CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ EUǧSINGAPORE INVESTMENT PROTECTION AGREEMENT IN THE LIGHT … Chapter Eight of the CETA), the Court firstly (i) could not, under proper application of law, imagine such situation and (ii) even if arguendo , such situation will occur, the investor may ask for annulment of such fine. 77 The annulment of the fine does not affect the effectiveness of EU competition law 78 . Right of access to an independent tribunal In this part, Belgium expressed concerns about the accessibility of ICS to small and medium enterprises (SMEs) and independence of tribunal members. The Court confirmed that article 47 of the Charter does apply to the situation at hand, even if not on Canada and even if the ISDS is of hybrid nature. The Court referred to innovative features of ISDS in CETA 79 : permanent tribunals (both first instance and appeal) and random allocation of cases and concluded that notwithstanding the designation, the tribunals will obviously perform judicial functions. As to the content of term independence, the Court distinguished two aspects (i) external independence – the autonomy of decision making, boosted by permanent status and remuneration of tribunal members and (ii) internal impartiality – towards the disputing parties. 80 The accessibility is mainly related to costs (of legal representation and of proceedings). As to the accessibility for small and medium enterprises, the Court has considered the obligation of the joint committee to adopt rules to improve access to most vulnerable ones – SMEs and individuals as a sufficient guarantee of accessibility. This adoption of new rules is stated in the provision on Final award 81 in CETA as an option and in Statement 36 82 as an obligation, the Court considered them, together with the exclusion of preliminary application, as sufficient guarantee for compliance with Article 47 of the Charter. As to the independence, the Court stated that the fact that both appointment and removal of the Members of the tribunal is done by the Joint Committee consisting of representatives of both Contracting Parties is not in contradiction with principles in the para 202 above. 83 Further, the fact that the retainer fee is combined with per diem payment, as well as the fact that these may turn into regular salary in the future only does not affect independence 84 . Nor can the binding interpretations to be adopted by the Joint Committee be considered as a threat to independence, as these are common, have a legal basis in Article 31(3) VCLT and in compliance with Article 218(9) TFEU shall be compliant with primary EU law. However, the Court expressed its concerns regarding the retroactive effect. 85 As to the internal aspect – impartiality, here the Court referred to allocation of cases by random ballot and 77 Opinion 1/17, para 184-186. 78 Opinion 1/17, para 187-188. 79 It is important to note that, while the Court still operates with the original term ISDS, it is, in fact, the Investment Court system – ICS. 80 Opinion 1/17, para 202-204. 81 Article 8.39.6 CETA. 82 Statement by the Commission and the Council on investment protection and the Investment Court System. The Comprehensive Economic and Trade Agreement (CETA) between Canada, of the one part, and the European Union and its Member States, of the other part – Statements to the Council minutes. 27 October 2016. 13463/1/16 REV 1.

83 Opinion 1/17para 227. 84 Opinion 1/17, para 229. 85 Opinion 1/17, para 237.

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