Introduction: from ISDS to ICS
The private tribunals CETA established that were designed to settle disputes between investors and States drew much criticism. Some previous examples (such as Philip Morris versus Australia or Vatenfall against Germany) highlighted to what extent the States’ right to regulate could be undermined by Investor to State Dispute Settlement (ISDS) mechanisms. Indeed, citizens legitimately wondered why investors’ claims could not be dealt with by national courts and were concerned about the lack of transparency of the proceedings and the risks of conflicts of interest. Faced with increasing pressure from the civil society and parliamentarians, the European Commission negotiated with its Canadian counterpart a « new system for dispute settlement », called the Investment Court System (ICS). Although a few improvements were brought forward, the nature of such a mechanism, whose main features are in Chapter 8 of CETA, remains deeply flawed.
Pro & Cons
PROS: on dispute settlement http://ec.europa.eu/trade/policy/in-focus/ceta/#investment
CONS: Association of German Judges (DRB), Opinion on the establishment of an investment tribunal in TTIP, February 2016http://globalarbitrationnews.com/german-association-judges-proposal-european-commission-introduction-investment-court-system-settle-investor-state-disputes-transatlantic-trade-investmen/
Corporate Europe, Statement on ISDS, February 2016. http://corporateeurope.org/international-trade/2016/02/statement-against-investor-protection-ttip-ceta-and-other-trade-deals
ETUC, Position on Commission’s proposal for an Investment Court System in TTIP and CETA
ETUC and Canadian Labour Congress, Joint Statement on changes needed to CETA