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The Future of International Claims Commissions: Conceptualizing the EU's Proposed Multilateral Investment Court as an International Claims Tribunal

Published online by Cambridge University Press:  28 March 2018

Jeremy K. Sharpe
Jeremy K. Sharpe*
Affiliation:
Partner, Shearman & Sterling LLP, London; previously Chief of Investment Arbitration, U.S. Department of State, Office of the Legal Adviser.
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Extract

I want to consider the European Commission's proposed multilateral investment court as an international claims tribunal. The commission is not promoting its investment court as a claims tribunal, but that is essentially what it is. The commission seeks to establish a mechanism to allow foreign investors to submit future disputes under international law to binding dispute resolution before a standing tribunal. The proposed court differs from most claims tribunals, as it is intended to be multilateral and to apply to future disputes. But that is what makes the proposal so interesting and potentially useful.

Type
Are International Claims Commissions Effective Dispute Resolution Mechanisms?
Information
Proceedings of the ASIL Annual Meeting , Volume 111 , 2017 , pp. 102 - 105
Copyright
Copyright © by The American Society of International Law 2018 

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References

1 Cecilia Malmström, Proposing an Investment Court System, at https://ec.europa.eu/commission/commissioners/2014-2019/malmstrom/blog/proposing-investment-court-system_en.

2 See Pauwelyn, Joost, At the Edge of Chaos? Foreign Investment Law as a Complex Adaptive System, How It Emerged and How It Can Be Reformed, 29 ICSID Rev.-For. Inv. L.J. 372 (2014)Google Scholar (tracing development).

3 European Commission, Commission Proposes New Investment Court System for TTIP and Other EU Trade and Investment Negotiations (Sept. 16, 2015), available at http://trade.ec.europa.eu/doclib/press/index.cfm?id=1364.

4 See, e.g., Abaclat et al. v. Argentine Republic, ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility, para. 1 (Aug. 4, 2011) (noting that the total number of claimants at the initiation of the arbitration “exceeded 180,000”). See also Dissenting Opinion of Georges Abi-Saab in id., para. 2b (The “ad hoc ICSID International Arbitral Tribunal has no jurisdiction under the ICSID Convention and the BIT over the present collective mass claims action, absent Argentina's consent, nor does it have the power to elaborate new procedures to handle such an action.”).

5 See Accession Mezzanine Capital L.P. et al. v. Republic of Hungary, ICSID Case No. ARB 12/3, Decision on Respondent's Objection Under Article 41(5), para. 9 (Jan. 16, 2013) (reporting the Centre's notice regarding the “absence of consent by all disputing parties to join disputes relating to manifestly separate investments,” and the disputing parties’ submission of two separate requests).

6 See U.S. Department of State, Office of the Legal Adviser, Office of International Claims and Investment Disputes, at https:// www.state.gov/s/l/c3433.htm (Stanford Ponzi scheme cases).

7 Italy v. Cuba, Ad Hoc Arbitration, Final Award (Jan. 15, 2008), available at www.italaw.com.

8 ICSID Convention, Art. 27(1) (“No Contracting State shall give diplomatic protection, or bring an international claim, in respect of a dispute which one of its nationals and another Contracting State shall have consented to submit or shall have submitted to arbitration under this Convention, unless such other Contracting State shall have failed to abide by and comply with the award rendered in such dispute.”).

9 See, e.g., Potestà, Michele, State-to-State Dispute Settlement Pursuant to Bilateral Investment Treaties: Is There Potential?, in International Courts and the Development of International Law: Essays in Honour of Tullio Treves 753 (Boschiero, Nerina, Scovazzi, Tullio, Pitea, Cesare & Ragni, Chiara eds., 2013)Google Scholar.

10 See U.S. Response dated Dec. 3, 1980, reprinted in Revolutionary Days: The Iran-Hostage Crisis and the Hague Claims Tribunal: A Look Back A-47 (Lowenfeld, Andreas F., Newman, Lawrence W. & Walker, John M. eds., 1999)Google Scholar.

11 See, e.g., Roberts, Anthea, State-to-State Investment Treaty Arbitration: A Hybrid Theory of Interdependent Rights and Shared Interpretive Authority, 55 Harv. J. Int’l L. 1 (2014)Google Scholar.

12 See Gabrielle Kaufmann-Kohler & Michele Potestà, CIDS-Geneva Center for International Dispute Settlement, Can the Mauritius Convention Serve as a Model for the Reform of Investor-State Arbitration in Connection with the Introduction of a Permanent Investment Tribunal or an Appeal Mechanism? Analysis and Roadmap, paras. 263–64, available at http://www.uncitral.org/pdf/english/CIDS_Research_Paper_Mauritius.pdf.