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Transparency and participatory aspects of investor-state dispute settlement in the EU ‘new wave’ trade agreements

Published online by Cambridge University Press:  04 September 2019

Joanna Lam  and
Güneş Ünüvar Open the ORCID record for Güneş Ünüvar [Opens in a new window]
Joanna Lam
Affiliation:
Centre of Excellence for International Courts (iCourts), Faculty of Law, University of Copenhagen, Karen Blixens Plads 16, 2300 Copenhagen, Denmark Kozminski University,Jagiellonska 57, 03-301 Warsaw, Poland Email: [email protected]
Güneş Ünüvar
Affiliation:
University of Copenhagen, Karen Blixens Plads 16, 2300 Copenhagen, Denmark Email: [email protected]
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Abstract

This article scrutinizes the investment chapters in the new EU Free Trade Agreements from a transparency perspective. The article examines the claims that the dispute settlement mechanisms in the new treaties are sufficiently participatory and more transparent than their predecessors. Procedural standards related to confidentiality of proceedings shall be analysed in the context of existing transparency safeguards in investment arbitration. In addition to procedural guarantees of transparency, the article examines relevant substantive rules affecting participatory aspects of dispute settlement. Furthermore, the article discusses forum-shopping strategies of the parties in the field of investment-related disputes, including internal forum-shopping and parallel proceedings using different procedural mechanisms. In this context, lessons from other fields such as international commercial arbitration related to transparency (in cases in which public interest is present) are highlighted. The proposal for the establishment of an integrated, multilateral court for investment cases is also invoked.

Keywords

the European Unionfree trade agreementsinvestment arbitrationpublic interesttransparency
Type
ORIGINAL ARTICLE
Information
Leiden Journal of International Law , Volume 32 , Issue 4 , December 2019 , pp. 781 - 800
Copyright
© Foundation of the Leiden Journal of International Law 2019 

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Footnotes

*

This research is funded by the Danish National Research Foundation Grant no. DNRF105 and Carlsberg Foundation grant no. CF16-0754, and conducted under the auspices of iCourts.

References

1 Comprehensive Economic and Trade Agreement (CETA), available at ec.europa.eu/trade/policy/in-focus/ceta/.

2 EU – Vietnam Free Trade Agreement (EVFTA), available at trade.ec.europa.eu/doclib/press/index.cfm?id=1437.

3 EU – Singapore Trade and Investment Agreements, available at trade.ec.europa.eu/doclib/press/index.cfm?id=961. These agreements were previously consolidated under the single EU – Singapore Free Trade Agreement (ESFTA). On 16 May 2017, the Court of Justice of the European Union delivered its Opinion on ESFTA and division of competences in trade policy, confirming that the settlement of disputes between foreign investors and states fall outside the EU’s exclusive competence. Following this development and subsequent debates, the European Commission opted for trade and investment agreements.

4 Draft Proposal Text of the Transatlantic Trade and Investment Partnership (Trade in Services, Investment and E-Commerce, Chapter II—Investment), available at trade.ec.europa.eu/doclib/docs/2015/september/tradoc_153807.pdf.

5 EU – Mexico Trade Agreement, available at trade.ec.europa.eu/doclib/press/index.cfm?id=1831.

6 Ibid. According to the European Commission, ‘[t]he agreement fully implements the EU’s new approach to investment protection and investment dispute resolution by replacing the old-style ISDS (Investor-to-State Dispute Settlement) system with the new Investment Court System, ensuring transparency and the right of governments to regulate in the public interest’. However, no publicly available text of the dispute resolution chapter is available as of July 2018.

7 European Commission, ‘Commission welcomes adoption of negotiating directives for a multilateral investment court’, available at trade.ec.europa.eu/doclib/press/index.cfm?id=1819.

