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1. You are welcome to answer the questionnaire in any of the 24 official languages of the EU. Please indicate in which language you are replying.([ID14])
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3. First name:([ID40])
4. Last name:([ID41])
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8. Respondent's first name:([ID74])
9. Respondent's last name:([ID75])
11. Name of the organisation:([ID77])
12. Postal address of the organisation:([ID78])
13. Type of organisation: Please select the answer option that fits best.([ID79])
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15. Please indicate your organisation's main area/sector of activities/interest: [Max 100 characters]([ID94])
16. If you are a company/investor, how many employees does the company have? ([ID96])
17. If you are a trade, business or employers' professional association, please provide information on your members (numbers, names of member organisations).([ID102])
18. Have you or has your organisation ever been directly involved in an international investment dispute?([ID103])
19. If you answered "yes" to question 18, please indicate in what capacity you were involved or affected. Note: the point of this question is to differentiate between users and non-users of international investment dispute resolution.([ID106])
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21. If you answered "no" to question 18, but you have an interest in the matter, please indicate in what capacity you are following this issue:([ID116])
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23. Is your organisation included in the Transparency Register? If your organisation is not registered, we invite you to register here, although it is not compulsory to be registered to reply to this consultation. Why a transparency register?([ID90])
24. If so, please indicate your Register ID number:([ID128])
25. Country of organisation's headquarters([ID129])
26. If "other", please specify:([ID160])
27. The inclusion of an ICS in all relevant EU agreements has raised questions relating to the long-term efficiency of managing multiple bilateral dispute settlement instances in EU trade and investment agreements. There is also a cost aspect for the EU due to the fixed annual costs generated by each ICS (for each ICS approximately EUR 0.5 million/year on account of the remuneration of the permanent tribunal members and members of the appeal tribunal). To what extent do you consider that seeking to include an ICS in each EU agreement may be less optimal for the EU from the point of view of complexity and cost? : From 0 (not problematic) to 5 (very problematic) ([ID167])
28. The EU's reformed approach for investment dispute settlement can naturally only apply to future EU agreements. It leaves open the issue of what to do with the many existing investment treaties in force worldwide (3320 in force, as of November 2016 according to UNCTAD figures[1]), a very high number of which contain traditional ISDS provisions and could give rise to disputes using those dispute settlement provisions. Treaties between EU Member States and third countries alone account for around half of these existing treaties (1400 bilateral investment treaties (BITs) with third countries). The EU itself is party to the Energy Charter Treaty (ECT). It is not conceivable that such a high number of investment treaties could be renegotiated to allow to make changes to the ISDS provisions. At EU level, this raises a particular issue, as there would be two sets of investment dispute resolution rules applicable in the EU and Member States' investment relations with third countries depending on which treaty is at issue: (i) ISDS provisions would apply if a dispute is brought by an investor under one of the existing Member State BITs or the ECT; (ii) ICS would apply if a dispute is brought by an investor under an EU level trade and investment agreement with a third country. In your view how important is it that the same procedural rules for investment dispute settlement apply in EU Member States' existing BITs with third countries and in EU level trade and investment agreements with third countries? : From 0 (not important) to 5 (very important) ([ID182])
29. If you consider it important to have the same procedural rules apply, please indicate why:  From 0 (not important) to 5 (very important) : Increases legal certainty for investors and states in the EU and in third countries ([ID185])
29. If you consider it important to have the same procedural rules apply, please indicate why:  From 0 (not important) to 5 (very important) : Provides uniformity to the applicable dispute settlement rules ([ID186])
29. If you consider it important to have the same procedural rules apply, please indicate why:  From 0 (not important) to 5 (very important) : Improves investment climate in the EU and in third countries ([ID187])
29. If you consider it important to have the same procedural rules apply, please indicate why:  From 0 (not important) to 5 (very important) : It is important for the EU's credibility that reform of ISDS also applies at the level of EU Member States' BITs ([ID188])
Other reasons why it is important to have the same procedural rules apply. Please specify.([ID194])
30. The specific features below are some of the most important elements at the basis of the EU's bilateral ICSs to be included in the EU's trade and investment agreements with third countries. If a multilateral reform were to be started to what extent do you consider that these elements should also be reflected? From 0 (should not be included) to 5 (should certainly be included) : Permanent dispute resolution structure (i.e. not disbanded after issuing a ruling) ([ID204])
30. The specific features below are some of the most important elements at the basis of the EU's bilateral ICSs to be included in the EU's trade and investment agreements with third countries. If a multilateral reform were to be started to what extent do you consider that these elements should also be reflected? From 0 (should not be included) to 5 (should certainly be included) : Appeal instance to correct errors of law and manifest errors of fact ([ID205])
30. The specific features below are some of the most important elements at the basis of the EU's bilateral ICSs to be included in the EU's trade and investment agreements with third countries. If a multilateral reform were to be started to what extent do you consider that these elements should also be reflected? From 0 (should not be included) to 5 (should certainly be included) : Full-time adjudicators ([ID206])
