- Trade topics
- Multilateral Investment Court
What would a Multilateral Investment Court do?
The overall objective for creating a Multilateral Investment Court is to set up a permanent body to decide investment disputes. It would build on the EU's groundbreaking approach to its bilateral FTAs and be a major departure from the system of investor-to-state dispute settlement (ISDS) based on ad hoc commercial arbitration.
A Multilateral Investment Court, like the approach in the FTAs, would bring the key features of domestic and international courts to investment adjudication.
The idea is that the Multilateral Investment Court would:
- have a first instance tribunal;
- have an appeal tribunal;
- have tenured, highly qualified judges, obliged to adhere to the strictest ethical standards, and a dedicated secretariat;
- be a permanent body;
- work transparently;
- rule on disputes arising under future and existing investment treaties;
- only apply where an investment treaty already explicitly allows an investor to bring a dispute against a state;
- would not create new possibilities for an investor to bring a dispute against a state;
- prevent disputing parties from choosing which judges rule on their case;
- provide for effective enforcement of its decisions, and;
- be open to all interested countries to join.
For the EU, the Multilateral Investment Court would replace the bilateral investment court systems included in EU trade and investment agreements.
Both the EU-Canada Comprehensive Economic Trade Agreement (CETA) and the EU-Vietnam Free Trade Agreement foresee setting up a permanent multilateral mechanism and contain a reference to it.
The EU now includes similar provisions in all of its negotiations involving investment.
Why do we need a Multilateral Investment Court?
The EU is the world’s largest exporter and importer of foreign direct investment. Investment, both inward and outward, brings jobs and economic growth. That’s why encouraging and retaining investments is vital for ensuring economic growth and jobs in the EU.
International investment rules and international investment dispute settlement have a role to play in encouraging and retaining investment. So it’s in the EU’s interest to ensure that the resolution of investment disputes operates effectively on an international level.
The EU is pursuing a modern and reformed approach to investment dispute resolution. However, most of the over 3,200 existing investment agreements – including the over 1,400 agreements concluded by EU Member States – don’t contain the innovations and improvements the EU has developed in its recent investment negotiations. The Multilateral Investment Court would have the potential to replace the dispute settlement provisions included in those older agreements.
Where are we at EU level?
The Commission's objectives for the Multilateral Investment Court are based on the approach developed in the EU's bilateral free trade agreements and agreed by the other EU Institutions and all EU Member States.
In the European Commission’s 2014 public consultation on investment protection, some stakeholders already proposed reforming investment dispute resolution multilaterally as a more effective way to reform the ISDS system than bilateral reforms.
In its Concept Paper of 5 May 2015 on ‘Investment in TTIP – the path beyond’, the Commission also indicated that work should start on setting up a multilateral system for resolving international investment disputes. This work would be carried out in parallel to the reform process undertaken in bilateral EU negotiations.
The European Parliament, too, has supported the proposal to work towards a multilateral solution (such as in its resolution of 8 July 2015 containing the European Parliament’s recommendations to the European Commission on the negotiations for TTIP).
The Commission’s Trade for All communication of 2015 also sets the objective of engaging with partners to build consensus for a fully-fledged, permanent Multilateral Investment Court so as to develop a coherent, unified and effective policy on investment dispute resolution.
On 1 August 2016, the EU launched an impact assessment process on options for multilateral reform of the investment dispute settlement system, including the possible establishment of a multilateral investment court.
News and developments
Many countries are currently engaged in internal reflections on their policies on investment protection and investment dispute settlement. The Commission is engaging with them on an exploratory basis.
- Please write to us at the following address: TRADE-F2-MULTILAT-INVEST-DSec [dot] europa [dot] eu (TRADE-F2-MULTILAT-INVEST-DS[at]ec[dot]europa[dot]eu)