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Columbia FDI Perspectives

Perspectives on topical foreign direct investment issues by

the Vale Columbia Center on Sustainable International Investment

No. 87 January 22, 2013

Editor-in-Chief: Karl P. Sauvant ([log in to unmask])

Managing Editor: Jennifer Reimer ([log in to unmask])

Trying to change the rules for responding to arbitration unilaterally:

The proposed new framework for investor-state dispute settlement for the EU

by

Ralph Alexander Lorz*

 
 
The Lisbon Treaty endowed the European Union (EU) with the exclusive competence to conclude agreements on foreign direct investment (FDI).
Given the economic power and relevance of the Union in the FDI field, a new hallmark could thunder through the world of investment arbitration as we know it. The latest example of this kind is the proposal for a regulation highlighting the Union’s desire to establish solutions explicitly tailored to its needs -- solutions not necessarily compatible with the mechanisms international investors are used to under modern bilateral investment treaties (BITs).

 
It would be a major achievement if foreign businesses investing in the EU could, for the first time, bring claims against the Union on the basis of BITs alleging that protection obligations have been breached. However, since negotiations are still underway, their likely outcome is hard to predict; therefore, whether the results will eventually fit into the established system or substantially depart from it remains speculative. Still, comments can be made on the perspectives embodied in the new regulation proposal and red flags can be raised.

 
It seems foreseeable that future EU BITs will -- for reasons of political balance -- probably be concluded as mixed agreements, to which both the Union and its members are parties. This will not create a problem if the treatment about which an investor complains comes directly from the Union and its institutions -- then the Union will act as respondent in a corresponding arbitration proceeding. But in reality, such cases will occur rather infrequently, just as most internal actions under Union law are carried out by national authorities and must therefore be challenged in domestic courts. Similarly, where the treatment in question flows from the institutions of a member State, it is supposed to act as respondent, although it is remarkable that, in this case, the Commission could give directions on particular issues.[1] Nevertheless, this is also a point that does not directly affect foreign investors.

 
Much more interesting to foreign investors is a provision that allows the Commission (under specified, but far-reaching circumstances) unilaterally to determine the status of respondents by taking cases away from member States even if a breach of obligations by their institutions is alleged.[2]

 
If the Commission can basically take over investment cases as it sees fit, potential claimants are put into an awkward position. It is unheard of that, in a case with more than one possible respondent, one of them is able to determine respondent status and therefore procedural responsibility in a legally binding manner. This could easily create inappropriate procedural relations at the expense of member States, which lose the ability to decide if and how they want to defend their own actions. What is more troubling from the viewpoint of potential claimants, though, is that they could thereby face a different respondent than the one they have chosen.

 
How the proposed regulation seeks to solve this problem suggests some disrespect for the procedural rules under which a potential arbitral tribunal may operate. It is questionable whether the procedural regimes of the respective arbitral institutions will allow respondent status to be determined without permission by the institution or the tribunal. The proposed regulation here attempts to prejudice arbitral proceedings before they even commence.

 
Two related problems are:

Possible delays caused by disputes between the Union and member States with regard to respondent status. For, if a member State does not concur with the Commission taking over a case, it might challenge that decision before the Court of Justice. What will then happen to the arbitration proceedings while the Court of Justice deliberates? Will they be stalled or conducted against both possible respondents until it is finally determined who shall respond? This uncertainty seems quite unbearable for a claimant.

Possible different determinations on jurisdiction. The EU is not a party to the most widespread regime of investor-State dispute settlement, the International Centre for Settlement of Investment Disputes (ICSID). This is troublesome since the Commission’s draft text on investor-State dispute settlement for EU agreements seems to restrict the employable arbitration systems to ICSID and UNCITRAL. Other renowned institutions (e. g., International Chamber of Commerce, Stockholm Chamber of Commerce) have so far been left out.

 
Consequently, either arbitral clauses in mixed agreements would be restricted to regimes under which the Union and member States are parties, or claimants could not only face respondents they did not envisage at the beginning, but also a different arbitral regime. This runs afoul of established principles of international arbitration.

 
It would therefore be advisable if the competent EU organs altered the regulation in question so as to determine the issue of respondent status by the outside appearance of responsibility for a taken measure. Then, an investor could simply initiate a claim against the party that has taken the measure alleged to have breached a protection standard. In most cases, this will be a member State -- which means that ICSID could be used regularly. Moreover, parallel claims against the EU and a member State would be avoided.

