The Investment Chapters of the EU's International Trade and Investment Agreements in a Comparative Perspective

European Parliament, Policy Department DG External Policies, EP/EXPO/B/INTA/2015/01

175 Pages Posted: 22 Oct 2015

See all articles by Steffen Hindelang

Steffen Hindelang

University of Southern Denmark - Department of Law; Humboldt-Universität zu Berlin Walter Hallstein Institute for European Constitutional Law

Carl-Philipp Sassenrath

University of Bonn - Department of Law

Date Written: September 29, 2015

Abstract

Investor-State Dispute Settlement (ISDS) clauses in international investment agreements have traditionally been based on an approach which may be termed ‘light touch regulation’ of investment protection. The avenue taken by the recently negotiated EU draft agreements, the Comprehensive Economic and Trade Agreement (CETA) and the EU-Singapore Free Trade Agreement (EUSFTA), can be described as ‘more comprehensive regulation’. Likewise, EUSFTA and CETA provide a rather detailed body of law on substantive standards for the protection of foreign investment. While this may add to the clarity and predictability of the current regime of international investment law, it may also lead to a reduced standard of protection. Compared with other agreements, EUSFTA and CETA have attempted to rebalance the protection of private property and the host state’s regulatory autonomy. In terms of the regulation of ISDS proceedings, EUSFTA and CETA preserve its principle characteristics but deliver moderate change in five areas: (1) consultation mechanisms, (2) the relationship between ISDS and domestic remedies, (3) the appointment and conduct of arbitrators, (4) cost allocation, and (5) transparency rules. This study proposes (1) further development regarding the coordination between effective domestic legal systems and ISDS and (2) the start of negotiations for the establishment of a permanent appeals mechanism in a regional or bilateral context.

Suggested Citation

Hindelang, Steffen and Sassenrath, Carl-Philipp, The Investment Chapters of the EU's International Trade and Investment Agreements in a Comparative Perspective (September 29, 2015). European Parliament, Policy Department DG External Policies, EP/EXPO/B/INTA/2015/01. Available at SSRN: https://ssrn.com/abstract=2677552 or http://dx.doi.org/10.2139/ssrn.2677552

Steffen Hindelang (Contact Author)

University of Southern Denmark - Department of Law ( email )

Odense
Denmark

HOME PAGE: http://www.steffenhindelang.de

Humboldt-Universität zu Berlin Walter Hallstein Institute for European Constitutional Law ( email )

Unter den Linden 6
Berlin, D-10099
Germany

HOME PAGE: http://www.steffenhindelang.de

Carl-Philipp Sassenrath

University of Bonn - Department of Law ( email )

Regina-Pacis-Weg 3
Postfach 2220
Bonn, D-53012
Germany

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