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ISDS, it could be difficult to attract FDI, particularly in emerging economies
that carry political and legal risks. Section 1 of this article discusses the
background leading up to the creation of the Investment Court System
(“ICS”) proposed by the European Union (“EU”). Section 2 then explains the
framework the ICS model with an analysis as to the flaws of the ICS
mechanism. In its current form, the ICS raises a number of issues and leaves
some questions open to debate.
1. BACKGROUND AND CONTEXT OF THE ICS
A. INTRODUCTION
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EU Member States are party to roughly 1,400 BITs before the EU
assumed exclusive competency for external trade policy through the Lisbon
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Treaty in December 2009. After the entry into force of the Lisbon Treaty, FDI was
included in the scope of the EU common commercial policy and the EU
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has begun negotiations of EU-wide BITs including investment provisions in its
FTAs. Anti-ISDS groups,mostly consisting of NGOs, have also started an
unprecedented backlash movement. Indeed, on the very same day when the
European Commission published its first communication on the EU investment
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policy on 7 July 2010, one of the anti-ISDS groups published a 100-page
10. European Commission, Investment Protection and Investor-to-State Dispute Settlements
in EU agreements, Fact Sheet, Nov. 2013. Retrieved from http://trade.ec.europa.eu/doclib/
docs/2013/november/tradoc_151916.pdf.
11. M. Weineger and G. Croisant, The European Commission Proposes a Move Towards a
Multilateral Investment Court System, University of Oxford Faculty of Law, 9 November
2017. Retrieved from https://www.law.ox.ac.uk/business-law-blog/blog/2017/11/european-
commission-proposes-move-towards-multilateral-investment.
12. Article 207 of the Treaty on the Functioning of the European Union.
13. Communication from the Commission to the Council, the European Parliament, the European
Economic Social Committee and the Committee of the Regions towards a Comprehensive
European International Investment Policy, 7 July 2010. Retrieved from https://
www.eesc.europa.eu/en/our-work/opinions-information-reports/opinions/towards-
comprehensive-european-international-investment-policy.
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