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Respondent details

  • Company/Organisation: Copyratul Roman
  • Location: Romania
  • Activity: internet,IT,copyright,patent
  • Profile: Non-governmental organisation
  • Transparency register: Yes
  • Prior investment in the US: No

Contribution

A. Substantive investment protection provisions

Explanation of the issue

The scope of the agreement responds to a key question: What type of investments and investors should be protected? Our response is that investment protection should apply to those investments and to investors that have made an investment in accordance with the laws of the country where they have invested.

Approach in most investment agreements

Many international investment agreements have broad provisions defining “investor” and “investment”.

In most cases, the definition of “investment” is intentionally broad, as investment is generally a complex operation that may involve a wide range of assets, such as land, buildings, machinery, equipment, intellectual property rights, contracts, licences, shares, bonds, and various financial instruments. At the same time, most bilateral investment agreements refer to “investments made in accordance with applicable law”. This reference has worked well and has allowed ISDS tribunals to refuse to grant investment protection to investors who have not respected the law of the host state when making the investment (for example, by structuring the investment in such a way as to circumvent clear prohibitions in the law of the host state, or by procuring an investment fraudulently or through bribery).

In many investment agreements, the definition of “investor” simply refers to natural and juridical persons of the other Party to the agreement, without further refinement. This has allowed in some cases so–called “shell” or “mailbox” companies, owned or controlled by nationals or companies not intended to be protected by the agreement and having no real business activities in the country concerned, to make use of an investment agreement to launch claims before an ISDS tribunal.

The EU's objectives and approach

The EU wants to avoid abuse. This is achieved primarily by improving the definition of “investor”, thus eliminating so –called “shell” or “mailbox” companies owned by nationals of third countries from the scope: in order to qualify as a legitimate investor of a Party, a juridical person must have substantial business activities in the territory of that Party.

At the same time, the EU wants to rely on past treaty practice with a proven track record. The reference to “investments made in accordance with the applicable law” is one such example. Another is the clarification that protection is only granted in situations where investors have already committed substantial resources in the host state - and not when they are simply at the stage where they are planning to do so.

Link to reference text

Taking into account the above explanation and the text provided in annex as a reference, what is your opinion of the objectives and approach taken in relation to the scope of the substantive investment protection provisions in TTIP?

Investment protection provisions have been misleadingly promoted by some governments as an instrument to stimulate investment flows from industrialised countries. Their effectiveness has been highly questioned. The strong economic interdependence between the EU and US economies clearly show that there has been no need for an investment promotion policy like TTIP. EU and US laws are already fair and adequate. Therefore, we also have no need for a dispute settlement mechanism, especially as the private arbitration system is currently out of control. --- I fundamentally oppose the investment protection provisions in the TTIP because: - The national legislation of EU Member States and the US already ensure investment protection for their citizens and companies, and thus also for foreign companies. The EU and US have well-developed rules of law and legal cultures, right of ownership, equal treatment, and fair and adequate national laws are core concepts within their legal systems. Investment protection provisions would also mean that foreign investors are in a better position than domestic investors. I am opposed to the proposed scope of the investment protection provisions in the TTIP: - Sustainable foreign direct investments, or the investors themselves, are not clearly differentiated from other forms of investment like speculative investments, by a clear and narrow definition. It would still be possible to make abusive and unwarranted claims. - There is no attempt to balance the rights and the obligations of investors - The revised language on investment provisions leaves it up to three unaccountable for-profit arbitrators to determine how these definitions apply, without the possibility to appeal their verdict.

Explanation of the issue

Under the standards of non-discriminatory treatment of investors, a state Party to the agreement commits itself to treat foreign investors from the other Party in the same way in which it treats its own investors (national treatment), as well in the same way in which it treats investors from other countries (most-favoured nation treatment). This ensures a level playing field between foreign investors and local investors or investors from other countries. For instance, if a certain chemical substance were to be proven to be toxic to health, and the state took a decision that it should be prohibited, the state should not impose this prohibition only on foreign companies, while allowing domestic ones to continue to produce and sell that substance.

Non-discrimination obligations may apply after the foreign investor has made the investment in accordance with the applicable law (post-establishment), but they may also apply to the conditions of access of that investor to the market of the host country (pre-establishment).  

Approach in most existing investment agreements

The standards of national treatment and most-favoured nation (MFN) treatment are considered to be key provisions of investment agreements and therefore they have been consistently included in such agreements, although with some variation in substance.

Regarding national treatment, many investment agreements do not allow states to discriminate between a domestic and a foreign investor once the latter is already established in a Party’s territory. Other agreements, however, allow such discrimination to take place in a limited number of sectors.

Regarding MFN, most investment agreements do not clarify whether foreign investors are entitled to take advantage of procedural or substantive provisions contained in other past or future agreements concluded by the host country. Thus, investors may be able to claim that they are entitled to benefit from any provision of another agreement that they consider to be more favourable, which may even permit the application of an entirely new standard of protection that was not found in the original agreement. In practice, this is commonly referred to as "importation of standards".

The EU’s objectives and approach

The EU considers that, as a matter of principle, established investors should not be discriminated against after they have established in the territory of the host country, while at the same recognises that in certain rare cases and in some very specific sectors, discrimination against already established investors may need to be envisaged. The situation is different with regard to the right of establishment, where the Parties may choose whether or not to open certain markets or sectors, as they see fit.

