By Joost Pauwelyn*
On November 12, 2015, the EU released its final proposal for an Investment Court System (ICS) to
be set up under the Transatlantic Trade and Investment Partnership (TTIP),
currently under negotiation between the EU and the US.
 |
| Michael Froman, United States Trade Representative |
As compared to the
investment chapter in the recently concluded Trans-Pacific Partnership (TPP),
to which the US and another 11 countries, but not the EU, are a party, the ICS
includes two major innovations: (i) a standing tribunal with fifteen “publicly
appointed judges” rather than ad hoc, party-appointed arbitrators, (ii) an
appellate mechanism.
In reactions to an
earlier version of the EU’s ICS proposal, US Trade Representative Michael Froman
was reported
as
“wary
of the EU proposal”, for two reasons: first, recent investment deals such as
TPP already include sufficient safeguards allowing countries the “right to
regulate”; second, why should companies get “a second bite of the apple” before
an appellate tribunal?