30. The specific features below are some of the most important elements at the basis of the EU's bilateral ICSs to be included in the EU's trade and investment agreements with third countries. If a multilateral reform were to be started to what extent do you consider that these elements should also be reflected? From 0 (should not be included) to 5 (should certainly be included) : Fixed remuneration for adjudicators ([ID207])
30. The specific features below are some of the most important elements at the basis of the EU's bilateral ICSs to be included in the EU's trade and investment agreements with third countries. If a multilateral reform were to be started to what extent do you consider that these elements should also be reflected? From 0 (should not be included) to 5 (should certainly be included) : High qualification criteria for selecting adjudicators ([ID208])
30. The specific features below are some of the most important elements at the basis of the EU's bilateral ICSs to be included in the EU's trade and investment agreements with third countries. If a multilateral reform were to be started to what extent do you consider that these elements should also be reflected? From 0 (should not be included) to 5 (should certainly be included) : Random allocation of cases ([ID209])
30. The specific features below are some of the most important elements at the basis of the EU's bilateral ICSs to be included in the EU's trade and investment agreements with third countries. If a multilateral reform were to be started to what extent do you consider that these elements should also be reflected? From 0 (should not be included) to 5 (should certainly be included) : Transparency / full documentation disclosure requirements ([ID210])
30. The specific features below are some of the most important elements at the basis of the EU's bilateral ICSs to be included in the EU's trade and investment agreements with third countries. If a multilateral reform were to be started to what extent do you consider that these elements should also be reflected? From 0 (should not be included) to 5 (should certainly be included) : High ethics standards ([ID211])
30. The specific features below are some of the most important elements at the basis of the EU's bilateral ICSs to be included in the EU's trade and investment agreements with third countries. If a multilateral reform were to be started to what extent do you consider that these elements should also be reflected? From 0 (should not be included) to 5 (should certainly be included) : Safeguards for independence (e.g. random allocation, tenure, etc) ([ID431])
31. Can you identify other possible features that you believe should be included in a new multilateral system?([ID212])
32. An important criticism commonly made of the current investment dispute settlement system is that developing or transition economies do not always have the resources and legal expertise to defend themselves effectively and adequately against claims made by investors. Do you think that discussions on a new multilateral system for investment dispute resolution should include special assistance to developing countries? : From 0 (should not be addressed) to 5 (should certainly be addressed) ([ID221])
33. If the issue of special assistance for developing countries should be addressed, do you consider that centres that provide assistance to developing countries (such as the Advisory Centre on WTO Law - ACWL) which provide legal service and support in WTO dispute settlement proceedings, provide a useful model in this regard?  : From 0 (not a useful model) to 5 (certainly a very useful model) ([ID230])
34. Please provide any additional comments that you may wish to add on how to take account of the special needs of developing countries within a multilateral reform of investment dispute settlement.([ID240])
35. Similarly, critics of the system have consistently argued that it is difficult for SMEs to access the investment dispute settlement system considering the associated costs (although these are largely made up of legal costs) and perceived complexity. In the context of a multilateral reform, do you believe that there should be special provisions for SMEs?([ID189])
36. If yes, please rank the importance of the following proposals for making it easier for SMEs to resolve disputes: From 0 (not important) to 5 (very important) : Simplified procedures, including shorter timeframes ([ID238])
36. If yes, please rank the importance of the following proposals for making it easier for SMEs to resolve disputes: From 0 (not important) to 5 (very important) : If fees are applicable during the procedures, capped fees ([ID239])
36. If yes, please rank the importance of the following proposals for making it easier for SMEs to resolve disputes: From 0 (not important) to 5 (very important) : Flexible geographical hearing locations ([ID241])
36. If yes, please rank the importance of the following proposals for making it easier for SMEs to resolve disputes: From 0 (not important) to 5 (very important) : Enhanced possibilities to resort to mechanisms of alternative dispute resolution (such as mediation) ([ID246])
Other ideas for making it easier for SMEs to resolve disputes. Please specify([ID247])
37. Please provide any additional comments that you may wish to add on how to take account of the special needs of SMEs within a multilateral reform of investment dispute settlement.([ID248])
38. In your view, should a multilateral dispute settlement mechanism be limited to investment treaties only?([ID249])
39. If not, please identify what other issues relating to investment could be covered by a permanent multilateral dispute settlement mechanism.([ID250])
40. In most international judicial systems, the enforcement of the ruling or award is a crucial element for the effectiveness of the system in question. The same applies to investment dispute resolution. Under the current system of ad hoc ISDS arbitration there are a number of ways to enforce arbitral awards. For instance, the rules that apply to dispute settlement under the International Centre for Settlement of Investment Disputes (ICSID) Convention ensure that the enforcement of pecuniary awards is obligatory in the domestic courts of every state party to the ICSID Convention. Consequently, domestic courts cannot refuse the enforcement of an ICSID award and their power is limited to verifying that the award is authentic. 159 countries signatory to the ICSID Convention have subscribed to this system, which ensures an effective enforcement system. Other awards can be enforced via the United Nations New York Convention on the Enforcement of Arbitral Awards. Do you consider that in the context of discussions on a multilateral reform (which would include an appeal mechanism) a mechanism comparable to ICSID for the enforcement of decisions (i.e. that enforcement is not subject to domestic review) should be sought? : From 0 (no, this is not needed) to 5 (yes, this is certainly needed) ([ID259])