On the "importation of standards" issue, the EU seeks to clarify that MFN does not allow procedural or substantive provisions to be imported from other agreements.

The EU also includes exceptions allowing the Parties to take measures relating to the protection of health, the environment, consumers, etc. Additional carve-outs would apply to the audio-visual sector and the granting of subsidies. These are typically included in EU FTAs and also apply to the non-discrimination obligations relating to investment. Such exceptions allow differences in treatment between investors and investments where necessary to achieve public policy objectives.

Link to reference text

Taking into account the above explanations and the text provided in annex as a reference, what is your opinion of the EU approach to non –discrimination in relation to the TTIP? Please explain.

Including investment protection provisions in the TTIP equals to introducing a discriminatory treatment in favour of foreign investors, where it is left up to three unaccountable for-profit arbitrators to interpret what constitutes discrimination. This is absolutely not necessary because the national legal systems of the parties to the TTIP agreement are based on equal treatment and non-discrimination. Furthermore the positive discrimination of foreign investors would destroy the equal competition that currently exists for domestic and foreign investors and there would be no legal certainty for regulatory exceptions, for example in areas such as aid or public procurement. --- I oppose the Commission's proposal in relation to the most-favoured nation and oppose its inclusion in the treaty because: The current formulation proposed by the Commission does not preclude the "importation of standards" from other procedural and substantive provisions of other existing bilateral investment protection agreements. Therefore the text does not prevent investors from using ISDS to cherry-pick provisions from other investment treaties that are more favourable to their case, and it fails to achieve the objective of providing greater legal certainty, all the contrary. Therefore all efforts of reform by the European Commission in terms of achieving greater legal certainty by clarifying definitions and more precise standards are rendered worthless.

Explanation of the issue

The obligation to grant foreign investors fair and equitable treatment (FET) is one of the key investment protection standards. It ensures that investors and investments are protected against treatment by the host country which, even if not expropriatory or discriminatory, is still unacceptable because it is arbitrary, unfair, abusive, etc. 

Approach in most investment agreements

The FET standard is present in most international investment agreements. However, in many cases the standard is not defined, and it is usually not limited or clarified. Inevitably, this has given arbitral tribunals significant room for interpretation, and the interpretations adopted by arbitral tribunals have varied from very narrow to very broad, leading to much controversy about the precise meaning of the standard. This lack of clarity has fueled a large number of ISDS claims by investors, some of which have raised concern with regard to the states' right to regulate. In particular, in some cases, the standard has been understood to encompass the protection of the legitimate expectations of investors in a very broad way, including the expectation of a stable general legislative framework.

Certain investment agreements have narrowed down the content of the FET standard by linking it to concepts that are considered to be part of customary international law, such as the minimum standard of treatment that countries must respect in relation to the treatment accorded to foreigners. However, this has also resulted in a wide range of differing arbitral tribunal decisions on what is or is not covered by customary international law, and has not brought the desired greater clarity to the definition of the standard. An issue sometimes linked to the FET standard is the respect by the host country of its legal obligations towards the foreign investors and their investments (sometimes referred to as an "umbrella clause"), e.g. when the host country has entered into a contract with the foreign investor. Investment agreements may have specific provisions to this effect, which have sometimes been interpreted broadly as implying that every breach of e.g. a contractual obligation could constitute a breach of the investment agreement.

EU objectives and approach

The main objective of the EU is to clarify the standard, in particular by incorporating key lessons learned from case-law. This would eliminate uncertainty for both states and investors.

Under this approach, a state could be held responsible for a breach of the fair and equitable treatment obligation only for breaches of a limited set of basic rights, namely: the denial of justice; the disregard of the fundamental principles of due process; manifest arbitrariness; targeted discrimination based on gender, race or religious belief; and abusive treatment, such as coercion, duress or harassment. This list may be extended only where the Parties (the EU and the US) specifically agree to add such elements to the content of the standard, for instance where there is evidence that new elements of the standard have emerged from international law.

The “legitimate expectations” of the investor may be taken into account in the interpretation of the standard. However, this is possible only where clear, specific representations have been made by a Party to the agreement in order to convince the investor to make or maintain the investment and upon which the investor relied, and that were subsequently not respected by that Party. The intention is to make it clear that an investor cannot legitimately expect that the general regulatory and legal regime will not change. Thus the EU intends to ensure that the standard is not understood to be a “stabilisation obligation”, in other words a guarantee that the legislation of the host state will not change in a way that might negatively affect investors. In line with the general objective of clarifying the content of the standard, the EU shall also strive, where necessary, to provide protection to foreign investors in situations in which the host state uses its sovereign powers to avoid contractual obligations towards foreign investors or their investments, without however covering ordinary contractual breaches like the non-payment of an invoice.

Link to reference text

Taking into account the above explanation and the text provided in annex as a reference, what is your opinion of the approach to fair and equitable treatment of investors and their investments in relation to the TTIP?

