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Respondent details

  • Company/Organisation: The Confederation of Employers and Industries of Spain (CEOE)
  • Location: Spain
  • Activity: business organization representing agriculture, industries and services
  • Profile: business organization representing agriculture, industries and services
  • Transparency register: Yes
  • Prior investment in the US: No


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 has to be a general chapter without exceptions existing a priori to discriminate specific sectors or products; an investment agreement is different from a trade agreement. The concept of investment needs to be as wide as possible in order to grant suitable protection to the various types of investment, whether tangible or intangible, direct or indirect. The list of investments, if one exists, must under no circumstances be exhaustive so that the agreement adapts automatically to new types of future investment. As far as the concept of an investor is concerned, the idea that is being put forward by the Commission on “important business activities” is subjective and needs clarification. Actual business activities may exist without their being important, in contrast to fictitious companies. Moreover, the fact that a company has no offices or physical presence does not necessarily mean that it is not carrying out important business activities. On the other hand, many quite legitimate investments have been articulated by means of companies registered in certain States other than those of the origin of the investment capital. Another aspect that causes concern is the time element of the “important business activity” requirement. When should the important business activity exist? When the investment is constituted, when the agreement is violated, when the arbitration process is initiated, or should it be continuous? Bilateral investment agreements have firmly demonstrated their efficiency in protecting foreign investments without limiting the right of the State to legislate. The concepts of “investment” and “investor” used in bilateral investment agreements have operated satisfactorily. In this case the EU should not abandon this conventional practice. Therefore, the EU proposal would only achieve the restricting of the protection of investments abroad. Any investment which has been made in accordance with the applicable legislation and in keeping with current practice should not be left unprotected.

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.

If investments are to be adequately protected it is essential to respect the principle of national treatment to its fullest extent. The Commission does not draw a clear line between the principle of nondiscrimination and certain aspects related to market access (right of establishment). A general exception to the principle of non-discrimination in the investment agreement entails the risk that the State may disguise a political decision aimed at discriminating a foreign investor under the adoption of measure for public health or environmental reasons. This gives rise to very different applications of current legislation to national and foreign companies by using the argument of public use, a wide concept if there ever was one and which can always be used with a high degree of arbitrariness. Moreover, the proposal of the Commission may even be against the principles of the World Trade Organisation (WTO), owing to which the EU might end up not complying with its international commitments. Furthermore, referring to GATT as a reference in order to define exceptions is not a usual practice as this regulation is intended for trade negotiations. As we are concerned with investments it does not seem appropriate to use the GATT. Finally, we do not agree at all that the clause of the most favoured nation (CNMF) cannot be applied to either procedural precepts or material precepts. Indeed this interpretation implies the suppression of the clause. A restrictive definition is an incentive that investments are not articulated by means of the Transatlantic Trade and Investment Partnership (TTIP). In view of the doctrinal division regarding the application of the CNMF to procedural precepts (the Maffezini doctrine), it could be understandable for the EU to restrict its application to material precepts but not for the clause to be completely eliminated.

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?

A wide definition of what constitutes fair treatment is needed without drawing up lists of specific forms of conduct. The EU proposal limits the interpretation of the concept of “legitimate expectations” in accordance with the requirement for fair treatment, stripping it of meaning on imposing a very high threshold or restricting the concept to certain cases. In fact, it is vital to analyse each particular case in order to see if the infringement of the legal obligation by the State implies a breaking of the principle of equitable and fair treatment. The idea here is not to include a type of clause to prevent regulators and governments from carrying out their duties but rather to attempt to guarantee protection from dramatic regulatory changes. The stable legal framework that any investor requires is not a framework within which no new law or measure is adopted, but rather one to ensure that those which are adopted are non-discriminatory, non-abusive, non-arbitrary, and are carried out in good faith. The principle of fair treatment has proved itself to be an efficient instrument for improving governance, in the sense that it affords protection against regulatory opportunism. It is an instrument that at the end of the day contributes towards the strengthening of democracy, which is an objective that the EU must promote as an asset on which it is based (Article 2 of the Treaty of European Union - TEU). In effect any noncompliance may give rise to an infringement of the investment agreement. Limiting the standards of an investment amounts to violating a fundamental right that is access to justice, which for instance goes against Article 6 of the European Human Rights Agreement or Article 47 of the EU Charter of Fundamental Rights. Finally, we consider vital including the umbrella clause. In fact, an agreement signed between the State and the investor, especially when it comes to concessions, should be considered as an obligation of international public law for the State which receives the investment. The duty of any State to fulfill its legal obligations and compromises derived from an agreement with an investor is a fundamental aspect which is recognized in any State where the rule of law prevails. Therefore, there is no reason why this obligation should be excluded from the sphere of conventional protection of the investor.