41.  Please provide any additional comments that you may wish to add on the enforcement of awards.([ID260])
42. A crucial aspect would be that such a single Multilateral Investment Court could potentially adjudicate disputes arising not just under future investment treaties but also under existing international investment treaties. This could for instance be achieved through a system of opt-ins where countries agree in the Treaty/Legal Instrument establishing the single Multilateral Investment Court to subject their investment treaties to the jurisdiction of the Court (a model could be the United Nations Mauritius Convention on Transparency for Investor-State Dispute Settlement). The single Multilateral Investment Court would thus in effect supersede ISDS provisions included in investment treaties of EU Member States with third countries or in investment treaties in force between third countries. It would also replace the ICS that would have been included in EU level agreements with third countries. Do you share the view that such a single Multilateral Investment Court should also be competent to adjudicate disputes arising under existing investment treaties, including EU Member State BITs with third countries, EU level trade and investment agreements and investment treaties in force between third countries? : From 0 (not important) to 5 (very important) ([ID270])
43. A number of potential positive effects have been identified which could result from centralising international investment dispute settlement in a single Multilateral Investment Court. Please indicate to what extent you agree that centralisation could contribute to the following: From 0 (not likely) to 5 (very likely) : More predictability in investment dispute resolution ([ID279])
43. A number of potential positive effects have been identified which could result from centralising international investment dispute settlement in a single Multilateral Investment Court. Please indicate to what extent you agree that centralisation could contribute to the following: From 0 (not likely) to 5 (very likely) : Higher degree of legitimacy for this type of dispute settlement ([ID280])
43. A number of potential positive effects have been identified which could result from centralising international investment dispute settlement in a single Multilateral Investment Court. Please indicate to what extent you agree that centralisation could contribute to the following: From 0 (not likely) to 5 (very likely) : Increased consistency of case law and legal correctness through the permanent appeal tribunal ([ID281])
43. A number of potential positive effects have been identified which could result from centralising international investment dispute settlement in a single Multilateral Investment Court. Please indicate to what extent you agree that centralisation could contribute to the following: From 0 (not likely) to 5 (very likely) : Higher level of efficiency in the adjudication procedure (more efficient adjudication) ([ID282])
43. A number of potential positive effects have been identified which could result from centralising international investment dispute settlement in a single Multilateral Investment Court. Please indicate to what extent you agree that centralisation could contribute to the following: From 0 (not likely) to 5 (very likely) : Lower costs for users (assuming some or all procedural costs would be borne by the states Party to the agreement) ([ID283])
Other contributions which could be achieved by centralisation. Please specify([ID284])
44. Another option that has emerged is the establishment of a permanent Multilateral Appeal Tribunal, i.e. without changing the existing first instance tribunals. Thus a Multilateral Appeal Tribunal would be limited to deal with ISDS awards appealed on the grounds of errors of law and manifest errors of fact, which the current ISDS system does not allow for. This would address the issue of ensuring legal correctness and assist with consistency of case law. The Multilateral Appeal Tribunal would rule on ISDS awards rendered under the ad hoc ISDS tribunals established under existing investment treaties (e.g. EU Member States' BITs) and under investment treaties in force between third countries. Such a Multilateral Appeal Tribunal would also replace the Appeal Tribunals included in the EU’s ICSs in EU trade and investment agreements with third countries. Do you agree that the creation of a permanent Multilateral Appeal Tribunal would already be an important tool to improve legal correctness in investment dispute resolution as argued above? : From 0 (completely disagree) to 5 (completely agree) ([ID294])
45. Do you consider that establishing a Multilateral Appeal Tribunal (i.e. without a multilateral tribunal at the level of the first instance) would be sufficient to satisfactorily reform the current investment dispute settlement system? : From 0 (completely disagree) to 5 (completely agree) ([ID303])
46.  Do you consider that it is important to ensure that each country party to the agreement establishing the single Multilateral Investment Court or Multilateral Appeal Tribunal should have the possibility to appoint one or more adjudicators? : From 0 (not important) to 5 (very important) ([ID313])
47.   Do you consider it important that the number of adjudicators should be tailored to the likely number of cases and not linked to the number of countries signatory to the agreement? : From 0 (not important) to 5 (very important) ([ID322])
48. Do you have any further comments on the manner in which adjudicators should be selected? ([ID323])
49.   Also common to both proposals whether to establish a single Multilateral Investment Court or a Multilateral Appeal Tribunal, are considerations on the qualifications required to be a permanent adjudicator. In the EU's Investment Court System (ICS), there are a number of criteria that adjudicators must meet for being eligible, including being qualified to hold judicial office in their country or being recognised jurists, as required by the International Court of Justice (ICJ) or the European Court of Human Rights (ECHR). Under the ICS, judges must also have expertise in public international law and previous experience in international investment law. It is assumed that adjudicators would be able to call on experts for technical or scientific information. Do you consider that these qualifications would also be appropriate for a permanent multilateral mechanism, whether a single Multilateral Investment Court or a Multilateral Appeal Tribunal? : From 0 (not appropriate) to 5 (fully appropriate) ([ID332])
