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report calling for the dismatling of investment arbitration. Opponents of
ISDS have raised the following challenges : lack of neutrality, transparency

and legitimacy; conflicts of interest among arbitrators (who concurrently act

as counsel); encroachment on the State’s right to regulate; unpredictability;
and expensiveness.

Due to the perceived shortcomings of ISDS, the EU presented its
proposal to replace the current ad hoc system in which tribunals are constituted
on a case-by-case basis by a permanent ICS. As a result of the consultation

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on the Transatlantic Trade and Investment Partnership (“TTIP”) with the
United States made public on 12 November 2015, the EU sought to replace
investment arbitration with ICS in the framework of EU trade and investment
negotiations. Moreover, the EU proposed to reconceptualize international

investment law to promote public law approach to ISDS by introducing a panel

of qualified judges, transparency rules, third party participation and protection
of State’s Right to Regulate. The EU and Canada subsequently renegotiated
the Comprehensive Economic and Trade Agreement with Canada (“CETA”), 16

the first EU agreement signed by the EU with investment protection provisions,

established a new, two-tiered ICS. The ICS also made its way into the EU and
Vietnam free trade deal concluded in January 2016 (“EU-Vietnam FTA”).
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14. Reclaiming Public Interest in Europe’s International Investment Policy, EU Investment
Agreements in the Lisbon Treaty Era: A Reader, Seattle to Brussels Network, the Transnational
Institute on behalf of the Investment Working Group of the Seattle to Brussels Network, 7
July 2010. Retrieved from https://www.somo.nl/wp-content/uploads/2010/07/A-Reader.pdf.
15. EU’s proposal for Investment Protection and Resolution of Investment Disputes of 12
November 2015 (TTIP). Retrieved from http://www.europarl.europa.eu/cmsdata/92123/
TTIP_investment.pdf.
16. The revised text of the CETA has been made public on 29 February 2016. Retrieved from
http://trade.ec.europa.eu/doclib/docs/2016/february/tradoc_154329.pdf.
17. EU-Vietnam Free Trade Agreement : Agreed text as of January 2016 (“EU-Vietnam FTA”),
published on 1 February 2016. Retrieved from http://trade.ec.europa.eu/doclib/press/index.
cfm?id=1437.

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