The fair and equitable treatment (FET) provision is one of the most dangerous features in investment protection provisions- and one of the reasons for the demand to drop Investor - state dispute settlement as a whole. FET has been the most relied on clause in investor - state dispute settlement cases, and it has been dangerously abused as a gateway for dubious claims against regulations and procedures that were established democratically in the public interest - as recognised by the European Commission itself. --- I oppose the inclusion of the "fair and equitable treatment" clause in the TTIP because: - Foreign investors and their fundamental rights are adequately protected from arbitrary, unjust, offensive or otherwise unacceptable treatment in the current European and US legal systems - in the same way as domestic investors are. With the “fair and equitable treatment” (FET) clause, the states effectively take on a so-called "stabilisation commitment" with regard to investors, namely not to take any measures to their economic disadvantage if they do not want to be sued. - The Commission statement that the proposed text on FET is closed is highly questionable because the proposed text combines a closed list with open ended and vague formulations. This leaves it up to arbitrators to interpret what constitutes FET – or what indicates a breach – and opens the way for investor rights to limit the governments’ right to regulate in the public interest. - Finally, the text foresees that the “Parties shall regularly, or upon request of a Party, review the content of the obligation to provide fair and equitable treatment”; which means that the definition might be expanded in the future. Therefore this creates uncertainty, while leaving it unclear what the process for such an expansion would be.

Explanation of the issue

The right to property is a human right, enshrined in the European Convention of Human Rights, in the European Charter of Fundamental Rights as well as in the legal tradition of EU Member States. This right is crucial to investors and investments. Indeed, the greatest risk that investors may incur in a foreign country is the risk of having their investment expropriated without compensation. This is why the guarantees against expropriation are placed at the core of any international investment agreement.

Direct expropriations, which entail the outright seizure of a property right, do not occur often nowadays and usually do not generate controversy in arbitral practice. However, arbitral tribunals are confronted with a much more difficult task when it comes to assessing whether a regulatory measure of a state, which does not entail the direct transfer of the property right, might be considered equivalent to expropriation (indirect expropriation).

Approach in most investment agreements

In investment agreements, expropriations are permitted if they are for a public purpose, non-discriminatory, resulting from the due process of law and are accompanied by prompt and effective compensation. This applies to both direct expropriation (such as nationalisation) and indirect expropriation (a measure having an effect equivalent to expropriation).

Indirect expropriation has been a source of concern in certain cases where regulatory measures taken for legitimate purposes have been subject to investor claims for compensation, on the grounds that such measures were equivalent to expropriation because of their significant negative impact on investment. Most investment agreements do not provide details or guidance in this respect, which has inevitably left arbitral tribunals with significant room for interpretation.

The EU's objectives and approach

The objective of the EU is to clarify the provisions on expropriation and to provide interpretative guidance with regard to indirect expropriation in order to avoid claims against legitimate public policy measures.  The EU wants to make it clear that non-discriminatory measures taken for legitimate public purposes, such as to protect health or the environment, cannot be considered equivalent to an expropriation, unless they are manifestly excessive in light of their purpose. The EU also wants to clarify that the simple fact that a measure has an impact on the economic value of the investment does not justify a claim that an indirect expropriation has occurred.

Link to reference text

Taking into account the above explanation and the text provided in annex as a reference, what is your opinion of the approach to dealing with expropriation in relation to the TTIP? Please explain.

Privileged expropriation provisions allow arbitrators to interpret and decide on which measures taken by a sovereign state constitute a breach of a contract obligation according to the agreement. This is unacceptable and it makes it possible for investors to challenge a wide range of regulatory measures in the public interest (including and not limited to: provisions for workers, health, and the environment, which could all be regarded as indirect expropriation). Furthermore, an obligation to pay compensation for "indirect expropriation" significantly limits the freedom and rights of citizens and parliaments, resulting in disproportionately large sums of tax-payers' money having to be paid out in compensation. --- I oppose special rights for foreign investors in relation to expropriation and indirect expropriation in TTIP because: - The European and the American legal systems provide for compensation payments in the event of direct and, under certain circumstances, indirect expropriation, whereby domestic and foreign investors or citizens have been affected by unequal treatment. Leaving public policy choices to the test of private arbitrators is imprudent. According to the reference text provided by the European Commission, states will be put under pressure to comply with a necessity test undertaken by the arbitrators. Arbitrators are left with excessive leverage to interpret the provisions of the agreement to decide on: - Which measure is or is not for “public purpose”, dangerously taking over the role of a state to apply its right to regulate; - What is “manifestly excessive” or whether a measure serves the protection of legitimate public welfare objectives such as health, safety and the environment.

Explanation of the issue

In democratic societies, the right to regulate of states is subject to principles and rules contained in both domestic legislation and in international law. For instance, in the European Convention on Human Rights, the Contracting States commit themselves to guarantee a number of civil and political rights. In the EU, the Constitutions of the Member States, as well as EU law, ensure that the actions of the state cannot go against fundamental rights of the citizens. Hence, public regulation must be based on a legitimate purpose and be necessary in a democratic society.

Investment agreements reflect this perspective. Nevertheless, wherever such agreements contain provisions that appear to be very broad or ambiguous, there is always a risk that the arbitral tribunals interpret them in a manner which may be perceived as a threat to the state's right to regulate. In the end, the decisions of arbitral tribunals are only as good as the provisions that they have to interpret and apply.

 Approach in most investment agreements

Most agreements that are focused on investment protection are silent about how public policy issues, such as public health, environmental protection, consumer protection or prudential regulation, might interact with investment. Consequently, the relationship between the protection of investments and the right to regulate in such areas, as envisaged by the contracting Parties to such agreements is not clear and this creates uncertainty.