50.  Do you have any further comments on the qualifications of adjudicators under such a mechanism?  ([ID333])
51.   An important consideration would be the remuneration and conditions of employment of these adjudicators. Judges in the International Court of Justice (ICJ), the World Trade Organisation (WTO) Appellate Body or the Court of Justice of the EU (CJEU) receive a regular monthly salary which is not linked to their workload. Do you consider that adjudicators in a single Multilateral Investment Court or a Multilateral Appeal Tribunal should be remunerated in a similar manner? : From 0 (completely disagree) to 5 (completely agree) ([ID342])
52. Under the EU’s ICS set out in EU level agreements, tribunal members must adhere to high standards of ethical conduct. In particular, they cannot act as counsel in investment disputes (so-called "double hatting"). This is also a safeguard ensuring their impartiality. The legal text in EU agreements establishing the ICS foresees the possibility that tribunal members become full-time and hence would, in principle, not be allowed to have external activities. Do you agree that adjudicators in a single Multilateral Investment Court or in a Multilateral Appeal Tribunal should be full-time with no external activities? : From 0 (completely disagree) to 5 (completely agree) ([ID351])
53. In most international and domestic courts, including under the EU’s ICS, disputes are allocated on a random basis to divisions of adjudicators to ensure impartiality and independence. Do you agree that a similar approach should be followed for the distribution of cases in a potential multilateral investment mechanism, whether a single Multilateral Investment Court or in a Multilateral Appeal Tribunal? : From 0 (completely disagree) to 5 (completely agree) ([ID360])
54. Another important consideration relates to the financing of a single Multilateral Investment Court or a Multilateral Appeal Tribunal, including salaries for adjudicators, staff and related administration expenses. For instance, under the EU's ICS, the Parties to the Agreement (i.e. the EU and the other country signing the trade and investment agreement) share the fixed operational costs of the ICS. A repartition key, for instance based on the level of economic development, is often used to determine the contribution of states that are members of international organisations. In your view, would it be appropriate to employ a repartition key to determine the share of the contracting Parties in the operational costs?  : From 0 (not appropriate) to 5 (fully appropriate) ([ID369])
55. In your view, should it also be considered that some of the operational costs could be funded in part by user fees (i.e. by investors and/or states)? : From 0 (not appropriate) to 5 (fully appropriate) ([ID378])
56. Do you consider that the establishment of a single Multilateral Investment Court or a Multilateral Appeal Tribunal could contribute in a positive way to improving the global investment climate? : From 0 (no contribution at all) to 5 (very strong contribution) ([ID388])
57. If yes, please indicate the specific reasons: From 0 (no impact) to 5 (strong impact) : Higher acceptability of investment dispute settlement ([ID397])
57. If yes, please indicate the specific reasons: From 0 (no impact) to 5 (strong impact) : Higher consistency of case law ([ID398])
57. If yes, please indicate the specific reasons: From 0 (no impact) to 5 (strong impact) : Unified dispute settlement system ([ID399])
If you consider there would be any other impacts, please specify and explain the link with the establishment of a single Multilateral Investment Court or a Multilateral Appeal Tribunal.([ID402])
58. The following preliminary economic impacts have been identified as resulting from the creation of a single Multilateral Investment Court or a Multilateral Appeal Tribunal for the settlement of investment disputes. Please indicate to which extent you share this assessment. From 0 (disagree) to 5 (fully agree) : Reduced budgetary expenditure for the EU as a result of phasing out multiple Investment Court Systems (ICSs) in EU agreements in favour of a single multilateral mechanism ([ID410])
58. The following preliminary economic impacts have been identified as resulting from the creation of a single Multilateral Investment Court or a Multilateral Appeal Tribunal for the settlement of investment disputes. Please indicate to which extent you share this assessment. From 0 (disagree) to 5 (fully agree) : Reduced costs for users (investors, states) from having one single multilateral mechanism because of increased predictability ([ID411])
58. The following preliminary economic impacts have been identified as resulting from the creation of a single Multilateral Investment Court or a Multilateral Appeal Tribunal for the settlement of investment disputes. Please indicate to which extent you share this assessment. From 0 (disagree) to 5 (fully agree) : Reduced costs because arbitrators' fees and fees of arbitral institutions (in current ISDS system) no longer necessary because remuneration of permanent adjudicators and court borne by Parties ([ID400])
If you consider there would be any other economic impacts, please specify and explain the link with the establishment of a single Multilateral Investment Court or a Multilateral Appeal Tribunal.([ID412])
59. No environmental impacts have been identified that would result from the creation of a single Multilateral Investment Court or a Multilateral Appeal Tribunal. Do you consider that there could be any environmental impacts?([ID430])
60. If you consider there would be any environmental impacts, please specify and explain the link with the establishment of a single Multilateral Investment Court or a Multilateral Appeal Tribunal.([ID422])
61. No social impacts have been identified that would result from the creation of a single Multilateral Investment Court or a Multilateral Appeal Tribunal since there would be no change to the substantive investment rules. Do you consider that there could be any social impacts? ([ID423])
62. If yes, please specify the social impacts and explain how they are linked to the establishment of a single Multilateral Investment Court or a Multilateral Appeal Tribunal. ([ID427])
63. You may also upload a position paper to support the opinions expressed in this questionnaire.([ID413])
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1. You are welcome to answer the questionnaire in any of the 24 official languages of the EU. Please indicate in which language you are replying.
2. You are replying:

