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ดุลพาห

The text of the EU-Vietnam FTA studied in this thesis is the version of January
2016 but the agreement will undergo legal review and then sent for approval

to the European Council and the European Parliament.

While the ICS framework remains similar procedurally to arbitration

procedure, the ICS departs substantially from the arbitration model. The ICS

is made up of a two-tier court : a tribunal and an appellate body. Unlike
arbitration, the parties will not be able to choose their tribunal members.
These members will be selected on a rotational basis from a group of sitting

permanent judges. Judges will receive a retainer fee that may be turned into

a salary if their workload justifies the fees. The CETA uses the ICSID as an
administrative agency for case management.

B. BACKGROUND TO THE INVESTMENT COURT PROPOSAL

(1) Concept Proposal Resulting from Opposition to ISDS

In 2014, the European Commission organized an open consultation

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process which focused on questions related to the EU’s proposed approach
to investment protection and investor-state dispute resolution in the TTIP. The

TTIP had been in negotiations between the United States and the EU since
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July 2013. In 2014, the EU had concluded negotiations which began in 2009
of the first two FTAs that include investment protection and ISDS with Canada,
the CETA, and Singapore (“EU Singapore FTA”). These agreements introduced

a new approach both in terms of substance (investment protection rules) and
procedure (ISDS mechanism) including the right to regulate, prevention of forum

18. See Online public consultation on investment protection and investor-to-state dispute settlement
(ISDS) in the Transatlantic Trade and Investment Partnership Agreement (TTIP) completed
on 13/7/2014. Retrieved from http://trade.ec.europa.eu/consultations/index.cfm?consul_id=179.
19. First Round of Transatlantic Trade and Investment Partnership Negotiations Starts, European
Commission News Archive, 8 July 2013. Retrieved from http://trade.ec.europa.eu/doclib/
press/index.cfm?id=936.

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