8 The issue of secrecy in recent trade negotiations has attracted significant public scrutiny in the last decade, particularly in popular media outlets. See, for instance, S. Schuster, ‘A Major Leak is the Latest Blow to Obama’s Big Trade Deal With Europe’, Time, 2 May 2016, available at time.com/4312763/ttip-trans-atlantic-trade-deal-obama/; E. Bradner, ‘How Secretive is the Trans-Pacific Partnership’, CNN Politics, 12 June 2015, available at edition.cnn.com/2015/06/11/politics/trade-deal-secrecy-tpp/index.html; ‘Groups Call for End to Secrecy in Trans-Pacific Partnership Trade Negotiations’, Friends of the Earth, October 2011, available at foe.org/2011-10-groups-call-for-end-to-secrecy-in-trans-pacific-part/.

9 United Nations Conference on Trade and Development (UNCTAD), Transparency, UNCTAD Series on Issues in International Investment Agreements II (2012), 1.

10 General Agreement on Trade in Services (GATS), 55 UNTS 194, Art. III.

11 United Nations Convention against Corruption (UNCAC), available at www.unodc.org/unodc/en/treaties/CAC/; Azerbaijan – Croatia BIT (2007), Art. 3, available at investmentpolicy.unctad.org/international-investment-agreements/treaty-files/229/download.

12 Z. Davies Boren, ‘TTIP Controversy: Secret Trade Deal Can Only be Read in Secure “Reading Room” in Brussels, Independent, 14 August 2015, available at www.independent.co.uk/news/world/europe/ttip-controversy-secret-trade-deal-can-only-be-read-secure-in-reading-room-in-brussels-10456206.html.

13 Letter to Karel De Gucht, Civil Society Call for Full transparency about the EU-US Trade Negotiations, available at www.foeeurope.org/sites/default/files/foee_ttip-civil-society-transparency-call190514.pdf.

14 European Ombudsman, ‘Ombudsman Asks Council and Commission to Public More TTIP documents’, Press Release no. 17/2014, 31 July 2014, available at www.ombudsman.europa.eu/en/press/release.faces/en/54636/html.bookmark (emphasis added).

15 Supra note 13.

16 For instance, the Commission published a website with factsheets, infographics, and all negotiated texts for the CETA, available at trade.ec.europa.eu/doclib/press/index.cfm?id=1720.

17 Cf., e.g., Noussia, K., Confidentiality in International Commercial Arbitration: A Comparative Analysis of the Position Under English, US, German and French Law (2010), 1 CrossRefGoogle Scholar ff.

18 Ishikawa, T., ‘Third Party Participation in Investment Treaty Arbitration’, (2010) 59 ICLQ 373 CrossRefGoogle Scholar, at 373–4.

19 Pursuant to the Softwood Lumber Agreement (signed 12 September 2006, entered into force 12 October 2006) (SLA 2006) Art. XIV. Cf. also Jemielniak, J., ‘Commercial Stakeholders in International Economic Dispute Resolution and the Issue of Adjudicatory Independence’, (2017) 24 Maastricht Journal of European and Comparative Law 582 CrossRefGoogle Scholar.

20 Here, we use the term forum shopping as defined by L. R. Helfer: it is not limited to ‘an individual petitioner’s strategic choice to litigate her claims in one of several available adjudicatory fora’, but also ‘other consequential choices engendered by the concurrent, overlapping jurisdiction of … treaties and tribunals, including attempts by petitioners to litigate identical or related claims in multiple fora at the same time, and attempts to engage in sequential litigation of claims’. Helfer, L. R., ‘Forum Shopping for Human Rights’, (1999) 148 University of Pennsylvania Law Review 285 CrossRefGoogle Scholar.

21 J. Jemielniak, L. Nielsen and H. Olsen, ‘Introduction’, in J. Jemielniak, L. Nielsen and H. Olsen (eds.), Establishing Judicial Authority in International Economic Law (2016), at 6.

22 For instance, Esso Australia Resources Ltd v. Plowman [1996] XXI Y.B.Comm. Arb. 137 (Australian High Court 1995).

23 OECD, ‘Transparency and Third Party Participation in Investor-State Dispute Settlement Procedures’, OECD Working Papers on International Investment 2005/1 (2005), at 2.

