On Tuesday 20 March, the Council of Ministers of the EU authorised the Commission to negotiate a convention with other third countries to establish a multilateral court for the settlement of investment disputes. The member states also decided to make the negotiating directives public.
On the basis of an initiative it has been involved in since 2016 with the Canadian government (see EUROPE 11687), the Commission has adopted a recommendation to the Council for opening negotiations to create the Multilateral Investment Court (MIC) under the auspices of the United Nations Commission on International Trade Law (UNCITRAL) and on the basis of the new investment/states dispute arbitration model - Investment Court System (ICS) - in the EU/Canada, EU/Vietnam free trade agreements, which the Commission wants to include in all future EU free trade agreements that include a chapter on investment (see EUROPE 11962).
The overall Euro-Canadian objective is to create a a single permanent body to settle investment disputes and move away from the ad hoc system for settling disputes between investors and states, the ISDS, which is currently included in 3,200 bilateral investment treaties throughout the world including 1,400 affecting EU member states.
Although the characteristics of the MIC (composition of the court, its budget, possibility of obtaining secretariat support etc.) depend on the outcome of the future negotiations between the countries that sign up to the new system, the EU will favour a system based on a range of principles: the court should be a permanent international institution; the judges should be tenured, qualified and receive permanent remuneration. Their impartiality and independence should be guaranteed; proceedings before the court should be conducted in a transparent manner; the court should give the possibility of appeal against a decision; effective enforcement of the decisions of the court would be vital; the court should rule on disputes arising under future and existing investment treaties that countries decide to assign to the authority of the court. (Original version in French by Emmanuel Hagry)