3. First name:

4. Last name:
6. Country of residence:
7. If "other", please specify:
8. Respondent's first name:
9. Respondent's last name:
11. Name of the organisation:
12. Postal address of the organisation:
13. Type of organisation:

Please select the answer option that fits best.

14. If "other", please specify: 

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15. Please indicate your organisation's main area/sector of activities/interest:

[Max 100 characters]

16. If you are a company/investor, how many employees does the company have? 

17. If you are a trade, business or employers' professional association, please provide information on your members (numbers, names of member organisations).

18. Have you or has your organisation ever been directly involved in an international investment dispute?

19. If you answered "yes" to question 18, please indicate in what capacity you were involved or affected. Note: the point of this question is to differentiate between users and non-users of international investment dispute resolution.

20. If "other", please specify:

[Max 200 characters]

21. If you answered "no" to question 18, but you have an interest in the matter, please indicate in what capacity you are following this issue:

22. If "other", please specify:

[Max 200 characters]

23. Is your organisation included in the Transparency Register?
If your organisation is not registered, we invite you to register here, although it is not compulsory to be registered to reply to this consultation. Why a transparency register?

24. If so, please indicate your Register ID number:
25. Country of organisation's headquarters
26. If "other", please specify:
27. The inclusion of an ICS in all relevant EU agreements has raised questions relating to the long-term efficiency of managing multiple bilateral dispute settlement instances in EU trade and investment agreements. There is also a cost aspect for the EU due to the fixed annual costs generated by each ICS (for each ICS approximately EUR 0.5 million/year on account of the remuneration of the permanent tribunal members and members of the appeal tribunal).


To what extent do you consider that seeking to include an ICS in each EU agreement may be less optimal for the EU from the point of view of complexity and cost?