In more recent agreements, however, this concern is increasingly addressed through, on the one hand, clarification of the key investment protection provisions that have proved to be controversial in the past and, on the other hand, carefully drafted exceptions to certain commitments. In complex agreements such as free trade agreements with provisions on investment, or regional integration agreements, the inclusion of such safeguards is the usual practice.

The EU's objectives and approach

The objective of the EU is to achieve a solid balance between the protection of investors and the Parties' right to regulate.

First of all, the EU wants to make sure that the Parties' right to regulate is confirmed as a basic underlying principle. This is important, as arbitral tribunals will have to take this principle into account when assessing any dispute settlement case.

Secondly, the EU will introduce clear and innovative provisions with regard to investment protection standards that have raised concern in the past (for instance, the standard of fair and equitable treatment is defined based on a closed list of basic rights; the annex on expropriation clarifies that non-discriminatory measures for legitimate public policy objectives do not constitute indirect expropriation). These improvements will ensure that investment protection standards cannot be interpreted by arbitral tribunals in a way that is detrimental to the right to regulate.

Third, the EU will ensure that all the necessary safeguards and exceptions are in place. For instance, foreign investors should be able to establish in the EU only under the terms and conditions defined by the EU. A list of horizontal exceptions will apply to non-discrimination obligations, in relation to measures such as those taken in the field of environmental protection, consumer protection or health (see question 2 for details). Additional carve-outs would apply to the audiovisual sector and the granting of subsidies. Decisions on competition matters will not be subject to investor-to-state dispute settlement (ISDS). Furthermore, in line with other EU agreements, nothing in the agreement would prevent a Party from taking measures for prudential reasons, including measures for the protection of depositors or measures to ensure the integrity and stability of its financial system. In addition, EU agreements contain general exceptions applying in situations of crisis, such as in circumstances of serious difficulties for the operation of the exchange rate policy or monetary policy, balance of payments or external financial difficulties, or threat thereof.

In terms of the procedural aspects relating to ISDS, the objective of the EU is to build a system capable of adapting to the states' right to regulate. Wherever greater clarity and precision proves necessary in order to protect the right to regulate, the Parties will have the possibility to adopt interpretations of the investment protection provisions which will be binding on arbitral tribunals.  This will allow the Parties to oversee how the agreement is interpreted in practice and, where necessary, to influence the interpretation.

The procedural improvements proposed by the EU will also make it clear that an arbitral tribunal will not be able to order the repeal of a measure, but only compensation for the investor.

Furthermore, frivolous claims will be prevented and investors who bring claims unsuccessfully will pay the costs of the government concerned (see question 9).

Link to reference text

Taking into account the above explanation and the text provided in annex as a reference, what is your opinion with regard to the way the right to regulate is dealt with in the EU's approach to TTIP?

Investor – state dispute settlement allows private investors who are not parties to the agreement to test the legitimacy of public regulations by democratically elected governments through private arbitration. The sheer mention of the right to regulate in the investor – state dispute settlement chapter of TTIP is not enough to safeguard it, and even less to deter companies from launching expensive lawsuits against states. Interpretation of what is in line with the state’s right to regulate will be relying on for-profit arbitrators, which is unacceptable. --- I fundamentally oppose the fact that investment protection is placed above the sovereign right to regulate because: - Rules emerging from a democratic voting process (democratic and parliamentary decision-making process), which reflect the public interest and the will of millions of people, must always be weighted more heavily than private sector vested interests. - Fundamental social rights and human rights must not be limited by economic freedoms. In particular, I reject the draft proposals because: - The text only mentions the right to regulate in the preamble, and is not binding. The basic constitutional order and the freedom of the legislator are limited, which significantly limits the intervention potential of governments to respond appropriately to future socio-political challenges. - The formulation of the exceptions lacks clarity to ascertain that states will be exempt of paying monetary compensation, even in the case where the existence of exceptions would avoid that they have to repeal a measure. The public interest objectives are not excluded from the scope of the investment protection provisions ("carve out") and no specific clause governing this issue is included. - The public welfare objectives quoted by the Commission are too narrowly defined and do not, for example, include workers' rights, social rights, human rights, education, care, financial market regulation, regional and industrial policy or tax policy. This is also endangering the right to regulate.

B. Investor-to-State dispute settlement (ISDS)

Explanation of the issue

In most ISDS cases, no or little information is made available to the public, hearings are not open and third parties are not allowed to intervene in the proceedings. This makes it difficult for the public to know the basic facts and to evaluate the claims being brought by either side.

This lack of openness has given rise to concern and confusion with regard to the causes and potential outcomes of ISDS disputes. Transparency is essential to ensure the legitimacy and accountability of the system. It enables stakeholders interested in a dispute to be informed and contribute to the proceedings. It fosters accountability in arbitrators, as their decisions are open to scrutiny. It contributes to consistency and predictability as it helps create a body of cases and information that can be relied on by investors, stakeholders, states and ISDS tribunals.

Approach in most existing investment agreements

Under the rules that apply in most existing agreements, both the responding state and the investor need to agree to permit the publication of submissions. If either the investor or the responding state does not agree to publication, documents cannot be made public. As a result, most ISDS cases take place behind closed doors and no or a limited number of documents are made available to the public.

