In this chapter, Eric De Brabandere zeroes in on the settlement of disputes in the context of investment arbitration. This chapter accepts that the case law of the current investor-State dispute settlement system is inconsistent and unpredictable and requires reform. However, this chapter claims that the problems associated with the dispute settlement system for investment arbitration cannot be isolated from broader questions on the coherence of general international law, the determinacy of legal norms, and the role of arbitral tribunals in the interpretation of these norms. The chapter argues that coherence is a matter of degrees and that a ‘middle ground’ might be to consider that international investment law forms part of international law, which is a coherent legal system from the perspective of the sources or the secondary norms of international law. Consistency, on the other hand, is not completely achievable in the current investment landscape, given its lack of uniformity in terms of substantive law and ad hoc method of dispute settlement. Consistency must be sought through different options, such as redrafting investment treaties to ensure better balance and predictability of outcomes.

The Investment Court System is the core feature of the EU international investment policy. In its Opinion 1/17 the CJEU confirmed the legality of the new ICS in CETA under EU law, providing important legal and policy implications for the future co-existence of EU law and international investment law. This chapter offers a critical assessment of the ICS, examined through the CJEU’s reasoning in Opinion 1/17. First, we discuss the nature of the ICS in relation to the EU judicial system. Second, we consider the effects of the ICS on the autonomy of the CJEU and the interpretation of EU law. Finally, we focus on the main features of the ICS in light of the rule-of-law criteria, as the core EU value. Where relevant, the CJEU’s Opinion is supplemented by remarks of late Advocate General Bot, which uncover a number of relevant political considerations. The design and functioning of the ICS thus provide important insights into the EU’s understanding of the rule of law in international investment law, which is ultimately envisaged to be implemented through a Multilateral Investment Court.

The influence of the EU and EU law on investment arbitration is one of the hotly debated topics in today’s arbitration world. Since the EU obtained the competence for the regulation of foreign (direct) investment on behalf of its Member States through the 2009 Lisbon Treaty, the European Commission’s efforts have brought about much change for both the EU’s internal and the EU’s external investment law relations. On the EU-internal level, the Commission – since 2018 backed by the European Court of Justice’s Achmea judgment and since early 2019 also by the EU Member States – has worked towards the elimination of investment arbitration. It seeks to have these disputes litigated before EU Member State courts instead. On the EU-external level, the Commission has successfully negotiated a new dispute settlement model in the EU’s free trade and investment agreements: an investment court system, the compatibility of which with EU law the Luxembourg court confirmed in 2019. This chapter seeks to set out these developments in a structured manner. It is necessarily incomplete, since the interaction between the Commission, investment tribunals, courts and other actors continues to develop – despite the fact that this interaction to a considerable degree remains determined by mutual ignorance.

This chapter explores the controversial topic of dispute settlement under international investment law, considering the much-maligned investor–state dispute settlement and its reforms, including the EU’s investment court system and alternative dispute settlement mechanisms.

The chapter first examines the nexus between the interdisciplinary theories of interregionalism and the latest wave of global regionalism. Based on EU agreements with Singapore and Vietnam, the chapter evaluates unique rules of origin for “ASEAN cumulation” and Asian food products. Comparative rules on services commitments and non-tariff measures that are vital to banking, automotive, pharmaceutical and renewable energy industries is also analyzed. Finally, the chapter explains key “new-generation” issues on geographical indications, state-owned enterprises, investor-state arbitration and mediation mechanisms under the IPA. Moreover, it explores the nexus between the FTA and the PCA and focus on human rights and sustainable development clauses that reflect European values. Collectively, these provisions construct the new phase of EU-Asian economic agreements and energize the evolution of new interregionalism.

This chapter analyses the alternative scenarios of how a multilateral investment court could come about, including an assessment of existing international frameworks that are likely to host that institution (e.g. the WTO, OECD, ICSID and UNCITRAL). The author argues that the EU’s active engagement in the field could fall victim to its own success – if it ever becomes successful, that is. If the proposed ICS turns out to be effective, efficient and accepted as more legitimate than investor-state arbitration, it might in fact inhibit the efforts of establishing a multilateral investment court. Alternatively, the increasing use of these instruments could result in a creeping multilateralization, creating a quasi-multilateral network of treaty-centred investment courts, a shrine to Western neoliberal values. A glimpse of hope, on the other hand, might come as a spin-off effect of current developments, should existing frameworks such as ICSID, UNCITRAL and the WTO rise to the occasion.