The Council of European Union adopted a key decision on the position to be taken on behalf of the European Union in the Committee on Services and Investment established under the Comprehensive Economic and Trade Agreement (CETA)
On 25 May entered into force the Council Decision (EU) 2020/681 on the position to be taken on behalf of the European Union in the Committee on Services and Investment established under the Comprehensive Economic and Trade Agreement (CETA) between Canada, of the one part, and the European Union and its Member States, of the other part, as regards the adoption of rules for mediation for use by disputing parties in investment disputes, which sends to the draft decision of the Committee on Services and Investment ST 6967/20.
Whereas at the moment the ST 6967/20 decision is just in a draft form, its final implementation occurring on the date of entry into force of Section F of Chapter Eight (Investment) of the Agreement, subject to the Parties’ exchange of written notifications, through diplomatic channels, we consider that is utterly important to analyze its content, as it is, especially now that the Council Decision sends to its texts.
The Draft Decision Of The Committee On Services And Investment 6967/20 presents rules for mediation for use by disputing parties of the Agreement. As established in art. 2 of the draft document, the objective of the mediation mechanism is to facilitate the finding of a mutually agreed solution through a comprehensive and expeditious procedure with the assistance of a mediator.
Hence, some of the rules comprised in the draft decision and representing the position that the European Union shall take regarding investment litigations related to the Comprehensive Economic and Trade Agreement (CETA), are the following:
- Either disputing party may request, at any time, the commencement of a mediation procedure. Such request shall be addressed to the other disputing party in writing;
- If the request concerns an alleged breach of the Agreement by the authorities of the European Union or by the authorities of the Member States of the European Union, and no respondent has been determined, it shall be addressed to the European Union;
- The disputing party to which the request is addressed shall give sympathetic consideration to the request and accept or reject it in writing within 10 days of its receipt.
- If the disputing parties agree to a mediation procedure, they shall sign an agreement to mediate, in writing, setting out rules agreed to by the disputing parties, which shall include the rules expressed in the final form of the Decision;
- If both disputing parties agree to a mediation procedure, a mediator shall be appointed.
- A mediator shall not be a national of either Party, unless the disputing parties agree otherwise.
- Within 10 days from the appointment of the mediator, the disputing party having invoked the mediation procedure shall present, in writing, a detailed description of the problem to the mediator and to the other disputing party.
- Within 20 days from the receipt of this submission, the other disputing party may provide, in writing, its comments to the description of the problem. Either disputing party may include in its description or comments any information that it deems relevant.
- The procedure shall take place in the territory of the Party that is a disputing Party, or by mutual agreement in any other location or by any other means.
- The disputing parties shall endeavour to reach a mutually agreed solution within 60 days from the appointment of the mediator. Pending a final agreement, the disputing parties may consider possible interim solutions.
- If a mutually agreed solution is adopted, each disputing party shall take the measures necessary to implement the mutually agreed solution within the agreed timeframe.
- A disputing party shall not rely on or introduce as evidence in other dispute settlement procedures:
- positions taken, admissions made or views expressed in the course of the mediation procedure;
- the fact that a disputing party has indicated its willingness to accept a solution to the problems or disputes that are subject to the mediation procedure;
- given advice, proposals made or views expressed by the mediator; or
- the content of a draft or final factual report by a mediator.
As said in the beginning, this is solely the position expressed by the European Union to be discussed and proposed in the Committee on Services and Investment established under CETA. The final form of the Decision on the rules for mediation for use by disputing parties in investment disputes shall be published and enter into force after negotiations and agreements reached with the other parties involved in CETA.