Four decisions adopted by Canada and the European Union on January 29 have moved the parties closer to implementing an Investment Court System (ICS) under the Canada-EU Comprehensive Economic and Trade Agreement (CETA). The decisions on appeals, interpretation, code of conduct, and mediation were formally endorsed by CETA’s Joint Committee and Committee on Services and Investment (CSI) and will take effect once the dispute resolution provision of CETA comes into force.
Whereas CETA entered into provisional application in September 2017, most of its Chapter Eight, which includes the investor–state dispute resolution provisions, will be in force only when every EU Member State ratifies the agreement—so far, 15 out of 27 states have given notice of CETA ratification.
The decisions adopted on January 29 establish the rules for the Appellate Tribunal’s functioning, including its composition and the procedures for modifying and reversing the ICS’s legal findings and conclusions. The rules for mediation, which aim at facilitating an amicable resolution of disputes, were also endorsed.
The adopted Code of Conduct for ICS judges establishes explicit disclosure, confidentiality, independence, and impartiality obligations, as well as prohibits former Tribunal or Appellate Tribunal members from acting as counsel before the Tribunal or Appellate Tribunal for three years from the end of their term. The fourth decision adopted sets out rules for binding interpretations by the CETA Joint Committee, ensuring that the provisions are interpreted as originally intended.
Often described as a “second-generation” trade agreement, as it explicitly allows governments space to regulate in the public interest, CETA nevertheless faces increasing opposition from activists groups in Ireland, where Parliament postponed a vote to ratify the agreement last December after a huge public outcry. Among activists’ concerns are the country’s food sovereignty and impacts on small farmholders’ long-term sustainability. The recently created Stop Ceta Ireland group launched a campaign against CETA’s ratification in February, which already achieved almost 1,500 followers on Twitter.
For Attracta Uí Bhroin, from the Irish Environmental Network, the ICS implementation could permit corporations to sue EU state members “for introducing progressive regulation.” “It is absolutely critical for individuals who are concerned about not just the environment, but the impact on their back pocket and their tax bills, to get onto their local TD [Irish Members of Parliament] to express their concerns and say it hasn’t been sufficient public debate,” added her during an interview to Action From Ireland (Afri) YouTube channel.