Procedural Multilateralism and Multilateral Investment Court: Discussion in Light of Increased Institutionalism in Transatlantic Relations

Abstract

Recent decades have witnessed the growing malaise of multilateralism within international economic governance and an inclination for bilateralism and tailor-made solutions. And yet procedural multilateralism does exist in international investment law. The chapter assesses the Mauritius Convention and a similar initiative, the OECD’s Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (BEPS), in order to draw inspiration for the EU’s multilateral investment court. The emphasis is on recent developments, in light of the EU’s 2017 public consultation on a multilateral reform of investment dispute resolution. It argues that while the UNCITRAL and OECD examples of ‘retroactively’ reforming thousands of existing treaties offer useful guidance, the establishment of a multilateral investment court would require two instruments —a convention regulating the relationship between IIAs and the court and a stand-alone convention (the statute) on the multilateral investment court —and only the first of these instruments can draw on the UNCITRAL and OECD precedents.