The EU’s objectives and approach 

The EU's aim is to ensure transparency and openness in the ISDS system under TTIP. The EU will include provisions to guarantee that hearings are open and that all documents are available to the public. In ISDS cases brought under TTIP, all documents will be publicly available (subject only to the protection of confidential information and business secrets) and hearings will be open to the public. Interested parties from civil society will be able to file submissions to make their views and arguments known to the ISDS tribunal. 

The EU took a leading role in establishing new United Nations rules on transparency[1] in ISDS. The objective of transparency will be achieved by incorporating these rules into TTIP.

Link to reference text

Taking into account the above explanation and the text provided in annex as a reference, please provide your views on whether this approach contributes to the objective of the EU to increase transparency and openness in the ISDS system for TTIP. Please indicate any additional suggestions you may have.

Investor-State Dispute Settlement (ISDS) is a discriminatory mechanism, which favours foreign investors above domestic investors, and grants them special privileges that other parts of society do not have, without giving them any matching responsibilities. It allows companies to bypass existing court systems to sue states through private courts run by for-profit arbitrators when they are unhappy with the impacts that regulatory changes have on their investment potential (including their expected profits). It undermines states’ right to regulate and it is characterised by fundamental conflicts of interest of arbitrators. --- Improving transparency of investor – state dispute settlements will not solve the fundamental flaws of the mechanism or make it acceptable. Apart from that, the proposed improvements will not allow full and sufficient transparency as it remains up to the arbitrators to “determine that there is a need to protect confidential or protected information”. In any case, transparency and openness would be much better served if disputes would be dealt with in existing court systems. --- I fundamentally oppose the mechanism for investor – state dispute settlements, because: - No privileged rights should ever be granted to foreign investors. - Courts and not private ad hoc arbitrations are, and have to be responsible for resolving disputes. The process has to be public and not carried out behind closed doors. - Investor – state dispute settlements allows foreign corporate investors to socialise their investment risks, thereby making taxpayers liable for corporate risk.

Explanation of the issue

Investors who consider that they have grounds to complain about action taken by the authorities (e.g. discrimination or lack of compensation after expropriation) often have different options. They may be able to go to domestic courts and seek redress there. They or any related companies may be able to go to other international tribunals under other international investment treaties.

It is often the case that protection offered in investment agreements cannot be invoked before domestic courts and the applicable legal rules are different. For example, discrimination in favour of local companies is not prohibited under US law but is prohibited in investment agreements. There are also concerns that, in some cases domestic courts may favour the local government over the foreign investor e.g. when assessing a claim for compensation for expropriation or may deny due process rights such as the effective possibility to appeal. Governments may have immunity from being sued. In addition, the remedies are often different. In some cases government measures can be reversed by domestic courts, for example if they are illegal or unconstitutional. ISDS tribunals cannot order governments to reverse measures.

These different possibilities raise important and complex issues. It is important to make sure that a government does not pay more than the correct compensation. It is also important to ensure consistency between rulings.

Approach in most existing investment agreements

Existing investment agreements generally do not regulate or address the relationship with domestic courts or other ISDS tribunals. Some agreements require that the investor choses between domestic courts and ISDS tribunals. This is often referred to as "fork in the road" clause.

The EU’s objectives and approach

As a matter of principle, the EU’s approach favours domestic courts. The EU aims to provide incentives for investors to pursue claims in domestic courts or to seek amicable solutions – such as mediation. The EU will suggest different instruments to do this. One is to prolong the relevant time limits if an investor goes to domestic courts or mediation on the same matter, so as not to discourage an investor from pursuing these avenues.  Another important element is to make sure that investors cannot bring claims on the same matter at the same time in front of an ISDS tribunal and domestic courts. The EU will also ensure that companies affiliated with the investor cannot bring claims in front of an ISDS tribunal and domestic courts on the same matter and at the same time. If there are other relevant or related cases, ISDS tribunals must take these into account. This is done to avoid any risk that the investor is over-compensated and helps to ensure consistency by excluding the possibility for parallel claims.

Link to reference text

Taking into account the above explanation and the text provided in annex as a reference, please provide your views on the effectiveness of this approach for balancing access to ISDS with possible recourse to domestic courts and for avoiding conflicts between domestic remedies and ISDS in relation to the TTIP. Please indicate any further steps that can be taken. Please provide comments on the usefulness of mediation as a means to settle disputes.

Efforts to prevent multiple parallel claims do not solve the fundamental problems of investor – state dispute settlements, in particular the fact that investors are granted special privileges to circumvent existing judicial remedies, without any matching responsibility. --- I fundamentally oppose the privatisation of the legal system (ISDS Investor – state dispute settlements) for a privileged group of foreign investors because: - Foreign investors receive equal treatment in developed democracies and constitutional states. - A private ad hoc arbitration process will abolish the existing "level playing field" between domestic and foreign investors. - The proposed reforms do not encourage companies to use the domestic courts first instead of going straight to private arbitration. Investor – state dispute settlements would give foreign investors privileged rights to file a claim, which they will of course then use. - The private arbitration system is currently out of control and cannot be regulated by means of recommendations. When it comes to the proposals made in relation to mediation, this does not discourage the use of Investor – state dispute settlements as there is no obligation for investors to use mediation before going to arbitration.

