This is from what looks like a fairly recent (November 2013) leaked draft of the CETA text:
Article x-14: Claims Manifestly Without Legal Merit
1. The respondent may, either no later than 30 days after the constitution of a tribunal pursuant to Article x- (Constitution of Tribunal) and in any event before the first session of the Tribunal, EU [or 30 days after the respondent became aware of the facts on which the objection is based,] file an objection that a claim is manifestly without legal merit.
2. The respondent shall specify as precisely as possible the basis for the objection.
3. The Tribunal, after giving the disputing parties an opportunity to present their observations on the objection, shall, at its first session or promptly thereafter, issue a decision or award on the objection, stating the grounds therefor. In doing so, the Tribunal shall assume the alleged facts to be true, and may also consider any relevant facts not in dispute.
4. This procedure and any decision of the Tribunal shall be without prejudice to the right of a respondent to object, pursuant to article x-15 (Claims unfounded as a Matter law Law) or in the course of the proceeding, to the legal merits of a claim and without prejudice to a Tribunal's authority to address other objections as a preliminary question.
[Canada Note: The phrase “or 30 days after the respondent became aware of the facts on which the objection is based” does not work with paragraph 3 in that it is envisaged that a decision will be rendered only at or shortly after the first procedural meeting. In addition, since the Parties have agreed to include the companion Article x-15, it appears to be unnecessary. As such, we propose to remove it.]
[Note: EU to consider redrafting at paragraph 3 : “at its first session or promptly thereafter”]
I assume this is what the EU had in mind when it talked about addressing frivolous investor-state claims.
So, would this provision deal with the problem? How would it work in practice? Seems to me it will take a bit of litigation to develop these concepts and provide clarity about when claims are "manifestly without legal merit."