24 See generally C. Titi, The Right to Regulate in International Investment Law (2014).

25 Vattenfall AB and others v. Germany (Vattenfall II), ICSID Case No. ARB/12/12, available at www.italaw.com/cases/1654.

26 Philip Morris Asia Limited v. Australia, UNCITRAL, PCA Case No. 2012-12, available at www.italaw.com/cases/851; Philip Morris Brands Sarl et al. v. Uruguay, ICSID Case No. ARB/10/7, available at www.italaw.com/cases/460.

27 Supra note 7.

28 Despite being an object of controversy, relevant requirements are forwarded in the new-wave EU agreements.

29 European Commission Press Release, ‘Commission Proposes New Investment Court System for TTIP and other EU Trade and Investment Negotiations’, IP/15/5651, 16 September 2015, available at europa.eu/rapid/press-release_IP-15-5651_en.htm.

30 Supra note 4.

31 European Commission, ‘From Arbitration to the Investment Court System (ICS): The Evolution of CETA Rules’ (2017), 15, available at www.europarl.europa.eu/RegData/etudes/IDAN/2017/607251/EPRS_IDA(2017)607251_EN.pdf.

32 European Commission, ‘Trade, Countries and Regions: Vietnam’, available at ec.europa.eu/trade/policy/countries-and-regions/countries/vietnam/.

33 European Commission, ‘Comprehensive Economic and Trade Agreement (CETA)’, available at ec.europa.eu/trade/policy/in-focus/ceta/.

34 C. Lévesque, ‘The European Union Commission Proposal for the Creation of an “Investment Court System”: The Q and A that the Commission Won’t Be Issuing’, Kluwer Arbitration Blog, 6 April 2016, available at kluwerarbitrationblog.com/2016/04/06/the-european-union-commission-proposal-for-the-creation-of-an-investment-court-system-the-q-and-a-that-the-commission-wont-be-issuing/.

35 Ibid.

36 See, for instance, J. Karl, ‘An appellate body for international investment disputes: How appealing is it?’, 11 May 2015, Columbia Center on Sustainable Investment, available at ccsi.columbia.edu/files/2013/10/No-147-Karl-FINAL.pdf; C. Schreuer, ‘Revising the System of Review for Investment Awards’, 2009, available at www.univie.ac.at/intlaw/wordpress/pdf/99_rev_invest_awards.pdf.

37 Fan Kun’s intervention at the Panel ‘Distribution of Power, Diversity and Imbalances in International Arbitration’, at the School of International Arbitration 30th Anniversary Conference: ‘The Evolution and Future of International Arbitration: The Next 30 Years’, London, 19–21 April 2015; see also B. Stern, ‘The Future of International Investment Law: A Balance Between the Protection of Investors and the States’ Capacity to Regulate’, in J. E. Alvarez and K. P. Sauvant (eds.), The Evolving International Investment Regime – Expectations, Realities, Options (2011), 174, at 186.

38 For a collection of the work so far conducted by the Working Group III, see UNCITRAL, ‘Working Group III 2017 to present: Investor-State Dispute Settlement Reform’, available at www.uncitral.org/uncitral/en/commission/working_groups/3Investor_State.html.

39 J. Jemielniak, ‘Pressure for Transparency and the Use of Arbitration Mechanisms in International Economic Dispute Resolution’, in G. Z. Capaldo (ed.), Global Community: Yearbook of International Law and Jurisprudence 2015 (2016), at 251.

40 König, V., ‘Präzedenzwirkung Internationaler Schiedssprüche: Dogmatisch-Empirische Analysen zur Handels-und Investitionsschiedsgerichtsbarkeit’, Schriften zum Europäischen und Internationalen Privat-, Bank- und Wirtschaftsrecht 48 (2014)Google Scholar.