From 0 (not problematic) to 5 (very problematic)
28. The EU's reformed approach for investment dispute settlement can naturally only apply to future EU agreements. It leaves open the issue of what to do with the many existing investment treaties in force worldwide (3320 in force, as of November 2016 according to UNCTAD figures[1]), a very high number of which contain traditional ISDS provisions and could give rise to disputes using those dispute settlement provisions. Treaties between EU Member States and third countries alone account for around half of these existing treaties (1400 bilateral investment treaties (BITs) with third countries). The EU itself is party to the Energy Charter Treaty (ECT). It is not conceivable that such a high number of investment treaties could be renegotiated to allow to make changes to the ISDS provisions.


At EU level, this raises a particular issue, as there would be two sets of investment dispute resolution rules applicable in the EU and Member States' investment relations with third countries depending on which treaty is at issue: (i) ISDS provisions would apply if a dispute is brought by an investor under one of the existing Member State BITs or the ECT; (ii) ICS would apply if a dispute is brought by an investor under an EU level trade and investment agreement with a third country.

In your view how important is it that the same procedural rules for investment dispute settlement apply in EU Member States' existing BITs with third countries and in EU level trade and investment agreements with third countries?

From 0 (not important) to 5 (very important)
29. If you consider it important to have the same procedural rules apply, please indicate why: 

From 0 (not important) to 5 (very important)

Increases legal certainty for investors and states in the EU and in third countries
Provides uniformity to the applicable dispute settlement rules
Improves investment climate in the EU and in third countries
It is important for the EU's credibility that reform of ISDS also applies at the level of EU Member States' BITs

Other reasons why it is important to have the same procedural rules apply. Please specify.

30. The specific features below are some of the most important elements at the basis of the EU's bilateral ICSs to be included in the EU's trade and investment agreements with third countries. If a multilateral reform were to be started to what extent do you consider that these elements should also be reflected?

From 0 (should not be included) to 5 (should certainly be included)

Permanent dispute resolution structure (i.e. not disbanded after issuing a ruling)
Appeal instance to correct errors of law and manifest errors of fact
Full-time adjudicators
Fixed remuneration for adjudicators
High qualification criteria for selecting adjudicators
Random allocation of cases

Transparency /

full documentation disclosure requirements
High ethics standards
Safeguards for independence (e.g. random allocation, tenure, etc)
31. Can you identify other possible features that you believe should be included in a new multilateral system?

32. An important criticism commonly made of the current investment dispute settlement system is that developing or transition economies do not always have the resources and legal expertise to defend themselves effectively and adequately against claims made by investors.


Do you think that discussions on a new multilateral system for investment dispute resolution should include special assistance to developing countries?

From 0 (should not be addressed) to 5 (should certainly be addressed)
33. If the issue of special assistance for developing countries should be addressed, do you consider that centres that provide assistance to developing countries (such as the Advisory Centre on WTO Law - ACWL) which provide legal service and support in WTO dispute settlement proceedings, provide a useful model in this regard? 

From 0 (not a useful model) to 5 (certainly a very useful model)
34. Please provide any additional comments that you may wish to add on how to take account of the special needs of developing countries within a multilateral reform of investment dispute settlement.
35. Similarly, critics of the system have consistently argued that it is difficult for SMEs to access the investment dispute settlement system considering the associated costs (although these are largely made up of legal costs) and perceived complexity.


In the context of a multilateral reform, do you believe that there should be special provisions for SMEs?

36. If yes, please rank the importance of the following proposals for making it easier for SMEs to resolve disputes:

From 0 (not important) to 5 (very important)

Simplified procedures, including shorter timeframes
If fees are applicable during the procedures, capped fees
Flexible geographical hearing locations
Enhanced possibilities to resort to mechanisms of alternative dispute resolution (such as mediation)

Other ideas for making it easier for SMEs to resolve disputes. Please specify

37. Please provide any additional comments that you may wish to add on how to take account of the special needs of SMEs within a multilateral reform of investment dispute settlement.

38. In your view, should a multilateral dispute settlement mechanism be limited to investment treaties only?

39. If not, please identify what other issues relating to investment could be covered by a permanent multilateral dispute settlement mechanism.