 
The material in this Perspective may be reprinted if accompanied by the following acknowledgment: “Ralph Alexander Lorz, ‘Trying to change the rules for responding to arbitration unilaterally: The proposed new framework for investor-state dispute settlement for the EU,’ Columbia FDI Perspectives, No. 87, January 22, 2013. Reprinted with permission from the Vale Columbia Center on Sustainable International Investment (www.vcc.columbia.edu).” A copy should kindly be sent to the Vale Columbia Center at [log in to unmask].


* Ralph Alexander Lorz ([log in to unmask]), LL.M. (Harvard), Attorney-at-Law (New York), holds the Chair of German and Foreign Public Law, European Law and Public International Law at Heinrich Heine University in Duesseldorf, Germany. The author wishes to thank Marc Bungenberg, August Reinisch and an anonymous reviewer for their helpful peer reviews. The views expressed by the author of this Perspective do not necessarily reflect the opinions of Columbia University or its partners and supporters. Columbia FDI Perspectives (ISSN 2158-3579) is a peer-reviewed series.

[1] COM (2012) 335 final, art. 9, para. 2.

[2] Ibid., art. 8, para. 2.

 

For further information, including information regarding submitting to the Perspectives, please contact: Vale Columbia Center on Sustainable International Investment, Jennifer Reimer, jreimer01@gmail.com or [log in to unmask].

 
The Vale Columbia Center on Sustainable International Investment (VCC – www.vcc.columbia.edu), led by Lisa Sachs, is a joint center of Columbia Law School and The Earth Institute at Columbia University. It seeks to be a leader on issues related to foreign direct investment (FDI) in the global economy. VCC focuses on the analysis and teaching of the implications of FDI for public policy and international investment law.


Most recent Columbia FDI Perspectives

No. 86, Catharine Titi, ‘EU investment agreements and the search for a new balance: A paradigm shift from laissez-faire liberalism toward embedded liberalism?,’ Columbia FDI Perspectives, January 3, 2013.

No. 85, Karl P. Sauvant and Huiping Chen, ‘A China – US bilateral investment treaty: A template for a multilateral framework for investment?,’ Columbia FDI Perspectives, December 17, 2012.

No. 84, Saurav Pathak et al., “Inward foreign direct investment: Does it enable or constrain domestic technology entrepreneurship?,” Columbia FDI Perspectives, December 3, 2012.

No. 83, Xiaofang Shen, “Untying the land knot: Turning investment challenges into opportunities for all citizens,” Columbia FDI Perspectives, November 19, 2012.

No. 82, John Kline, “Evaluate Sustainable FDI to Promote Sustainable Development,” Columbia FDI Perspectives, November 5, 2012.

No. 81, Ilan Alon and Aleh Cherp, “Is China’s outward investment in oil a global security concern?,” Columbia FDI Perspectives, October 22, 2012.

No. 80, Jo En Low, “State-controlled entities as ‘investors’ under international investment agreements,” Columbia FDI Perspectives, October 8, 2012.

No. 79, Lise Johnson, Absent from the discussion: The other half of investment promotion,” Columbia FDI Perspectives, September 24, 2012.

No. 78, Elizabeth Broomfield, “Reconciling IMF rules and international investment agreements: An innovative derogation for capital controls,” Columbia FDI Perspectives, September 10, 2012.

No. 77, Sandy Walker, “A new economic nationalism? Lessons from the PotashCorp decision in Canada,” Columbia FDI Perspectives, August 27, 2012.

 
All previous FDI Perspectives are available at http://www.vcc.columbia.edu/content/fdi-perspectives.


Karl P. Sauvant, Ph.D.
Resident Senior Fellow
Vale Columbia Center on Sustainable International Investment
Columbia Law School - Earth Institute
Columbia University
435 West 116th Street, Rm. JGH 645
New York, NY 10027
Ph: (212) 854-0689
Fax: (212) 854-7946

Please visit our website - http://www.vcc.columbia.edu

The Yearbook on International Investment Law and Policy 2010-2011 was released by Oxford University Press in December 2011. For details please see www.vcc.columbia.edu.
The following ebooks are available free of charge from the same website: FDI Perspectives: Issues in International Investment, Inward and Outward FDI Country Profiles, MNEs from Emerging Markets: New Players in the World FDI Market.
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