CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ EUǧSINGAPORE INVESTMENT PROTECTION AGREEMENT IN THE LIGHT … in case of speculative investment acquisition, done for the purpose of acquiring access to Investment Court System, at the time when the dispute was foreseeable. Third party funding notification is obligatory. 31 The agreement sets up the Investment Court System (ICS) for resolving investment disputes, which replaced the ISDS. The agreement establishes a permanent Investment Tribunal of First Instance 32 and an Appeal Tribunal 33 . The two-tier system shall provide correctness and consistency of case law. Six Members shall be nominated for each tribunal and each tribunal will hear cases in panels of three members. As to the appointment, all members of the Tribunals will be appointed ex ante by the contracting parties (i.e. not ad hoc by the disputing parties). The cases will be allocated to arbitrators on random and unpredictable basis. The Appellate Tribunal will review decisions of the Tribunal under specific grounds of appeal (error of law, error of fact or other grounds under Article 52 of ICSID) 34 . In order to preserve the efficiency of the proceeding, final awards will not be subject to appeal, annulment, set aside or other proceeding 35 . The parties to the Investment Protection Agreement also committed to joining efforts with other interested parties for the creation of multilateral investment tribunal and appellate mechanism 36 . This is currently discussed at the UNCITRAL Working Group III sessions. 37 The Ethics 38 and the Code of Conduct 39 of tribunal members governs strict rules of independence, impartiality, and ethical behaviour, together with requirements for knowledge of public international law and qualifications for appointment to judicial offices or be jurists of recognised competence. Double hatting (acting as a counsel and arbitrator at the same time) is excluded, thus the conflict of interest is eliminated. There is an expeditious system for rejecting unfounded or frivolous claims. The agreement governs early dismissal of Claims Manifestly Without Legal Merit 40 and Claims Unfounded as a Matter of Law. 41 Transparency rules 42 allowing publication of documents, open hearings, third party submissions will apply to the proceedings. The amicable settlement is supported via provisions on mediation. 43 The article on awards secures the right to regulate is secured by limiting the award to monetary compensation of damages or restitution of property. The tribunal cannot repeal the measure challenged. 44 The compensation of damages shall cover only actual losses suffered and no

31 Article 3.8. For discussion on recent development see e.g. SVOBODA, Ondřej, KUNSTÝŘ, Jan. Third Party to Pick up the Bill? Costs Issues Relating to Third Party Funding in Investment Arbitration, Czech Yearbook of Public & Private International Law , Vol. 7, 2016.

32 Article 3.9. 33 Article 3.10. 34 Article 3.19, appeal procedure. 35 Article 3.22 Enforcement of awards. 36 Article 3.12.

37 UNCITRAL, Report of the United Nations Commission on International Trade Law (UNCITRAL) (50th Session) (3-21 July 2017) UN GAOR 71st Session Supp. No. 17 UN Doc A/71/17 (2017); Council of the European Union, Negotiating directives for a Convention establishing a multilateral court for the settlement of investment disputes, 12981/17, 20 March 2018. 38 Article 3.11. 39 Annex 7.

40 Article 3.14. 41 Article 3.15. 42 Article 3.16. 43 Article 3. 27, Annex 10. 44 Article 3.18.

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