded that trade trumped investment.
It is to be hoped that the United States will not follow the same path and that, instead, as it did in the case of the Trans-Pacific Partnership Agreement, it will delay indefinitely the adoption of a new investment court system and let time demonstrate whether CETA’s proposed system is really superior to the present one. On this one, as they say in the United States, “I am from Missouri.”
[1] See e.g. Pia Eberhardt and Cecilia Olivet, with contributions from Tyler Amos and Nick Buxton “Profiting from Injustice: How law firms, arbitrators and financiers are fuelling an investment arbitration boom” (2012), Corporate Europe Observatory, online: CEO <http://corporateeurope.org/sites/default/files/publications/profiting-from-injustice.pdf>. See also UNCTAD, World Investment Report 2012: Towards a New Generation of Investment Policies. This campaign is not limited to Europe. See Gus Van Harten et al, “Public Statement on the International Investment Regime,” Osgoode School of Law (31 August 2010), online: <www.osgoode.yorku.ca/public-statement/documents/Public_ Statement_ (final)_ (Dec_ 2013).pdf>.
[2] See European Federation for Investment Law and Arbitration, A response to the criticism against ISDS, 17 May 2015, online: EFILA <http://efila.org/wp-content/uploads/2015/05/EFILA_in_response_to_the-criticism_of_ISDS_final_draft.pdf> and the Hon. Charles Brower and Sadie Blanchard, “What’s in a Meme? The Truth about Investor-State Arbitration: Why It Need Not, and Must Not, Be Repossessed by States” (2013-2014) 52 Colum J Transnat’l L 689.
[3] UNCTAD, World Investment Report 2014: Investing in the SDGs: An Action Plan, online: UNCTAD <http://unctad.org/en/PublicationsLibrary/wir2014_en.pdf>.
[4] European Commission, Directorate-General for Trade, Press Release (16 September 2015), online: EC <http://trade.ec.europa.eu/doclib/press/index.cfm?id=1364>.
