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Multilateral Investment Court: Overview of the reform proposals and prospects

28-01-2020

The Council of the European Union has authorised the European Commission to represent the EU and its Member States at the intergovernmental talks at the United Nations Commission on International Trade Law (UNCITRAL), with a view to reforming the existing investor-state dispute settlement (ISDS) system. The latter provides a procedural framework for disputes between international investors and hosting states, and relies on arbitration procedures. However, there have been growing concerns among states ...

The Council of the European Union has authorised the European Commission to represent the EU and its Member States at the intergovernmental talks at the United Nations Commission on International Trade Law (UNCITRAL), with a view to reforming the existing investor-state dispute settlement (ISDS) system. The latter provides a procedural framework for disputes between international investors and hosting states, and relies on arbitration procedures. However, there have been growing concerns among states and stakeholders about the system's reliance on arbitrators, given its lack of transparency, issues over the predictability and consistency of their decisions, and the excessive costs involved. UNCITRAL talks aim to address these concerns by reforming the system. The EU and its Member States support the establishment of a multilateral investment court (MIC), composed of a first instance and an appellate tribunal staffed by full-time adjudicators. UNCITRAL talks on ISDS reform started in 2017. In April 2019, the working group finalised the list of concerns regarding the current ISDS system and agreed that it was desirable to work on reforms. The states then tabled reform proposals that provided the framework for the discussions that started in October 2019. The proposals range from introducing binding rules for arbitrators to setting up formal investment courts comprised of first instance and appellate tribunals. All in all, the proposals reflect two distinct approaches. Some states back the creation of tools – such as a code of conduct and/or an advisory body for smaller economies and small and medium-sized enterprises – to complement the current system. Others favour fundamental changes through the creation of a two-court system with appointed members. The latest round of talks took place in January 2020, and another is scheduled for March/April 2020. Although states are eager to reform the ISDS system, the complexity of the issue is likely to require additional sessions before agreement can be reached.

World Bank support for investment in EU and Western Balkan transport

01-10-2018

Over the six decades during which the World Bank has been active in Europe, its engagement has evolved hand in hand with the development of the continent. Initially supporting reconstruction efforts after World War II, it later shifted the focus of its action to development support. In the past, as today, it has provided financing, knowledge and assistance to countries seeking to join the European Union. As a starting point in providing a deeper insight into how the World Bank contributes to the ...

Over the six decades during which the World Bank has been active in Europe, its engagement has evolved hand in hand with the development of the continent. Initially supporting reconstruction efforts after World War II, it later shifted the focus of its action to development support. In the past, as today, it has provided financing, knowledge and assistance to countries seeking to join the European Union. As a starting point in providing a deeper insight into how the World Bank contributes to the development of European countries today, this briefing first looks at the Bank's complex structure, the functioning of its different parts and the types of investment and assistance it offers its clients. Then, leaving aside the many other areas of the Bank's activity, the focus narrows to its support for transport in the EU and its Western Balkan partners. As the World Bank is one of several international institutions that are active in the Western Balkans, the briefing also looks into how the Bank links with the development-support efforts of the European Commission and the financial landscape of the Western Balkans Investment Framework.

Multilateral court for the settlement of investment disputes

24-11-2017

This note seeks to provide an initial analysis of the strengths and weaknesses of the European Commission's Impact Assessment (IA) accompanying the above recommendation, submitted on 13 September 2017 and referred to Parliament’s Committee on International Trade. The recommendation aims to pave the way for the creation of a framework for the resolution of international investment disputes. The IA notes that foreign investors and host countries have settled their investment disputes through the Investor-State ...

