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ดุลพาห

and the proposed TTIP contain references to the establishment of a permanent
multilateral investment court (“MIC”) to replace bilateral investment courts.
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2. FRAMEWORK OF THE ICS

A. INTRODUCTION

The following section will detail the EU’s reform proposals
encompassed in the framework of the ICS, drawing from the relevant

provisions of the CETA, the EU-Vietnam FTA and the TTIP. Irrespective of their
policy merits, the ICS is an overhaul of the existing ISDS system by dismantling

a system where host States and private parties can choose arbitrators for
each particular dispute.

The EU’s introduction of the ICS, first in its TTIP proposal text and
then in the finalized texts of the CETA and the EU-Vietnam FTA, presents a

court-like dispute settlement system. Indeed, by calling it a “court”, the EU
made it clear that the new system would incorporate key features of domestic

and international courts with standing permanent tribunals composed of
appointed judges and an appellate system. The exception to the court notion

is the new system would still incorporate existing arbitration rules such as the
ICSID Rules of Procedure for Arbitration Proceedings, the ICSID Additional

Facility Rules, and the United Nations Commission on International Trade Law
(“UNCITRAL”) Arbitration Rules. The UNCITRAL Transparency Rules will apply

39
to all disputes due to the perceived lack of transparency in investment
arbitration.

The new ICS marks a significant departure from the current system

38. Article 8.29 of the CETA; Article 15 of the EU-Vietnam FTA; Section 3, Article 12 of
the TTIP.
39. Article 8.36(1) of the CETA; Article 20(1) of the EU-Vietnam FTA; Article 18(1) of
the TTIP.

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