Explanation of the issue

There is concern that arbitrators on ISDS tribunals do not always act in an independent and impartial manner. Because the individuals in question may not only act as arbitrators, but also as lawyers for companies or governments, concerns have been expressed as to potential bias or conflicts of interest.

Some have also expressed concerns about the qualifications of arbitrators and that they may not have the necessary qualifications on matters of public interest or on matters that require a balancing between investment protection and e.g. environment, health or consumer protection.

Approach in existing investment agreements

  Most existing investment agreements do not address the issue of the conduct or behaviour of arbitrators. International rules on arbitration address the issue by allowing the responding government or the investor to challenge the choice of arbitrator because of concerns of suitability.

Most agreements allow the investor and the responding state to select arbitrators but do not establish rules on the qualifications or a list of approved, qualified arbitrators to draw from.

  The EU’s objective and approach

The EU aims to establish clear rules to ensure that arbitrators are independent and act ethically. The EU will introduce specific requirements in the TTIP on the ethical conduct of arbitrators, including a code of conduct. This code of conduct will be binding on arbitrators in ISDS tribunals set up under TTIP.  The code of conduct also establishes procedures to identify and deal with any conflicts of interest.  Failure to abide by these ethical rules will result in the removal of the arbitrator from the tribunal. For example, if a responding state considers that the arbitrator chosen by the investor does not have the necessary qualifications or that he has a conflict of interest, the responding state can challenge the appointment. If the arbitrator is in breach of the Code of Conduct, he/she will be removed from the tribunal. In case the ISDS tribunal has already rendered its award and a breach of the code of conduct is found, the responding state or the investor can request a reversal of that ISDS finding.

In the text provided as reference (the draft EU-Canada Agreement), the Parties (i.e. the EU and Canada) have agreed for the first time in an investment agreement to include rules on the conduct of arbitrators, and have included the possibility to improve them further if necessary. In the context of TTIP these would be directly included in the agreement.

As regards the qualifications of ISDS arbitrators, the EU aims to set down detailed requirements for the arbitrators who act in ISDS tribunals under TTIP. They must be independent and impartial, with expertise in international law and international investment law and, if possible, experience in international trade law and international dispute resolution. Among those best qualified and who have undertaken such tasks will be retired judges, who generally have experience in ruling on issues that touch upon both trade and investment and on societal and public policy issues. The EU also aims to set up a roster, i.e. a list of qualified individuals from which the Chairperson for the ISDS tribunal is drawn, if the investor or the responding state cannot otherwise agree to a Chairperson. The purpose of such a roster is to ensure that the EU and the US have agreed to and vetted the arbitrators to ensure their abilities and independence.  In this way the responding state chooses one arbitrator and has vetted the third arbitrator.

Link to reference text

Taking into account the above explanation and the text provided in annex as a reference, please provide your views on these procedures and in particular on the Code of Conduct and the requirements for the qualifications for arbitrators in relation to the TTIP agreement. Do they improve the existing system and can further improvements be envisaged?

Filing claims against regulatory government measures has developed into a very lucrative industry for law firms and individual arbitrators, which cannot be regulated by means of recommendations. Furthermore, the proposed reforms to arbitrators’ conduct that are proposed by the European Commission are inadequate to solve the problem. In addition, the proposed Code of Conduct for arbitrators is currently not available for comment. But experience shows, working with European Commission Codes of Conduct has been unsatisfactory and has led to severe complaints from Civil Society. --- I fundamentally oppose granting ISDS to a privileged group of investors from developed constitutional states because: - The text proposed by the Commission only mentions plans for the introduction of a Code of Conduct. As long as such code is not finalised, I cannot comment. - Also the reforms to the ethics, conduct and qualifications of arbitrators proposed by the EU are only recommendations, with no obligation on plaintiffs or arbitrators to adhere to them. - The existing system cannot be reformed due to its inherent flaws: its basic orientation to protect only investor rights, and the fact that it is run by for-profit arbitrators paid by the hour who might have conflicts of interest.

Explanation of the issue

As in all legal systems, cases are brought that have little or no chance of succeeding (so-called “frivolous claims”). Despite eventually being rejected by the tribunals, such cases take up time and money for the responding state. There have been concerns that protracted and frequent litigation in ISDS could have an effect on the policy choices made by states. This is why it is important to ensure that there are mechanisms in place to weed out frivolous disputes as early as possible.

Another issue is the cost of ISDS proceedings. In many ISDS cases, even if the responding state is successful in defending its measures in front of the ISDS tribunal, it may have to pay substantial amounts to cover its own defence.

Approach in most existing investment agreements:

Under existing investment agreements, there are generally no rules dealing with frivolous claims. Some arbitration rules however do have provisions on frivolous claims. As a result, there is a risk that frivolous or clearly unfounded claims are allowed to proceed. Even though the investor would lose such claims, the long proceedings and the implied questions surrounding policy can be problematic.

The issue of who bears the cost is also not addressed in most existing investment agreements. Some international arbitration rules have provisions that address the issue of costs in very general terms. In practice, ISDS tribunals have often decided that the investor and responding state pay their own legal costs, regardless of who wins or loses.

The EU’s objectives and approach

The EU will introduce several instruments in TTIP to quickly dismiss frivolous claims.

