Investor-State Dispute Settlement (ISDS) mechanisms have been globally criticised as out-dated and inappropriate fora for the settlement of disputes involving States. Attempted reform is underway at the United Nations Commission on International Trade Law (UNCITRAL) Working Group III, at which the EU is a key player. The role of the EU as a significant moderniser of trade agreements will have implications for the UK in negotiating any future trade deals with the EU. For example, the consequences of the recent Opinion 1/17 on the legality of a new form of court system to handle investor-state disputes in the EU-Canada Agreement (CETA) are significant in analysing how the CJEU was persuaded to reach the conclusion that new judicial fora in international Treaties may be compatible with EU law. The litigation around the modern trade agreements of the EU is a warning signal that conducting trade agreements from scratch with the EU is not painless, with ratification potentially being very prolonged when there are challenges to the agreement at the national and EU level.

Read Briefing Paper 30 – Opinion 1/17: Towards A Modern EU Approach to Investor-State Dispute Settlement