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.

As a general rule, if an expropriation (whether direct or indirect) is to be legal it must be in the public interest. This is a requirement per se and as a result there is no need to redound to it as the proposal of the Commission does. If an administration approves expropiatory measures which are not based on reasons of public interest, in that case the adopted measures should be considered as illegal An adopted measure is expropiatory when the investment is emptied from its content and purpose. This is the basic aspect to be taken into consideration in the analysis of the decision adopted by the State. The jurisprudence of the International Court of Justice is clear in this regard: “Norwegian Shipowners”, 1922; “the factory of Chorzow, 1927. In both cases, the Court underlined that an interference of the private property could be an expropriation, even if the intentionality of expropriation did not underlie the decision adopted by the Administration. This same interpretation was used by the Court of Claims Iran-United States, concretely, in the case “Starret Housing”, in which it was stated that the State “can interfere with property rights to such extent that these rights are rendered so useless that they must be deemed to have been expropriated, even though the State does not support to have expropriated them and the legal title to the property formally remains with the original owner”. The International Center for Settlement of Investment Disputes (ICSD) also shares this interpretation. For example, in the case “Santa Elena v. Costa Rica” the tribunal indicates the following: “a property has been expropriated when the effect of the measures taken by the state has been to deprive the owner of title, possession or access to the benefit and economic use of this property”. As far as indirect expropriation is concerned, the definition proposed by the EU excludes from its application any discriminatory measure related to the public interest. The scope of this precept is so wide that it would exempt a State from practically all claims for indirect non-discriminatory expropriation. Moreover, the requirement that the repercussions of a measure must “seem manifestly excessive” is subjective and may lead to situations in which EU investors cannot effectively defend their rights even if the measure is excessive. It is recommended that the definition should include the clause that is part of Article 6 of the 2012 United States investment agreement model (US Model BIT) and that mentions international common law. As far as direct expropriations are concerned, the Commission’s affirmation that this does not tend to happen nowadays is debatable. They do occur and not only at state level but at different local levels. Examples include the following: + Within the EU, see the case law of the European Court of Human Rights (ECHR) on Article 1 of Protocol 1 of the European Human Rights Agreement in relation to Italy. + Outside the EU, the series of expropriations suffered by Spanish companies in Argentina (Repsol) and Bolivia (Iberdrola).

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?

On the one hand, investment protection clauses as they have been developed up to now do not go against the right of States to regulate. On the other hand, as numerous cases have shown, public regulation is not always based on legitimate objectives. The definition of public interest is not universal and often depends on subjective and arbitrary decisions that are not always made for the common good of citizens. The EU approach would therefore further displace the delicate balance between investors and the state towards the latter. In the text presented as a reference (the Comprehensive Economic and Trade Agreement – CETA) the parties are clearly granted the disproportionate authority to decide unilaterally whether to comply with the conditions of the agreement or not. Although the preamble of this agreement is not a source of substantive rules, it will play a key role in the interpretation of the extent of the obligations of the parties. Moreover, the fact of applying so many exceptions to the principle of national treatment and the most favoured nation would restrict the rights of the investors, which in short is not in the spirit of the negotiations of the TTIP Agreement. On the other hand, it is practically impossible to define these concepts as precisely as the Commission intends. New situations that will arise in the future must be handled by the arbitrators. Therefore, they must have sufficient room for interpretation in order to judge case by case in accordance to the regular practice of the law.

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.

