Procedural Multilateralism and Multilateral Investment Court

Elaine Fahey (ed.) Institutionalisation Beyond the Nation State: Transatlantic Relations – Data Privacy and Trade Law, Springer, 2018

14 Pages Posted: 22 May 2017 Last revised: 10 Apr 2020

See all articles by Catharine Titi

Catharine Titi

CNRS; University Paris II Panthéon-Assas

Date Written: May 15, 2017

Abstract

Recent decades have witnessed the growing malaise of multilateralism within international economic governance and an inclination for bilateralism and tailor-made solutions. And yet procedural multilateralism does exist in international investment law. The ICSID Convention is a multilateral treaty, and UNCITRAL’s Mauritius Convention, is multilateral – or at least of multilateral ambition. Some limited subject-matter multilateral initiatives also exist outside international investment law and offer inspiration in this respect. This paper assesses the Mauritius Convention and the OECD’s Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (BEPS), in order to draw inspiration for the European Union’s multilateral investment court. Its emphasis is on recent developments, in light of the EU’s 2017 public consultation on a multilateral reform of investment dispute resolution. It argues that while the UNCITRAL and OECD examples of ‘retroactively’ reforming thousands of existing treaties can offer useful guidance, the establishment of a multilateral investment court ‘applicable’ to existing IIAs would require two instruments: a convention regulating the relationship between IIAs and the multilateral investment court, and a standalone convention (the statute) on the multilateral investment court; and that only the first of these instruments can draw on the UNCITRAL and OECD precedents.

Keywords: Mauritius Convention, OECD Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (BEPS), Multilateral Investment Court, European Union investment policy

JEL Classification: F02, F13, F21, F53, K41, K39, K40, K10, K33, K49, K12, K19, K20, K29, H70, E22, H87, F50, F52

Suggested Citation

Titi, Catharine, Procedural Multilateralism and Multilateral Investment Court (May 15, 2017). Elaine Fahey (ed.) Institutionalisation Beyond the Nation State: Transatlantic Relations – Data Privacy and Trade Law, Springer, 2018, Available at SSRN: https://ssrn.com/abstract=2971887

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