41 The UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration (entered into force 1 April 2014).

42 G. Kaufmann-Kohler and M. Potestà, ‘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’, 2016, Geneva Center for International Dispute Settlement, available at www.uncitral.org/pdf/english/commissionsessions/unc/unc-49/CIDS_Research_Paper_-_Can_the_Mauritius_Convention_serve_as_a_model.pdf.

43 European Commission, ‘The European Commission Tables Proposals to Improve Transparency in Investor-to-State Dispute Settlement (ISDS) based on Existing Investment Treaties’, 29 January 2015, available at trade.ec.europa.eu/doclib/press/index.cfm?id=1246.

44 J. Jemielniak and L. Nielsen, ‘“Global Citizens” in International Commercial Arbitration and WTO Dispute Resolution’, in J. Jemielniak et al. (eds.), Establishing Judicial Authority in International Economic Law (2016), 263.

45 Brower, C. N. and Blanchard, S., ‘What’s in a Meme? The Truth about Investor-State Arbitration: Why It Need Not, and Must Not, Be Repossessed by States’, (2014) 52 Columbia Journal of Transnational Law 689 Google Scholar.

46 ‘Dispute Resolution in M&A/JV Transactions’, Roundtable: Challenges and Future of Investment Arbitration, Warsaw, 28–29 May 2015.

47 Ibid.

48 Cf. Brower, C. N. and Schill, S. W., ‘Is Arbitration a Threat or a Boom to the Legitimacy of International Investment Law?’, (2009) 9 Chicago Journal of International Law 471 Google Scholar, at 498.

49 Ibid.

50 See, for instance, S. Lester, ‘Do We Need a TPP Secretariat?’, International Economic Law and Policy Blog, 12 November 2014, available at worldtradelaw.typepad.com/ielpblog/2014/11/do-we-need-a-tpp-secretariat.html. See also the discussions at the May 2014 Post-Bali WTO Conference (following the 9th WTO Bali Ministerial Conference on 7 December 2013) in light of the regional and sectoral trade negotiations which took place at the Ministry of Foreign Affairs, Denmark, with G. Tereposky, S. Lester, L. Bartels and L. Nielsen as speakers.

51 Upon this background, it is striking to note that the EU has incorporated a provision in its new-wave FTAs that expresses the parties’ intent to establish a multilateral investment court in the future. The intention to create such a body has also been reiterated, e.g., by the President of the European Commission Jean-Claude Juncker in his 2017 ‘State of the Union’ address. Furthermore, on 20 March 2018, the European Council authorized the Commission to negotiate a multilateral investment court convention on behalf of the EU.

52 See, for instance, the UNCITRAL Arbitration Rules; and the ICSID Rules of Procedure for Arbitration Proceedings (the ICSID Rules) in connection with Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention).

53 Cf. Brown, A. C. ‘Presumption Meets Reality: An Exploration of the Confidentiality Obligation in International Commercial Arbitration’, (2001) 16 American University International Law Review 969 Google Scholar, at 1025.

54 Cf. P. Neill QC, ‘Confidentiality in Arbitration’, (1996) 12 Arb. Int’l 287; Knahr, C. and Reinisch, A., ‘Transparency versus Confidentiality in International Investment Arbitration - The Biwater Gauff Compromise’, (2007) 6 Law & Practice of International Courts & Tribunals 97 Google Scholar, at 118.

55 J. F. Poudret and S. Besson, Comparative Law of International Arbitration (2007), 316.

56 ICSID Arbitration Rules, Rule 6(2).

57 Ibid., Rule 15.

58 F. P. Feliciano, ‘“Ordre Public” Dimensions of Confidentiality and Transparency in International Arbitration: Examining Confidentiality in the Light of Governance Requirements in International Investment and Trade Arbitration’, in J. Nakagawa (ed.), Transparency in International Trade and Investment Dispute Settlement (2013), 15, at 29.

59 Cf. Esso Australia Resources Ltd v. Plowman, Australian High Court, XXI Y. B. Comm. Arb. 137 [1996].

60 De Brabandere, E., ‘NGOs and the “Public Interest”: The Legality and Rationale of Amicus Curiae Interventions in International Economic and Investment Disputes’, (2011) 12 Chicago Journal of International Law 85 Google Scholar, at 86.