Although we are in favour of transparency, because of the sensitivity of the information that is handled in these procedures, we cannot agree that all documents should be publicly available and that hearings should be open to the public in general. Industrial secrets must be safeguarded. On the other hand, the principles of transparency should neither hinder the correct carrying out of the work of the lawyers of the parties during the procedure (including the hearings) nor impose a disproportionate burden on the parties to add to that they already have to prove their case. Moreover, we consider the proposal of the Commission that certain parts will not be published to be very vague. Which parts? Sensitive to whom, the investor or the state? It should be pointed out that on many occasions the party that is not interested in the existence of transparency is the receiving State itself, the actions and omissions of which have harmed the investor as complainant. Finally, and given that as the Commission mentions the regulations of the UNCITRAL on transparency have recently come into effect, it is not necessary for the Commission to go further than the rules of the UNCITRAL that it has supported itself. The key is to apply them correctly.

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.

The dominance of certain courts over others should not be a subject for discussion. On the contrary, investors should be free to choose, above all because as is mentioned in the example in some countries such as the United States national legislation does not forbid discrimination in favour of national companies. Likewise it is not discounted that in some cases national courts may favour the national government rather than the foreign investor. On the other hand, by imposing conditions on the investor for resorting to international arbitration restricts the investor’s right to use Investor-State Dispute Settlement (ISDS). The overlapping and maintaining at the same time of appeals to national courts and arbitration proceedings is a frequent practice. We agree with the maintaining of this practice provided that it does not go against the principle of illicit enrichment. On the other hand, local courts must continue to have competence to aid ISDS arbitration boards (for instance concerning precautionary measures or the examination of evidence). On the other hand, access to the ISDS system by the subsidiaries should not be restricted. It may be possible that each company has its own claim against the same State and that the facts used by the subsidiary and the parental company do not necessarily coincide.

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.

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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?

We do not share the EU initiative on the establishing of a new Code of Conduct for arbitrators when the guidelines of the International Bar Association (IBA) exist and can be used for the purpose. These guidelines are expressly mentioned by the EU itself in Article X.25 (6) of the CETA with Canada and are currently being revised. Neither do we agree with the adoption of a list of set arbitrators. The arbitrators must be chosen by the parties (this right is inherent to arbitration) and by the party-nominated arbitrators themselves or by the secretariat of the International Centre for Settlement of Investment Disputes (ICSID). Moreover, a fixed list of arbitrators may compromise the special experience will be required in some cases. Finally, it does not seem to be appropriate for the role of retired judges to prevail under any circumstances. In their practice and by definition (at least in Spain) there is no reason for judges to know or be familiar with international law, in particular the rules applicable in investment arbitrations. On the other hand, the appointment of judges as arbitrators is a tendency that has been abandoned by international practice as it belongs to a time when there were no specialists on the matters subject to arbitration. Furthermore, the intervention of former state judges may give the ISDS system definitive bias in favour of the states.

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.

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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.

We consider that the EU initiative is disproportionate as it affects the right of access to justice. In general the EU proposal does not take into account that investment arbitration is a legal mechanism that allows many individuals, natural persons, or corporate persons to obtain justice in cases in which their rights have been ignored by actions or omissions of States. In the first place, if the intention is to penalise “false claims” it would be advisable to restrict the application of the rules to cases of summary dismissal, with the starting point being a claim that manifestly lacks a cause of action (see rule 41(5) of the arbitration regulations of the ICSID). Secondly, the rule proposed is not in keeping with the practice of international courts. In most cases the courts of the ICSID have used the approach of “paying one’s own expenses”. In contrast, the exception to the rule (the imposing of all costs on the losing party) has been found in those cases in which the courts have ruled that an appeal manifestly lacked a cause of action, was frivolous, or that one of the parties had acted in bad faith. Consequently we cannot accept the principle of “the loser pays” in well-founded cases. Moreover, it should be pointed out that the cost in both time and money of the ISDS procedures affects the companies and the governments in the same way, or even affects more the former if a comparison is made in relative terms, in contrast to the EU approach that only mentions the cost for the states. This effect is multiplied in the case of SMEs, for which investment arbitration may be the only reasonable means of obtaining redress for damage suffered as a consequence of actions or omissions of States.

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.

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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?

It is very important to avoid the politicisation of lawsuits; for this reason we do not agree with special treatment in ISDS and filtering mechanisms so that the parties can intervene. It should be the ISDS court that, in accordance with the interpretation techniques of international treaties, examines the interests at stake. On the one hand, it should consider the stability and global integrity of the financial system and on the other it should analyse the damage caused to the investors as a consequence of actions and omissions of the State. In this sense it is important that in the case of financial services their regulation is part of the TTIP. This would serve to prevent exceptional emergency situations in the future.

