EFILA publishes its submission for the public consultation on the “reform” of the investment dispute resolution system


EFILA just submitted to the European Commission its position paper regarding the public consultation organized by the European Commission on what it calls “a multilateral reform of investment dispute resolution”.

Similar to the previous public consultation on the ISDS in TTIP, the EC has organized this public consultation to obtain the views of stakeholders.

Yet again, this open up the risk that anti-trade/anti-ISDS/anti-globalization groups will hijack the process by overflodding the EC with identical submissions.

It thus remains to be seen whether the EC will indeed take into account the views of those (such as EFILA) who have actually expertise and experience in investment arbitration.

The Executive summary of EFILA’s position paper reads as follows:

  • EFILA questions whether the creation of a multilateral investment court (MIC) will actually resolve all the perceived problems and shortcomings of the current investor-state arbitration system.
  •  It is by no means clear that the total costs of creating such a MIC and in parallel Investment Court Systems (ICS) in separate EU FTAs will actually be lower. Also, it remains unclear whether the desired consistency could be achieved in light of the more than 3,000 BITs/FTAs and other multilateral investment agreements.
  • EFILA considers it highly important and necessary that a mechanism is set up, which guarantees a transparent and inclusive selection process of the members of the ICS/MIC. Inclusive process means that also the peers and users of the system can effectively take part in the selection process.
  • EFILA also believes that it is important that a mechanism is in place, which allows for the removal of unfit/biased members of the ICS/MIC by an external, independent body with the necessary expertise and experience in investment law and arbitration.
  • EFILA questions the need for any appeal mechanism. Indeed, EFILA questions whether this in the end will be cheaper than the current system.
  • EFILA considers it important and necessary that appeals are limited to points of law, thus should not extend to points of facts.
  • EFILA deems access to international arbitration mechanisms essential, in particular for SMEs and individuals. Expeditious and cost-effective procedures for low-value claims should be established. A legal advisory centre, which would be available for developing countries should also be available for SMEs and individuals.