In order to analyse business relations between the EU and Japan in the view of the new Economic Partnership Agreement (EPA), which became effective on 1st February 2019, it is preliminarily necessary to understand how the common commercial policy represents a central and dynamic sector today. Firstly, its central position can be observed in economic and sociopolitical terms, both as an indispensable tool to implement its bilateral, regional or multilateral cooperation in an always evolving global economy, where the European Union is inclined to introduce itself as an unitary subject, and in order to promote the so-called “Non Trade Values” through the insertion of standards in environmental, working and social matters as essential elements of the new trade agreements. Secondly, the commercial policy is a dynamic field: it is connected to the realisation of the objectives of the internal market and, as it effectively has been observed, if the internal market was a building, the common commercial policy would be its façade. Thanks to a juridical analysis of the previous assertion, we can underline how the Court of Justice pointed out that the common commercial policy should be set within the logic of the internal market and, therefore, within the limits imposed by the agreements, which have to conciliate the interests of the respective member States so as to avoid that the institutional game proves to be distorted and that the European Union could not absolve the task of protecting and pursuing the common social-economic objectives. After this short introduction on the importance and the interconnection between the internal commercial dimension and the external one of the European Union, we will now analyse, in the short space of this article, an innovative aspect of the EPA with Japan. The negotiations of the agreement have started in March 2013 and it became part of the new generation agreements category, which have the aim, besides the realisation of the widest degree possible of liberalisation of trade in goods and services, of regulating the access to tenders, investments as well as to commercial aspects of the intellectual property and the protection of the “Non Trade Values”. Then, the agreement discloses particular attention to the investments field, to which has been dedicated the rubricated Chapter eight “trade in services, liberalisation of investments and electronic trade”. The EPA imagines a new system for the protection and promotion of investments aimed at overcoming the previous applied mechanism called Investor-State Dispute Settlement (ISDS). The copious critical issues of the ISDS system, especially the lack of transparency which is typical of an essentially arbitral system, brought the commission to state the “death” of the prospect of the ISDS mechanism integration in the future agreement during the negotiations. Instead of it, an alternative system called Investment Court System (ICS) has been established. However, this system has already been included in other new generation agreements as the CETA which tries to overcome, with alternate results, some of the limits of the previous system. It envisages a permanent court composed of a court of first instance and of an appeal court which is inspired by the courts of international arbitration as the International Chamber of Commerce or the London Court of International Arbitration. Moreover, it provides professional and independent judges appointed to long-lasting roles aimed at guaranteeing independence and impartiality of judgement. It is obvious how the intention at the base of the ICS represents an important progress in the construction of fair, transparent and virtuous principles and international standards based decision system. In conclusion, the agreement has a double strategic value for the European Union: on one hand, it offers a counterbalance for the possible effects of commercial distortion, a product of the Trans-Pacific Partnership Agreement; on the other hand, it reinforces the position of the European Union among the participants which direct the global governance of worldwide trade. Assuming that the agreement offers undeniable advantages to the contracting party, it remains to be seen how these will proceed with the implementation of the EPA in the dynamic future of relations between the European Union and Japan.
Translated by Lucica Oana Maris