ISDS tribunals will be required to dismiss claims that are obviously without legal merit or legally unfounded. For example, this would be cases where the investor is not established in the US or the EU, or cases where the ISDS tribunal can quickly establish that there is in fact no discrimination between domestic and foreign investors. This provides an early and effective filtering mechanism for frivolous claims thereby avoiding a lengthy litigation process.

To further discourage unfounded claims, the EU is proposing that the losing party should bear all costs of the proceedings. So if investors take a chance at bringing certain claims and fail, they have to pay the full financial costs of this attempt.

Link to reference text

Taking into account the above explanation and the text provided in annex as a reference, please provide your views on these mechanisms for the avoidance of frivolous or unfounded claims and the removal of incentives in relation to the TTIP agreement. Please also indicate any other means to limit frivolous or unfounded claims.

Under the current Commission proposals, cases such as Philip Morris challenging Australia’s attempts to introduce anti-tobacco legislation or Lone Pine Resources challenging Québec’s precautionary moratorium on fracking would still be possible. Claims that can easily be dismissed are only the ones without any legal merit according to the text. The Commission’s proposal foresees that it will be up to arbitrators to decide what is frivolous or not. --- The mere fact that the EU has to ward off malicious and unfounded claims demonstrates the inadequacy of the existing system, and reaffirms our determination to oppose the inclusion of investor – state dispute settlements in the TTIP. - The state has nothing to gain from claims, and yet has to defend its democratically legitimate actions in the public interest before individual arbitrators. - The costs of the arbitration proceedings are disproportionately high - on average USD 6-8 million - turning the filing of claims into a booming business for law firms, with taxpayers having to pay the bill for these horrendous costs.

Explanation of the issue

Recently, concerns have been expressed in relation to several ISDS claims brought by investors under existing investment agreements, relating to measures taken by states affecting the financial sector, notably those taken in times of crisis in order to protect consumers or to maintain the stability and integrity of the financial system.

To address these concerns, some investment agreements have introduced mechanisms which grant the regulators of the Parties to the agreement the possibility to intervene (through a so-called “filter” to ISDS) in particular ISDS cases that involve measures ostensibly taken for prudential reasons. The mechanism enables the Parties to decide whether a measure is indeed taken for prudential reasons, and thus if the impact on the investor concerned is justified. On this basis, the Parties may therefore agree that a claim should not proceed.

Approach in most existing investment agreements

The majority of existing investment agreements privilege the original intention of such agreements, which was to avoid the politicisation of disputes, and therefore do not contain provisions or mechanisms which allow the Parties the possibility to intervene under particular circumstances in ISDS cases.

The EU’s objectives and approach

The EU like many other states considers it important to protect the right to regulate in the financial sector and, more broadly, the overriding need to maintain the overall stability and integrity of the financial system, while also recognizing the speed needed for government action in case of financial crisis.

Link to reference text

Some investment agreements include filter mechanisms whereby the Parties to the agreement (here the EU and the US) may intervene in ISDS cases where an investor seeks to challenge measures adopted pursuant to prudential rules for financial stability. In such cases the Parties may decide jointly that a claim should not proceed any further. Taking into account the above explanation and the text provided in annex as a reference, what are your views on the use and scope of such filter mechanisms in the TTIP agreement?

The Commission proposal of a specific filter mechanism of investor – state dispute settlement claims for rules relating to the financial stability itself is an acknowledgement that this mechanism is dangerous and cannot be regulated. --- I believe that investor – state dispute settlements should not be included in the TTIP, and also that the filtering mechanisms are inadequate because: - Adequate regulation of the financial markets cannot be ensured by these proposals. - Current claims, especially against Cyprus and Greece, confirm how investment protection provisions are abused by financial speculators to the detriment of the general public, thereby ultimately jeopardising the stability of the financial and economic system of the EU.

Explanation of the Issue

When countries negotiate an agreement, they have a common understanding of what they want the agreement to mean. However, there is a risk that any tribunal, including ISDS tribunals interprets the agreement in a different way, upsetting the balance that the countries in question had achieved in negotiations – for example, between investment protection and the right to regulate. This is the case if the agreement leaves room for interpretation. It is therefore necessary to have mechanisms which will allow the Parties (the EU and the US) to clarify their intentions on how the agreement should be interpreted.

Approach in existing investment agreements

Most existing investment agreements do not permit the countries who signed the agreement in question to take part in proceedings nor to give directions to the ISDS tribunal on issues of interpretation.

The EU’s objectives and approach 

The EU will make it possible for the non-disputing Party (i.e. the EU or the US) to intervene in ISDS proceedings between an investor and the other Party. This means that in each case, the Parties can explain to the arbitrators and to the Appellate Body how they would want the relevant provisions to be interpreted.  Where both Parties agree on the interpretation, such interpretation is a very powerful statement, which ISDS tribunals would have to respect.

The EU would also provide for the Parties (i.e. the EU and the US) to adopt binding interpretations on issues of law, so as to correct or avoid interpretations by tribunals which might be considered to be against the common intentions of the EU and the US. Given the EU’s intention to give clarity and precision to the investment protection obligations of the agreement, the scope for undesirable interpretations by ISDS tribunals is very limited. However, this provision is an additional safety-valve for the Parties.