61 Methanex v. United States of America, Ad Hoc, Decision of the Tribunal on Petitions from Third Persons to Intervene as ‘Amici Curiae’ (15 January 2001), para. 30.

62 Suez, Sociedad General de Aguas de Barcelona SA and Vivendi Universal SA v. Argentine Republic, ICSID Case No ARB/03/19, Order in Response to a Petition for Participation as Amicus Curiae (19 May 2005).

63 Biwater Gauff (Tanzania) Ltd. v. United Republic of Tanzania, ICSID Case No ARB/05/22, Procedural Order No. 3 (29 September 2006), accessed 24 January 2017.

64 Cf. Jemielniak, supranote 39, at 266.

65 Cf. also M. Dimsey, ‘Article 4. Submission by a Third Person’, in D. Euler et al. (eds.), Transparency in International Investment Arbitration: A Guide to the UNCITRAL Rules on Transparency in Treaty-Based Investor-State Arbitration (2015), 128, at 149–50.

66 2004 Canada FIPA, Art. 38; 2004 US Model BIT, Art. 29; 2008; Rwanda – US BIT identically incorporates the language of the Model BIT.

67 2012 US Model BIT, Art. 29.

68 Supra note 66; Ibid.

69 US Model BITs, Art. 29(2).

70 2004 Canada FIPA, Art. 38.

71 ICSID Rules, Rule 32 (the Oral Procedure), Rule 37 (Visits and Inquiries; Submissions of Non-Disputing Parties).

72 M. Gehring and D. Euler, ‘Public Interest in Investment Arbitration’, in D. Euler et al. (eds.), Transparency in International Investment Arbitration: A Guide to the UNCITRAL Rules on Transparency in Treaty-Based Investor-State Arbitration (2015), 7, at 27.

73 S. Schill, ‘The Mauritius Convention on Transparency: A Model for Investment Law Reform?’, EJIL: Talk!, 8 April 2015, available at www.ejiltalk.org/the-mauritius-convention-on-transparency-a-model-for-investment-law-reform/.

74 As of July 2018. Up-to-date status available at www.uncitral.org/uncitral/en/uncitral_texts/arbitration/2014Transparency_Convention_status.html.

75 Ibid.

76 ICSID, ‘Proposals for Amendment of the ICSID Rules – A Working Paper’, (Three Volumes, 3 August 2018), available at icsid.worldbank.org/en/Documents/Amendments_Vol_3_Schedule%208.pdf (‘Working Paper’).

77 Ibid., paras. 83, 84. In these paragraphs the ICSID Secretariat refers to some public comments received during the preparation of its Working Paper. One such comment suggested ‘giving the Tribunal discretion to allow NDP and NDSP submission without first consulting the disputing parties on whether the criteria for participation in the Rules are met … This would allow the Tribunal to decide whether to permit NDP participation solely on the application filed by the NDP … This suggestion would reduce the time and cost of non-disputing party submissions by allowing disputing parties to comment after (and only if) NDP participation is allowed by the Tribunal. However … the WP does not propose to make this change. It is likely that most disputing parties will want to retain the right to make observations on whether a potential NDP meetings the criteria for public interest participation …’ (emphasis added).

78 European Commission Communication, ‘Towards a comprehensive European international investment policy’, 7 July 2010, available at www.eesc.europa.eu/en/our-work/opinions-information-reports/opinions/towards-comprehensive-european-international-investment-policy.

79 Ibid., at 10.

80 CETA, supra note 1, Art. 8.36(1).

81 Ibid., Art. 8.36(2): ‘Pursuant to UNCITRAL Transparency Rules art 3(1), the following documents must be made public: the notice of arbitration, the response to the notice of arbitration, the statement of claim, the statement of defence and any further written statements or written submissions by any disputing party; a table listing all exhibits to the aforesaid documents and to expert reports and witness statements, if such table has been prepared for the proceedings, but not the exhibits themselves; any written submissions by the non-disputing Party (or Parties) to the treaty and by third persons, transcripts of hearings, where available; and orders, decisions and awards of the arbitral tribunal.’

