CYIL vol. 10 (2019)

MIRIAMA KISELYOVA CYIL 10 ȍ2019Ȏ punitive damages shall be paid. Article on Costs 45 stipulates loser pays principle, which shall prevent speculative claims. A narrow definition of Applicable law 46 secures that EU law will not be interpreted by tribunals beyond the text of EU-Singapore IPA, even if the treaty itself will become part of EU law. EU law and domestic law shall be treated as a matter of fact. Moreover, EU and Singapore may adopt, via Committee binding interpretations 47 and to make submissions as non-disputing parties. 48 This secures correct interpretation of the Investment Protection Agreement. What one can consider to be missing from a dispute settlement mechanism is the institute of counterclaims. 49 This element may be introduced in the EU approach later as some EU Member States have already incorporated this instrument in their investment treaty policy. 50 Institutional, general and final provisions Chapter 4 governs Institutional, general and final provisions. The EU-Singapore Committee 51 has many competences, from general competences (proper application and implementation of the Investment Protection Agreement) to specific ones (appointment of Tribunal/Appeal Members, a decision on retainer fees, adoption of binding Investment Protection Agreement interpretations). Noteworthy is the power of the Committee to amend certain Investment Protection Agreement provisions. The final part of Investment Protection Agreement also governs several exceptions . (i) the prudential financial carve out confirms strong regulatory powers for ensuring the integrity and stability of the Party’s financial system, 52 (ii) security 53 exceptions (confidentiality of essential security information, actions taken for essential security interests), (iii) taxation 54 – Investment Protection Agreement in tax cases applies only in relation to National Treatment and Expropriation; the Investment Protection Agreement does not affect double taxation treaties, (iv) specific exceptions 55 – Investment Protection Agreement does not apply to activities conducted by a central bank or monetary authority in pursuit of monetary or exchange rate policies. EU excluded direct effect 56 of the Investment Protection Agreement with a provision clarifying that the Investment Protection Agreement does not confer rights or imposing obligations on persons, other than those created between the Parties under public international law. This means that the provisions of this treaty cannot be applied before a court. Under

45 Article 3.21. 46 Article 3.13. 47 Article 3.13 para 3 and Article 4.1 subparagraph 4(f). 48 Article 3.17.

49 GUS VAN HARTEN, The European Union s Emerging Approach to ISDS: a Review of the Canada-Europe CETA, EU Singapore FTA, and European-Vietnam FTA, University of Bologna Law Review , Vol. 1/2016, p. 147. 50 See e.g. Slovakia-Iran BIT or Dutch Model BIT.

51 Article 4.1. 52 Article 4.4 . 53 Article 4.5. 54 Article 4.6. 55 Article 4.7. 56 Article 4.11.

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