Link to reference text

Taking into account the above explanation and the text provided in annex as a reference, please provide your views on this approach to ensure uniformity and predictability in the interpretation of the agreement to correct the balance? Are these elements desirable, and if so, do you consider them to be sufficient?

The fundamental structure of the investor – state dispute settlement mechanism is bound to introduce unpredictability in the interpretation of trade agreements, by allowing companies to raise claims that a panel of three private arbitrators will have to interpret without any duty of public accountability towards the parties ortheir respective citizens. --- Investor – state dispute settlements need to be dropped as a whole, because: I am of the conviction that the negative effects of investment provisions cannot be mitigated with interpretive notes and agreement interpretations because the practical experience of the arbitration process shows, these are not absolutely binding for the private ad hoc courts of arbitration, and that is why investor – state dispute settlements need to be dropped as a whole.

Explanation of the issue

In existing investment agreements, the decision by an ISDS tribunal is final. There is no possibility for the responding state, for example, to appeal to a higher instance to challenge the level of compensation or other aspects of the ISDS decision except on very limited procedural grounds. There are concerns that this can lead to different or even contradictory interpretations of the provisions of international investment agreements. There have been calls by stakeholders for a mechanism to allow for appeal to increase legitimacy of the system and to ensure uniformity of interpretation.

  

Approach in most existing investment agreements

No existing international investment agreements provide for an appeal on legal issues. International arbitration rules allow for annulment of ISDS rulings under certain very restrictive conditions relating to procedural issues. 

The EU’s objectives and approach 

The EU aims to establish an appellate mechanism in TTIP so as to allow for review of ISDS rulings. It will help ensure consistency in the interpretation of TTIP and provide both the government and the investor with the opportunity to appeal against awards and to correct errors. This legal review is an additional check on the work of the arbitrators who have examined the case in the first place.

In agreements under negotiation by the EU, the possibility of creating an appellate mechanism in the future is envisaged. However, in TTIP the EU intends to go further and create a bilateral appellate mechanism immediately through the agreement.

Link to reference text

Question 12. Taking into account the above explanation and the text provided in annex as a reference, please provide your views on the creation of an appellate mechanism in TTIP as a means to ensure uniformity and predictability in the interpretation of the agreement.

The notice accompanying the Commission’s consultation mentions that “the EU aims to establish an appellate mechanism in TTIP, so as to allow for review of investor – state dispute settlement rulings”. This does not give any certainty whether this will actually materialise. --- As I fundamentally oppose any privatisation of the jurisdiction, I do not see any need to discuss appellate mechanisms.

C. General assessment

General assessment
  • What is your overall assessment of the proposed approach on substantive standards of protection and ISDS as a basis for investment negotiations between the EU and US?
  • Do you see other ways for the EU to improve the investment system?
  • Are there any other issues related to the topics covered by the questionnaire that you would like to address?

What is your overall assessment of the proposed approach on substantive standards of protection and ISDS as a basis for investment negotiations between the EU and US? Investor – state dispute settlement is an essentially biased and undemocratic system, which grants foreign investors privileges that no other part of society has, without any matching responsibility. It allows investors to circumvent existing court systems. Furthermore, investor – state dispute settlements undermine the right to regulate because it has a strong chilling effect on governments, with the mere threat of massive compensation payments weakening them, causing delay or even putting a stop to new public interest regulations. The reforms proposed by the Commission as part of this consultation do not alleviate my concerns at all. In the context of the EU-US deal, investor – state dispute settlement is particularly not needed, or indeed in any other trade deal. --- Do you see other ways for the EU to improve the investment system? I categorically reject the privatisation of jurisdiction and I believe investor – state dispute settlements should be excluded from the TTIP. Investors can and should rely on the national court systems. For further consistency and predictability, investor – state dispute settlements should also be excluded from the EU-Canada agreement, as well as any other free-trade agreements the EU is negotiating. --- Are there any other issues related to the topics covered by the questionnaire that you would like to address? First of all I would like to express my deep concerns with this highly complicated and technical questionnaire. If a consultation asks for the contribution of civil society/the public, then an honest attempt should be made whereby non experts should be able enabled to contribute. This is definitely not the case with this consultation, especially because, up until this question, there has been no possibility to state that I do not want any investor – state dispute settlements at all - in TTIP, or in any other trade agreement. Furthermore, technical obstacles that prevent me from only filling in one part of the form, or to respond through email or fax fundamentally alter the “public” character of this consultation. I am also very critical of the fact that not all of the agreement provisions on investment protection or the full negotiation documents were published prior to this consultation. In addition to investment protection, there are also other sensitive areas, such as the rights and protection of workers, environmental, health and consumer protection, regulations concerning public services, issues of sustainability, etc. Therefore a serious assessment of the investment protection provisions is impossible, even for experts. This makes a public debate on what is really being put on the table impossible. Concerning the TTIP negotiations as a whole I would like to express severe concerns in relation to the lack of transparency. It is not acceptable that the public will only learn of the exact provisions of a trade and investment agreement that will affect every aspect of citizens’ lives, after the end of the negotiations. Therefore, I demand transparent negotiations with a strong involvement of trade unions, NGOs and civil society during the process. Finally, I call for the analysis of the responses received to state how many of the participants fundamentally oppose the inclusion of investor – state dispute settlements or investment protection provisions in the TTIP