This note seeks to provide an initial analysis of the strengths and weaknesses of the European Commission's Impact Assessment (IA) accompanying the above recommendation, submitted on 13 September 2017 and referred to Parliament’s Committee on International Trade. The recommendation aims to pave the way for the creation of a framework for the resolution of international investment disputes. The IA notes that foreign investors and host countries have settled their investment disputes through the Investor-State Dispute Settlement (ISDS, ad hoc arbitration) since the 1950s. In recent years, concerns have been voiced about the ISDS, in particular in the context of the negotiation processes of the Transatlantic Trade and Investment Partnership (TTIP) (EU-USA) and of the Comprehensive Economic and Trade Agreement (CETA) (EU-Canada). Based on the results of the public consultation carried out in 2014, the European Commission presented a plan in May 2015 to reform the investment resolution system. It comprises, as a first step, an institutionalised court system (Investment Court System, ICS) for future EU trade and investment agreements and, as a second step, the establishment of an ‘international investment Court’. According to the IA report, ‘since 2016 the Commission has actively engaged with a large number of partner countries both at a technical and political level to further the reform of the ISDS system and to build a consensus for the initiative of a permanent multilateral investment Court’ (IA, p. 6). In its resolutions of 8 July 2015 on the Transatlantic Trade and Investment Partnership (TTIP) and of 6 April 2011 on the future European international investment policy, Parliament noted the need to reform the investment dispute settlement mechanism. In its resolution of 5 July 2016 on the future strategy for trade and investment, it supported the aim of creating a ‘multilateral solution to investment disputes’.

EU-Philippines relations: Beyond trade and aid?

17-01-2017

Recent controversial statements by new Philippines President, Rodrigo Duterte are threatening to derail progress towards closer partnership between his country and the EU. Nevertheless, practical cooperation between the two sides, which began with European Community development aid 50 years ago, continues essentially unchanged. The EU and its Member States are still among the leading donors of aid to the Philippines, and EU-Philippines trade and investment is substantial. However, economic ties still ...

Recent controversial statements by new Philippines President, Rodrigo Duterte are threatening to derail progress towards closer partnership between his country and the EU. Nevertheless, practical cooperation between the two sides, which began with European Community development aid 50 years ago, continues essentially unchanged. The EU and its Member States are still among the leading donors of aid to the Philippines, and EU-Philippines trade and investment is substantial. However, economic ties still offer considerable untapped potential. A free trade agreement is currently under negotiation. The two sides have already concluded a partnership and cooperation agreement, now awaiting ratification. Once in force, this will help to strengthen not only economic ties, but also cooperation in the many areas where the EU and the Philippines have shared interests, such as migration, fisheries and maritime labour. Particularly under Duterte's predecessor, the pro-Western Benigno Aquino (2010 2016), EU-Philippines relations were based not only on shared interests but also values. The Philippines is a democracy and, due to its history, one of the most westernised countries in Asia. Shared values have helped to make the country one of the EU's closest allies in the Association of Southeast Asian Nations (ASEAN). While Duterte's anti-EU statements have not ended such cooperation, they have created uncertainty over future developments. The EU has adopted a wait-and-see approach; less cordial relations are likely to result.

Responsibility in Investor-State Arbitration in the EU - Managing Financial Responsibility Linked to Investor-State Dispute Settlement Tribunals Established by EU's International Investment Agreements

03-12-2012

The Lisbon Treaty extends exclusive European Union competence to foreign direct investment (FDI). In this context the issue of dispute settlement will be included in future EU Investment Agreements. For such situations the European Commission has put forward a draft proposal on how financial responsibility could be shared between the EU and/or a Member State (MS). The proposal aims to address possible conflicts that may arise between the EU/Commission and the respective MS when claims are brought ...

The Lisbon Treaty extends exclusive European Union competence to foreign direct investment (FDI). In this context the issue of dispute settlement will be included in future EU Investment Agreements. For such situations the European Commission has put forward a draft proposal on how financial responsibility could be shared between the EU and/or a Member State (MS). The proposal aims to address possible conflicts that may arise between the EU/Commission and the respective MS when claims are brought under investment agreements or chapters concluded between the EU (or the EU and its MSs) and a third state. Moreover, the proposal deals with the representation of the EU or MS in arbitral proceedings. The study provides background under public international law by setting out the responsibility of states and international organisations, and considers the financial reimbursement laws and policies of several federal states. Further analysis is provided on the proposal’s respective provisions on financial distribution, respondent status, settlement and the technical aspects of reimbursement. Particular attention is given to the external competence of the EU in relation to the internal competences of MSs, specifically with regard to standards of treatment. Other issues addressed include executive federalism with respect to allocating financial responsibility and the balance between unity of external representation and MS' interests. The conclusions are largely based on the issue of internal/external competence, acknowledging the importance of the language of future investment agreements and chapters in clarifying some of these technical aspects.

Protectionism in the G20 (2012)

19-11-2012

Since global trade flows fell in 2008-2009, G20 countries have played a key role in preventing the return to protectionism that characterised the Great Depression. Their commitment to holding protectionism at bay has consequently contributed to reduce the impact of global crisis on the world economy, and their importance in avoiding scenarios even worse than the one we are currently experiencing is undeniable. Several G20 countries, however, have repeatedly resorted to measures that can only be described ...

