In a statement issued in early February 2016, the German Association of Judges (known by its German acronym, DRB) firmly rejected the proposal published by the European Commission on September 16, 2015 to establish an Investment Court System (ICS) under the Transatlantic Trade and Investment Partnership (TTIP) between the European Union and the United States.
The DRB saw no need for the proposed ICS, as existing judicial systems in EU member states guarantee access to justice and grant effective protection to foreign investors. It argued that, even if that were not the case, the issue should be addressed by national parliaments. For the DRB, creating special courts is not the proper way to guarantee legal certainty.
The statement also questioned whether the European Union has the legislative competence to create an investment court. It pointed out that the proposed court would limit legislative powers and alter the existing court system, both in the European Union and in member states.
Finally, the statement criticized the proposed procedure and criteria for appointing ICS judges, which would not meet the international requirements for technical and financial independence. According to the DRB, the pool of judges would tend to be limited to persons already involved in international investment arbitration, and ICS would emerge as a permanent arbitration facility rather than as an international court.
The DRB, founded in 1909, is Germany’s largest professional organization of judges and public prosecutors. The official text of DRB Opinion No. 04/16 is available in German only.