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.

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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?

This measure will limit the Independence of ISDS courts, politicising the process and running the risk that in some cases a rather political and subjective interpretation of the agreement is given, which could lead to the investor being left unprotected. The interpretation of the agreement must fall to those applying it, i.e. ISDS courts. Spontaneous interpretation during the course of a process may conceal intentions of bad faith with the aim of concealing the actions and omissions of the authorities of a State that is a party. To make it binding is to put an end to the Independence of the ISDS court for resolving the dispute – mutatis mutandis; it is very likely that the European Commission would not propose a mechanism that would limit the competence of the European Court of Justice (EUCJ) to interpret community law. Moreover, the persons intervening in a negotiation, who would strictly be the only ones able to give that interpretation, could stop representing the EU or the USA. For this reason, it is not valid to indicate that they should be able to intervene to find out the intentions of the parties. This would be a mistake and would turn the international legislator into an international court. Once the legislation has been passed the work of the legislator should be considered completed. All this is without detriment to the legitimate right that the EU or the USA may have to be non contending third parties to a suit in order to give their opinion in a specific case (the intervention principle). But this will be a case of an opinion similar to that of an amicus curiae that is not binding for the ISDS court. Finally, this practice would be against governance on removing from the debate the drawing up of binding regulations.

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.

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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.

In general terms, we are not in favour of the appellate mechanism because it would generate further costs and delays. Moreover, the most important thing is not to judicialise the model and to avoid the danger of creating case law, which is not a source of international law. Cases should be treated independently. On the other hand, a mechanism for appealing against awards such as that proposed would have a very harmful effect on SMEs, which would not be able to afford investment arbitration procedures consisting of two petitions. They would be obliged to withstand the effects of the measures taken by the State against their investments without being able to exercise their rights. With the sole object of avoiding contradictory resolutions, a mechanism allowing the consolidation of parallel procedures in a single arbitration can be mentioned. If two or more cases should derive from similar actions or omissions of a State that is a party, a single arbitration board could be constituted to give judgement on all of them (without detriment to its paying attention to all the specific facts and circumstances of each case).

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?

The rules on investment protection and ISDS are essential for the effective protection of our investments outside Spain. An investment protection agreement such as that negotiated between the EU and the United States cannot operate without a mechanism for resolving differences, given that a declaration of rights is worthless without a mechanism to defend them. We do not understand why the EU has shown such strong bias in favour of and in defence of the interests of the states throughout the document of the Consultation when investment arbitration is precisely a guarantee for citizens (investors as natural or corporate persons) against the actions and omissions of the authorities. Moreover, investment arbitration serves to strengthen democracy and good governance by means of imposing standards of behaviour for public administrations. As we indicated in question 3, democracy is an objective that the EU should encourage as an asset on which it is based (Article 2 of the TEU). On the other hand, the current investment protection system includes an agile, speedy, and depoliticised instrument, which does not question either the sovereignty of states or their democratic system. It rather strengthens the latter owing to its role of controller of the actions of the state and its subdivisions and public bodies. Moreover, arbitration findings are not biased in favour of the investor, as certain sectors of civil society would have us believe. The data prove otherwise: The statistics published by the United Nations Conference on Trade and Development (UNCTAD) in 2013 (Recent Developments in Investor-State Dispute Settlement (ISDS) – Updated for the Multilateral Dialogue on Investment, 28-29th May 2013; available at indicate that 244 cases were completed in 2012, of which 42% were decided in favour of the state, 31% were decided in favour of the investor, and 27% were settled out of court. The historical statistics of the ICSID (1966-2013) (available at show that 64% of the cases administered by the ICSID were resolved by the corresponding arbitration boards and the remaining 36% were settled out of court or abandoned. Of the above 64% of cases, only 46% of them were resolved entirely or partially in favour of investors. In consequence, only 29.44% (64% x 46%) of the cases administered by the ICSID in the whole of its history have been won entirely or partially by investors. In the remainder of the cases the states won the disputes or settled them freely out of court. As a result of all of the foregoing, in general terms we do not consider the improvements proposed by means of this Public Consultation to be necessary.