CYIL vol. 10 (2019)

MIRIAMA KISELYOVA CYIL 10 ȍ2019Ȏ briefly describes the negotiating process, content, and architecture of the EU-Singapore IPA then analyses the Opinion 1/17 and particular requirements to compatibility with EU law as set by the CJEU. Finally, it concludes by the application of Opinion 1/17 on the EU- Singapore IPA to assess its compatibility in light of the new CJEU jurisprudence. The path to the conclusion of the first standalone EU Investment Protection Agreement was long and it required several negotiating mandates. On 23 April 2007, the Council authorised the Commission to negotiate an FTA (FTA) with Member States of the ASEAN. That authorisation provided for the possibility of bilateral negotiations. On 22 December 2009, the Council authorised the Commission to pursue bilateral FTA negotiations with the individual ASEAN Member States, starting with Singapore, which was to be conducted in accordance with the existing negotiating directives. The EU-Singapore negotiations were launched in 2010. The negotiating directives were modified in July 2011, to authorise the Commission to open negotiations on investment protection provisions within the FTA with Singapore. Following the conclusion of talks on investment protection, negotiations were completed in October 2014, with other parts of the FTA having already been initialled in September 2013. 1 The negotiation of the FTA with an investment chapter was finalized in 2014. In the meantime, the European Union started the Transatlantic Trade and Investment Partnership (TTIP) negotiations with the United States. The intention to negotiate an agreement with the United States was met with significant reactions from the public. 2 Protests took place in several EU Member States. The civil society, in particular, non-governmental organizations expressed their concerns about investor to state dispute settlement system (ISDS) as such. Lack of arbitrators’ independence/impartiality, transparency and predictability was challenged, among others. 3 As a reaction to these protests, the EU introduced a new investment policy concept, which has included the Investment Court System (the “ICS”). Although the ICS was created in relation to TTIP, the EU has eventually proposed it in the negotiation of all of the trade and investment agreements. 4 Nevertheless, the negotiations with Singapore were already completed and the text was already after legal scrubbing by lawyers linguists. Hence, the adopted text was informally opened and the ISDS was replaced by ICS in very later stage. 5 1 Information from the COUNCIL DECISION on the signing, on behalf of the European Union, of the Investment Protection Agreement between the European Union and its Member States, of the one part, and the Republic of Singapore, of the other part. 2 Online public consultation on investment protection and investor-to-state dispute settlement (ISDS) in the Transatlantic Trade and Investment Partnership Agreement (TTIP). SWD(2015) 3 final, 13.1.2015. 3 However, these protests were not limited to objections against ISDS. In the case of trade negotiations with the United States, the public was also concerned about lowering of standards e.g. in relation to food safety, environment protection, labor rights, etc. The TTIP negotiations were commenced in 2013 and terminated at the end of 2016. TTIP was not concluded. New negotiations with the US will commence in 2019 in a limited scope – just for the elimination of tariffs for industrial goods and for conformity assessment. The Council of the EU approved two mandates on 15 April 2019. 4 See e.g., SARDINHA, Elsa. The New EU-Led Approach to Investor-State Arbitration: The Investment Tribunal System in the Comprehensive Economic Trade Agreement (CETA) and the EU–Vietnam FTA, ICSID Review , Vol. 32, No. 3 (2017). 5 ICS was also included in CETA with Canada as well, during the legal scrubbing. CETA was signed in October 2016, during the SK Presidency of the EU. 2. From ASEAN FTA to Singapore Investment Protection Agreement – A long journey

384