Research On Investment Court System In TTIP

By the end of 2015,the European Union(EU)introduced the European Union Investment Court System(ICS),trying to replace the current investment arbitration mechanism which is the most widespread Investor-State Dispute Settlement(ISDS)in the investment chapter in the negotiation of EU-USA Transatlantic Trade and Investment Partnership(TTIP).Till now,the European Union has introduced this system into the newly sighed EU-Canada Comprehensive Economic and Trade Agreement(CETA)and EU-Vietnam Free Trade Agreement(EU-Vietnam FTA).The EU also makes it clear that ICS will be used as a model in all the trade and investment negotiations with third countries.China-EU Bilateral Investment Treaty is still under negotiations and this policy will inevitably influence the dispute settlement mechanism in the BIT negotiations.This paper will first explain the background of this new Investment Court System.On the one hand,the traditional ISDS has been widely criticized by the society,especially during the 2014 EU public consultation regarding the ISDS mechanism in the TTIP negotiation which ended up with 97% of the public against ISDS,even including the recall of eliminating this mechanism wholly out of TTIP.With Vattenfall AB and others v.Federal Republic of Germany and Philip Morris v.Australia,we can find some problems with the current ISDS.The fundamental impetusof the reform shall be the change in the international investment environment,where the developed countries change from pure investmentoutflow countries to both investment outflow and inflow countries,hoping to reshape international investment rules and emphasizing the protection of the investors and the balance of the country's right to regulate.On the other hand,there is a change of investment policy and competence within the EU.After the entry into force of Lisbon Treaty in 2009,the EU has obtained exclusive competence in foreign direct investment and has replaced its member states to negotiate and sign international investment treaties.Since the EU is not a party ofConvention on the Settlement of Investment Disputes Between States and Nationals of Other States(ICSID Convention),the EU want to take this opportunity to reform international investment rules and its final goal is to establish multilateral investment court and include such investment rules into existing WTO rules.In the second part,this paper will elaborate and comment on the main initiatives in the Investment Court System in the existing three EU proposals.ICS will consist of permanent first trial and an appeal court.The members of the courts shall be publicly appointed by the parties to the treaty and the judges in each case shall be decided by the chairman of the court,while the investor and the state each have the right to nominate one arbitrator in traditional ad hoc investment arbitration.The system is of great uniqueness.It strengthens the state's right to regulate,strengthens the principle of transparency,alleviates the financial cost of the host country,and guarantees the impartiality and legitimacy and consistency of arbitral awards.However,while ICS innovates,there are still some major issues and challenges that will affect the future development of ICS.First,talk about the appointment of arbitrators.Although the composition of the court must include aperson from the third country,and the third country nationals shall serve as the leader or chairman.However,there are no specific and explicit provisions on how to choosea person from the third country.Second,the scope of the Court of Appeal's review allows both the examination of facts and the review of laws,which can make it difficult to guarantee the consistency of arbitral awards.The third issue is the question of the investment court system and the EU legal order.Does the Investment Court have the power to interpret the EU law? Does the court's interpretation of the law have any effect on the EU courts? The finalinterpretation of this issue is in the EU court.Finally,it is about the enforcement of investment court decisions.Investment courts have the characteristics of both litigation and arbitration.They are the test of the essential distinction between litigation and arbitration.Some have even suggested that this is a new hybrid dispute settlement method.The nature of the system will have a direct impact on the enforcement of the award.The TTIP Treaty provides that the award is automatically considered to apply the ICSID Convention and the New York Convention.The There is a risk for the implementation due to its unknown nature and does not apply to the court system two international treaties are recognized and enforced.Then,this paper will focus on the differences of investment tribunalsystemand ICSID arbitration.First,the duration of both trials.The ICSID arbitration adopts the traditional principle of final adjudication,while the investment court system has established an appellate court to avoid inconsistencies in the adjudication.Second,the appointment of arbitrators.Arbitrators in the ICSID Center are subjectto many factors that challenge their independence and impartiality.The investment court system improves the independence and impartiality of judges in investment tribunals by stipulating the appointment of judges,term of office,salary,the distribution of cases,barriers to entry and code of conduct.Third,the transparency of arbitration requirements.The ICSID Center has put in place a number of systems to enhance the transparency of arbitration,such as the establishment of a system of friends of forensics.The investment court system has placed further demands on transparency and transparency on public documents,open hearings and third-party participation.Fourth,monitoring mechanism.The rulings made by the ICSID Center can only be overseen by the procedures provided by the Convention itself.The establishment of the appellate body in the investment court system effectively guarantees the consistency of the ruling.Finally,the recognition and enforcement of awards.The recognition and enforcement of ICSID Center arbitration are two distinct phases,with a distinction between the two phases.The investment court contains several arbitration rules,which are more mandatory than other enforcement procedures.The third part of this article will analyze the impact of investment court system on China and China's attitude.First of all,introduce the current practice of investment arbitration in our country.As China gradually becomes a big investment country,it is necessary for our country to actively participate in the wave of reforms in the new round of bilateral investment treaties.Second,at present,our country's role in the field of international investment should also be analyzed and discussed from two aspects when the capital-importing country changes its status to a country that has both capital-exporting countries and capital-importing countries when considering the impact of the investment tribunal system on our country.Finally,considering the background of China's national conditions and the development of the times,and grasping the evolution of the international investment rules,China's judgments on the investment court system should be correctly judged and the reasonable suggestions forChina should be put forward.