40. In most international judicial systems, the enforcement of the ruling or award is a crucial element for the effectiveness of the system in question. The same applies to investment dispute resolution. Under the current system of ad hoc ISDS arbitration there are a number of ways to enforce arbitral awards. For instance, the rules that apply to dispute settlement under the International Centre for Settlement of Investment Disputes (ICSID) Convention ensure that the enforcement of pecuniary awards is obligatory in the domestic courts of every state party to the ICSID Convention. Consequently, domestic courts cannot refuse the enforcement of an ICSID award and their power is limited to verifying that the award is authentic. 159 countries signatory to the ICSID Convention have subscribed to this system, which ensures an effective enforcement system. Other awards can be enforced via the United Nations New York Convention on the Enforcement of Arbitral Awards.


Do you consider that in the context of discussions on a multilateral reform (which would include an appeal mechanism) a mechanism comparable to ICSID for the enforcement of decisions (i.e. that enforcement is not subject to domestic review) should be sought?

From 0 (no, this is not needed) to 5 (yes, this is certainly needed)

41.  Please provide any additional comments that you may wish to add on the enforcement of awards.
42. A crucial aspect would be that such a single Multilateral Investment Court could potentially adjudicate disputes arising not just under future investment treaties but also under existing international investment treaties. This could for instance be achieved through a system of opt-ins where countries agree in the Treaty/Legal Instrument establishing the single Multilateral Investment Court to subject their investment treaties to the jurisdiction of the Court (a model could be the United Nations Mauritius Convention on Transparency for Investor-State Dispute Settlement). The single Multilateral Investment Court would thus in effect supersede ISDS provisions included in investment treaties of EU Member States with third countries or in investment treaties in force between third countries. It would also replace the ICS that would have been included in EU level agreements with third countries.


Do you share the view that such a single Multilateral Investment Court should also be competent to adjudicate disputes arising under existing investment treaties, including EU Member State BITs with third countries, EU level trade and investment agreements and investment treaties in force between third countries?

From 0 (not important) to 5 (very important)

43. A number of potential positive effects have been identified which could result from centralising international investment dispute settlement in a single Multilateral Investment Court.


Please indicate to what extent you agree that centralisation could contribute to the following:

From 0 (not likely) to 5 (very likely)

More predictability in investment dispute resolution
Higher degree of legitimacy for this type of dispute settlement
Increased consistency of case law and legal correctness through the permanent appeal tribunal
Higher level of efficiency in the adjudication procedure (more efficient adjudication)
Lower costs for users (assuming some or all procedural costs would be borne by the states Party to the agreement)

Other contributions which could be achieved by centralisation. Please specify

44. Another option that has emerged is the establishment of a permanent Multilateral Appeal Tribunal, i.e. without changing the existing first instance tribunals. Thus a Multilateral Appeal Tribunal would be limited to deal with ISDS awards appealed on the grounds of errors of law and manifest errors of fact, which the current ISDS system does not allow for. This would address the issue of ensuring legal correctness and assist with consistency of case law.

The Multilateral Appeal Tribunal would rule on ISDS awards rendered under the ad hoc ISDS tribunals established under existing investment treaties (e.g. EU Member States' BITs) and under investment treaties in force between third countries. Such a Multilateral Appeal Tribunal would also replace the Appeal Tribunals included in the EU’s ICSs in EU trade and investment agreements with third countries.

Do you agree that the creation of a permanent Multilateral Appeal Tribunal would already be an important tool to improve legal correctness in investment dispute resolution as argued above?

From 0 (completely disagree) to 5 (completely agree)

45. Do you consider that establishing a Multilateral Appeal Tribunal (i.e. without a multilateral tribunal at the level of the first instance) would be sufficient to satisfactorily reform the current investment dispute settlement system?

From 0 (completely disagree) to 5 (completely agree)

46.  Do you consider that it is important to ensure that each country party to the agreement establishing the single Multilateral Investment Court or Multilateral Appeal Tribunal should have the possibility to appoint one or more adjudicators?

From 0 (not important) to 5 (very important)

47.   Do you consider it important that the number of adjudicators should be tailored to the likely number of cases and not linked to the number of countries signatory to the agreement?

From 0 (not important) to 5 (very important)

48. Do you have any further comments on the manner in which adjudicators should be selected? 
49.   Also common to both proposals whether to establish a single Multilateral Investment Court or a Multilateral Appeal Tribunal, are considerations on the qualifications required to be a permanent adjudicator.

In the EU's Investment Court System (ICS), there are a number of criteria that adjudicators must meet for being eligible, including being qualified to hold judicial office in their country or being recognised jurists, as required by the International Court of Justice (ICJ) or the European Court of Human Rights (ECHR). Under the ICS, judges must also have expertise in public international law and previous experience in international investment law. It is assumed that adjudicators would be able to call on experts for technical or scientific information.

