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Joanna Jemielniak

The concept of establishing a permanent adjudicatory body for investor-state disputes has become very close to political fulfilment. The European Commission has endorsed introduction of a permanent, court-like mechanism for investment disputes in several Free Trade Agreements (FTAs). A two-tier Investment Court System (ICS) has been accepted in the European Union’s (EU) FTA with Vietnam and in the Comprehensive Economic and Trade Agreement between Canada and the EU. This widely publicized EU ICS project has been presented as a court, to be further promoted in forthcoming EU FTA negotiations, and multilateralized in the future. It has also been introduced to the general public in opposition to the existing ISDS regime and as an original response to its shortcomings. This chapter examines, to what extent such a characterization of the ICS is justified. For this purpose, historical context of investor-state dispute resolution is explored. In particular, former proposals of establishment of a permanent adjudicatory body in this area are examined. Against this background, public discourse on ICS is analysed in order to present the goals of the project and its aimed directions of development.