Since global trade flows fell in 2008-2009, G20 countries have played a key role in preventing the return to protectionism that characterised the Great Depression. Their commitment to holding protectionism at bay has consequently contributed to reduce the impact of global crisis on the world economy, and their importance in avoiding scenarios even worse than the one we are currently experiencing is undeniable. Several G20 countries, however, have repeatedly resorted to measures that can only be described as 'trade restrictive'. Although the number of new restrictive measures fell in 2012, their overall accumulation remains a problem, as the rate of removal remains very low. The measures that have been introduced display two principal characteristics. Firstly, they were introduced in the aftermath of the global financial crisis and later mutated into ad-hoc measures aimed at shielding key domestic industries. Secondly, the bulk of these measures were introduced by developing economies — Argentina, Russia, Indonesia and Brazil were among the main offenders. The EU perceives these measures as both difficult to justify and harmful to the Union's external trade.

Trade and Economic Relations with China - 2012

12-06-2012

2012 will be a politically interesting but difficult year for China. The 18th National Congress of the China's Communist Party, due to take place in the autumn, is unlikely to dramatically modify the economic and trade strategy that Beijing has followed so far. However, the Chinese policy-makers will have to make long-lasting decisions this year — including how to deal with the global financial turmoil that has gripped its most important trading partners, the United States and the European Union ...

2012 will be a politically interesting but difficult year for China. The 18th National Congress of the China's Communist Party, due to take place in the autumn, is unlikely to dramatically modify the economic and trade strategy that Beijing has followed so far. However, the Chinese policy-makers will have to make long-lasting decisions this year — including how to deal with the global financial turmoil that has gripped its most important trading partners, the United States and the European Union — in order to ensure that the country remains stable. Chinese trade and economic policy will thus be determined by both internal and external factors. External factors include the problem of sovereign debts in the Euro area. This has already severely impacted Chinese export performance, as demand for Chinese goods has fallen to levels rarely seen in the past two decades. To offset this threat to its industry, China must seriously reconsider the structure of its economy and its status as an exporting country. The country's economic growth strategy will have to be adapted to boost domestic consumption. A sustained internal market will therefore be essential to maintain China's GDP growth at healthy levels and avoid a potentially disruptive slowdown of the national economy. Major issues that will need to be addressed include: - imbalances between the rural areas and the industrial coastal areas, - a real estate market that needs to be kept under close scrutiny, - a potentially fragile banking system and - unsustainably high levels of investment. The EU's trade and economic relations with China are generally good. Negotiations for a bilateral investment treaty are underway, and Beijing has softened certain access barriers to its market. However, the EU is still dissatisfied with China's reluctance to fully implement its World Trade Organisation (WTO) commitments and to proceed with a new trade agreement that would replace the 1985 partnership and cooperation ag

The Financing of the Global Energy Efficiency and Renewable Energies Fund (GEEREF)

15-04-2009

This workshop took place on 16 April 2009 in the Committee on Budgets meeting, based on written contributions presented by experts in EU finances, development and energy from the Centre for European Policy Studies, the Overseas Development Institute and the European Investment Fund. The experts described the potential benefits stemming from the innovative nature of the fund, which may attract financial support from other donors in clean energy and serve as a role-model for further public-private ...

This workshop took place on 16 April 2009 in the Committee on Budgets meeting, based on written contributions presented by experts in EU finances, development and energy from the Centre for European Policy Studies, the Overseas Development Institute and the European Investment Fund. The experts described the potential benefits stemming from the innovative nature of the fund, which may attract financial support from other donors in clean energy and serve as a role-model for further public-private partnerships, but also noted the risks regarding its successful implementation particularly in the current global economic climate.

Външен автор

Arno BEHRENS, Neil BIRD and Gunter FISCHER

The Dynamics of Economic Change in Asia - Implications for Trade and European Union Presence

15-12-1995

This study reviews the main economic parameters defining Asian economic success in 10 high-growth economies, scans their economic implications for trade and market penetration and highlights policy goals for the EU.

This study reviews the main economic parameters defining Asian economic success in 10 high-growth economies, scans their economic implications for trade and market penetration and highlights policy goals for the EU.

Външен автор

Kerstin Bergloef

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