Do you consider that these qualifications would also be appropriate for a permanent multilateral mechanism, whether a single Multilateral Investment Court or a Multilateral Appeal Tribunal?

From 0 (not appropriate) to 5 (fully appropriate)

50.  Do you have any further comments on the qualifications of adjudicators under such a mechanism?

 

51.   An important consideration would be the remuneration and conditions of employment of these adjudicators. Judges in the International Court of Justice (ICJ), the World Trade Organisation (WTO) Appellate Body or the Court of Justice of the EU (CJEU) receive a regular monthly salary which is not linked to their workload.

Do you consider that adjudicators in a single Multilateral Investment Court or a Multilateral Appeal Tribunal should be remunerated in a similar manner?

From 0 (completely disagree) to 5 (completely agree)

52. Under the EU’s ICS set out in EU level agreements, tribunal members must adhere to high standards of ethical conduct. In particular, they cannot act as counsel in investment disputes (so-called "double hatting"). This is also a safeguard ensuring their impartiality. The legal text in EU agreements establishing the ICS foresees the possibility that tribunal members become full-time and hence would, in principle, not be allowed to have external activities.


Do you agree that adjudicators in a single Multilateral Investment Court or in a Multilateral Appeal Tribunal should be full-time with no external activities?

From 0 (completely disagree) to 5 (completely agree)

53. In most international and domestic courts, including under the EU’s ICS, disputes are allocated on a random basis to divisions of adjudicators to ensure impartiality and independence.


Do you agree that a similar approach should be followed for the distribution of cases in a potential multilateral investment mechanism, whether a single Multilateral Investment Court or in a Multilateral Appeal Tribunal?

From 0 (completely disagree) to 5 (completely agree)

54. Another important consideration relates to the financing of a single Multilateral Investment Court or a Multilateral Appeal Tribunal, including salaries for adjudicators, staff and related administration expenses. For instance, under the EU's ICS, the Parties to the Agreement (i.e. the EU and the other country signing the trade and investment agreement) share the fixed operational costs of the ICS.

A repartition key, for instance based on the level of economic development, is often used to determine the contribution of states that are members of international organisations.

In your view, would it be appropriate to employ a repartition key to determine the share of the contracting Parties in the operational costs? 

From 0 (not appropriate) to 5 (fully appropriate)

55. In your view, should it also be considered that some of the operational costs could be funded in part by user fees (i.e. by investors and/or states)?

From 0 (not appropriate) to 5 (fully appropriate)

56. Do you consider that the establishment of a single Multilateral Investment Court or a Multilateral Appeal Tribunal could contribute in a positive way to improving the global investment climate?

From 0 (no contribution at all) to 5 (very strong contribution)

57. If yes, please indicate the specific reasons:

From 0 (no impact) to 5 (strong impact)

Higher acceptability of investment dispute settlement

Higher consistency of case law
Unified dispute settlement system

If you consider there would be any other impacts, please specify and explain the link with the establishment of a single Multilateral Investment Court or a Multilateral Appeal Tribunal.

58. The following preliminary economic impacts have been identified as resulting from the creation of a single Multilateral Investment Court or a Multilateral Appeal Tribunal for the settlement of investment disputes.

Please indicate to which extent you share this assessment.

From 0 (disagree) to 5 (fully agree)

Reduced budgetary expenditure for the EU as a result of phasing out multiple Investment Court Systems (ICSs) in EU agreements in favour of a single multilateral mechanism

Reduced costs for users (investors, states) from having one single multilateral mechanism because of increased predictability
Reduced costs because arbitrators' fees and fees of arbitral institutions (in current ISDS system) no longer necessary because remuneration of permanent adjudicators and court borne by Parties

If you consider there would be any other economic impacts, please specify and explain the link with the establishment of a single Multilateral Investment Court or a Multilateral Appeal Tribunal.

59. No environmental impacts have been identified that would result from the creation of a single Multilateral Investment Court or a Multilateral Appeal Tribunal.

Do you consider that there could be any environmental impacts?

60. If you consider there would be any environmental impacts, please specify and explain the link with the establishment of a single Multilateral Investment Court or a Multilateral Appeal Tribunal.

61. No social impacts have been identified that would result from the creation of a single Multilateral Investment Court or a Multilateral Appeal Tribunal since there would be no change to the substantive investment rules.


Do you consider that there could be any social impacts? 

62. If yes, please specify the social impacts and explain how they are linked to the establishment of a single Multilateral Investment Court or a Multilateral Appeal Tribunal. 

63. You may also upload a position paper to support the opinions expressed in this questionnaire.
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