82 Ibid.

83 See CETA, supra note 1, Art. 8.21 on the determination of the respondent for disputes with the European Union or its member states.

84 UNCITRAL Transparency Rules, supra note 41, Art. 3(2).

85 Ibid., Art. 2.

86 CETA, supra note 1, Art. 8.36(5).

87 Ibid.

88 CETA, supra note 1, Art. 8.36(1); UNCITRAL Transparency Rules, supra note 41, Art. 7.

89 Ibid.

90 UNCITRAL Transparency Rules, supra note 41, Art. 7(5): ‘Nothing in these Rules requires a respondent State to make available to the public information the disclosure of which it considers to be contrary to its essential security interests.’ (emphasis added).

91 Ibid., Art. 7(7).

92 CETA, supra note 1, Art. 8.38

93 UNCITRAL Transparency Rules, supra note 41, Art. 4.

94 Ibid., Art. 5.

95 Ibid., Arts. 4 and 5.

96 Ibid., Art. 3.38(1)(a).

97 Ibid., Art. 3.38(1)(b).

98 EVFTA, supra note 2, Art. 20.

99 Ibid., Art. 20(3).

100 UNCITRAL Transparency Rules, supra note 41, Art. 3(3).

101 EVFTA, supra note 2, Art. 20(4).

102 Ibid., Art. 20(7).

103 Ibid., Art. 25.

104 TTIP Proposal, supra note 4, Art. 18.

105 Ibid., Art. 18(2).

106 Ibid., Art. 22.

107 ESIPA, supra note 3, Arts. 3.16 and 3.17.

108 Ibid., Annex 8.

109 Ibid., Art. 5.

110 Ibid., Art. 2.

111 Ibid., Art. 3.

112 Ibid., Art. 3(5).

113 ESIPA, supra note 3, Art. 3.17.

114 One example is the tribunal’s discretion to restrain or delay publication of documents.

115 Supra note 108, Art. 4(2)–(11).

116 North American Free Trade Agreement (signed 1992, entered into force 1 January 1994), Annex 1137.4 notes that, where Canada and the United States are the disputing parties, either these respondent states or the disputing investor may make an award public. As for Mexico, the Annex notes that ‘The applicable arbitration rules apply to the publication of an award.’

117 CETA, Art. 8.21(3) notes that ‘[t]he European Union shall, after having made a determination, inform the investor as to whether the European Union or a Member State of the European Union shall be the respondent.’ The subsequent paragraph (4) further notes that ‘[i]n the event that the investor has not been informed of the determination within 50 days of delivering its notice requesting such determination: (a) if the measures identified in the notice are exclusively measures of a Member State of the European Union, the Member State shall be the respondent. (b) if the measures identified in the notice include measures of the European Union, the European Union shall be the respondent’. While this (partial) clarification is helpful, further clarity might be needed with regard to disputes relating to multiple measures by both actors.

118 UNCITRAL Transparency Rules, supra note 41, Art. 4(3)(a) and (b).

119 Self-judging ESI provisions have created widespread controversy in the context of the infamous ‘necessity’ defense in disputes concerning the Argentine economic crisis of 2001–2002. See J. Alvarez and K. Khamsi, ‘The Argentine Crisis and Foreign Investors – A Glimpse into the Heart of the Investment Regime’, in K. P. Sauvant (ed.), The Yearbook on International Investment Law and Policy 2008/2009 (2009), 379.

120 UNCITRAL Transparency Rules, supra note 41, Art. 7(5) (emphasis added).

121 Park, W. W., ‘Private Disputes and the Public Good: Explaining Arbitration Law’, (2005) 20 American University International Law Review 903 Google Scholar, at 906.