EU Commission publishes recommendation for Council Decision on establishing multilateral court for investment dispute settlement

20/09/2017 | Clifford Chance

The EU Commission has published a Recommendation for a Council Decisionauthorising the opening of negotiations for a Convention establishing a multilateral court for the settlement of investment disputes.

The multilateral investment court initiative aims to establish a permanent, independent and legitimate framework for the resolution of international investment disputes, which delivers consistent case-law and allows for appeals of decisions and third party interventions (such as interested environmental or labour organisations). It is intended to address the current problems stemming from the usage of Investor-State Dispute Settlement (ISDS) and the Investment Court System (ICS) in EU trade and investment agreements, such as the lack of consistency and transparency of ISDS and administrative complexity and budgetary impact of the ICS.

The proposed initiative will only deal with procedural issues. Matters such as the applicable law or standards of interpretation, including ensuring consistency with other international obligations, will be addressed in the underlying investment agreements to be applied by the multilateral investment court.

The Annex to the Commission's proposed Council Decision sets out the negotiating directives on issues such as:

  • when disputes can be submitted;
  • guaranteeing the independence and transparency of the court;
  • the mechanism for appealing decisions; and
  • ensuring the court's decisions benefit from an effective international enforcement regime.

The recommendation will be sent to the Council for endorsement.