Todd Weiler is worried that the EU proposals for an investment court -- now in both the (yet-to-be-ratified) CETA and EU-Viet Nam FTA -- could lead to restrictive interpretations that make it too hard to win cases:
The changes could lead to a tribunal that is seldom used, warned Todd Weiler, a London, Ont., lawyer who has worked on numerous investor-state disputes. He said Canadian and European officials would probably be happy if the arbitration tribunal is never used because they don’t like a process they can’t easily control or predict.
Investor guarantees in the Canada-EU deal could be “rendered ineffectual” if the government-appointed arbitrators apply overly conservative interpretations, he said.
That could happen.
Or, what could also happen is that the members of the tribunal see themselves as a real court, whose purpose is to protect rights, due process, etc., and they decide to protect as much as they possibly can. People then start to use the court to assert rights so as to make public policy. Think about all the ways you could use a foreign investment to challenge public policies that you don't like.
I'm not sure what the Canadian, EU, and Vietnamese officials are hoping for in this regard. What kind of people will they appoint to the tribunals initially? And when they see what kind of decisions the early tribunals make, how will they adjust when making new appointments?
A lot of things about this new system (if it comes into effect) are difficult to predict. But I'm pretty confident that investment lawyers will figure out a way to make some money off it.