News in Brief
SIAC Investment Arbitration Rules come into effect; new SCC rules include appendix on investment treaty disputes
On January 1, 2017, the Investment Arbitration Rules of the Singapore Investment Arbitration Centre (SIAC) came into effect. Among the highlights are provisions on early dismissal of claims and defences, submissions by non-disputing parties and mandatory disclosure of third-party funding arrangements. The tribunal may consider such arrangements when apportioning costs.
The 2017 Arbitration Rules of the Stockholm Chamber of Commerce (SCC) entered into force on the same day. Appendix III contains additional provisions applicable to treaty-based investor–state arbitrations. Third parties or non-disputing treaty parties may request or be invited by the tribunal to make a written submission. Moreover, absent agreement on the number of arbitrators, investment tribunals will be composed of three arbitrators by default.
CETA approved by EU Parliament; provisional application depends on ratification by Canada
On February 15, 2017, the European Parliament approved the Comprehensive Economic and Trade Agreement (CETA), signed by Canada and the European Union on October 30, 2016 after seven years of negotiations. The agreement was approved by 408 Members of the European Parliament and rejected by 254, with 33 abstentions.
As reported in ITN, this approval paves the way for provisional application, which is expected to occur in the next few months, once Canada also ratifies the agreement. Provisions on investment protection (including the Investment Court System [ICS]), portfolio investment and related provisions from the financial services chapter will only enter into force after national ratification by individual EU member states, a process that can take several years.
After the vote, European Commission President Jean-Claude Juncker said: “This progressive agreement is an opportunity to shape globalization together and influence the setting of global trade rules. The best example of this is the work that we are already doing with our Canadian friends to establish multilateral rules to deal with investment issues.”
Trump pulls United States out of TPP; intends to pursue bilateral agreements
On January 23, 2017, fulfilling a campaign pledge, U.S. President Donald Trump formally withdrew the United States from the Trans-Pacific Partnership (TPP), signed in February 2016. The Trump administration indicated that it would pursue bilateral agreements instead.
In his campaign, the U.S. President also promised to renegotiate the North American Free Trade Agreement (NAFTA) with Canada and Mexico. In a meeting with Canadian Prime Minister Justin Trudeau on February 13, Trump said that U.S.–Canada trade relationships needed mere “tweaking,” while U.S.–Mexico relations posed greater challenges.
European Union and Canada co-host discussions on a multilateral investment court
On December 13 and 14, 2016, the European Commission and the Canadian Government co-hosted exploratory discussions on establishing a multilateral investment court. Government representatives from several countries attended the closed-door meeting in Geneva.
Upon concluding CETA, the two hosts had vowed to “work expeditiously” to create a permanent investment court, building on the ICS mechanism included in the agreement. The goal of the new court is to replace the existing regime of ad hoc investor–state arbitration as well as bilateral ICS mechanisms included in EU trade and investment agreements. It would be open to all interested countries to resolve disputes under existing and future investment treaties.
Argentina, Brazil, India, Japan and other nations reportedly rejected the initiative, which Canada and the European Union continued to advance at the World Economic Forum (WEF), in Switzerland. Indian Commerce and Industry Minister Nirmala Sitharaman said that “India summarily rejected” the idea that CETA, incorporating an investor–state dispute settlement (ISDS) mechanism, could be the template for a similar multilateral agreement.
In the occasion, Minister Sitharaman also emphasized India’s position in favour of requiring investors to exhaust local remedies before resorting to international tribunals: “Only after all local options have been exhausted for settling disputes between a corporate and a government, do we want to permit issues to be taken up in international arbitration tribunals.”
On February 27, the European Commission held a stakeholder meeting on a multilateral reform of investment dispute resolution. It is also holding a public consultation on options for a multilateral reform of investment dispute resolution, due to close on March 15.
Following criticisms of CETA, academics propose reforms in EU trade and investment policy and negotiations
On December 5, 2016, the Belgian region of Wallonia published the Namur Declaration, proposing to change EU trade policy and negotiations. The document was initially signed by 40 academics from several countries, including Paul Magnette, Minister-President of Wallonia. The region made the news in October 2016, when its parliament temporarily blocked the approval of CETA by the Belgian federal government.
Based on public concerns expressed in the context of CETA negotiations, the declaration makes proposals under three principles: (1) respect for democratic procedures, (2) compliance with socio-economic, sanitary and environmental legislation, and (3) guarantee of public interests in the dispute resolution mechanism.
In response to the Namur Declaration, over 60 European academics praised the European Union’s “unique decision-making process ensuring democratic legitimacy at multiple levels (going beyond any other country)” and denounced the threat of “attempts to renationalize EU policies.” They issued the Trading Together Declaration, developing five proposals to make the European Union more democratic.
Among the five proposals are increased transparency of all EU institutions on the objectives they pursue in international trade policy, as well as access of “all private stakeholders (not just foreign investors)” to mechanisms to ensure states’ compliance with international agreements, “including obligations on sustainability, environmental, social and health protection.”