The new system comprises standing tribunals at two instances:
• a Tribunal of First Instance (or “Investment Tribunal”) with 15 judges appointed jointly by the EU and the US governments, with five appointees each from among EU nationals, US nationals and third state nationals, and
• an Appeal Tribunal with 6 publicly appointed members, similarly with a mix of nationalities in the same proportions.
These tribunals would have exclusive jurisdiction to hear investment disputes, so replacing at one stroke for all future EU agreements the current mechanism of ad hoc investment arbitration tribunals that has existed since the creation of ICSID 50 years ago and that has been virtually universally adopted in bilateral and multilateral investment protection treaties since the mid-1980’s.
Trade Commissioner Malmström describes the proposal as “delivering on our promise – to propose a new, modernised system of investment courts, subject to democratic principles and public scrutiny”.
The Commission’s proposal will now be subject to discussion with the Council and the European Parliament, following which the intention is to present it as an EU text proposal in the EU-US trade talks (TTIP) and in other ongoing and future negotiations.