European Union plans of creating the Multilateral Investment Court

The Council of European Union has recently adopted and published guidelines that authorise the European Commission to conduct possible negotiations, on the behalf of the European Union, concerning the convention and establishing the Investment Court. Initial discussions and first works on the project were launched in late 2017 under the auspices of United Nations Commision on International Trade Law (UNCITRAL). The so-called Multilateral Investment Court (MIC), aims at addressing the criticism relating to various mechanisms in European Union trade and investment agreements.

The main goal of establishing the Multilateral Investment Court is to create a permanent and solid institution responsible for regulating any possible investment disputes. MIC is believed to becoming an answer to the presence of Investor-State Dispute Settlement (ISDS) mechanisms that has recently became the subject to heated public scrutiny. What is more, Multilateral Investment Court aims at fully replacing the bilateral investment court system.

ISDS mechanisms are generally perceived as threatening to states right and strongly criticised for their lack of appellate instruments, consistency, clarity and still increasing enormous costs. By definition, Multilateral Investment Court is believed to become an answer to complex issues with ISDS. The newly proposed project is meant to deal with various procedural problems and substantive matters by guaranteeing the appeal of decisions and its consistent in case-law, permanent functioning.

Negotiations for the Convention mention that the MIC will strongly base on the international and permanent nature of the institution and the concept of clear and transparent judicial proceeding. What is crucial, the judges will be required to remain impartial and independent and their priority is to successfully and efficiently carry out made decisions.

The initiative was fully adopted and published by the European Commission on the 20th of March 2018. Established guidelines include specific instructions for the Commission on European Union accession to the Convention, the exact structure of the court, procedural safeguards, independence status, transparency of proceedings and its effectiveness.