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Assessing the Rules of Appointing Arbitrators under the EU’s Investment Court System

Published online by Cambridge University Press:  22 March 2019

Chi-Chung Kao
Chi-Chung Kao*
Affiliation:
Department of Ocean and Border Governance, National Quemoy University, 1 University Road, Jinning Township, Kinmen County 892, Taiwan, Republic of China. Email: [email protected]
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Abstract

In recent years investor–state arbitration has faced a number of criticisms, such as the pro-investor allegation, the lack of transparency and the regulatory chilling effect. In 2015, the EU proposed an Investment Court System (ICS) in the investment chapter of the Transatlantic Trade and Investment Partnership negotiated between the EU and the US. This new mechanism is designed to improve the investor–state dispute settlement mechanisms, in particular the investor–state arbitration. A unique feature of the ICS is that it deprives the right of the disputing parties to appoint arbitrators. This is an apparent departure from the common practice of conventional investor–state arbitration, such as that conducted under the rules of the International Centre for Settlement of Investment Disputes. This new approach seems to formulate itself on the pro-investor hypothesis that asserts that the appointment of an arbitrator by an investor will lead to the appointee’s bias in favour of the investor. This paper assesses whether such methodology is justifiable and necessary by discussing the pro-investor allegation and rebutting it with empirical evidence. This paper considers the challenge procedure as the more appropriate and practical safeguard against an arbitrator’s bias.

Type
Articles
Information
European Review , Volume 27 , Issue 2 , May 2019 , pp. 210 - 219
Copyright
© Academia Europaea 2019 

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References

References and Notes

1. European Commission (2015) Press release, Commission proposes new Investment Court System for TTIP and other EU trade and investment negotiations, http://europa.eu/rapid/press-release_IP-15-5651_en.htm (accessed 30 May 2016). The EU’s negotiating text of the TTIP, referred hereinafter, is as of November 2015, http://trade.ec.europa.eu/doclib/docs/2015/november/tradoc_153955.pdf (accessed 10 July 2016).Google Scholar
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