Current portal location

Website content


Respondent details

  • Company/Organisation: Access
  • Location:
  • Activity: Digital rights
  • Profile: Non-governmental organisation
  • 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?

The text proposed by the European Commission contains vague and subjective definitions, broadening the scope of investor protection. These provisions would not be sufficient to fulfil the objective to “avoid abuse” articulated by the EU in the consultation document. For this reason and the ones outlined throughout this consultation, Access urges the EU to exclude ISDS from the TTIP. First, the definition of “investment” is far too broad. The text does not set limits on the definition as it only lists some of the forms an investment “may take” but does not close this list. The proposed definition also includes unspecified concepts such as “assumption of risk” and “expectation of gain or profit,” which would not provide sufficient clarity to guide arbitration courts in determining the existence of investment while simultaneously protecting fundamental rights. As a consequence, firms would have the ability to sue governments under ISDS even when a tangible investment involving the purchase of real property or assets, or the acquisition of capital has not been made. Second, the definition of “investor” is vague and subjective. Indeed, the definition included in the proposed text only requires companies to undertake “substantial business activities” in the host country. The lack of a definition of the term “substantial” leaves room for interpretation by the arbitrator to determine if a company would be considered an investor. Ultimately, the interpretation of these two broad definitions under ISDS could lead to abuse and enable companies to challenge national legislation without having formally invested in a country. This has already occurred under previous FTAs, where a company successfully changed its nationality in order to file an ISDS case. Specifically, in 2010, a firm used the broad definition of “investor” included in the US-Central America Free Trade Agreement (CAFTA) to initiate a complaint under ISDS. The company was allowed to change its nationality from the Cayman Islands to a CAFTA Party (in this case, the USA) in order to bring a pre-existing dispute to arbitration even though the firm had never made an investment under this treaty. [1] In summary, the scope of the investment protections is far too broad and gives too much discretion to the arbitration courts. To avoid these serious risks, ISDS should not be included in the Transatlantic Trade and Investment Partnership. [1]

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.

The changes proposed in the consultation text do not adequately address the loopholes contained in the non-discrimination clause. On one hand, the current reference text regarding “national treatment” is not specific enough as to exclude indirect or ‘de facto’ discrimination claims. Even if a measure does not directly discriminate between national and foreign investors, it can still be challenged by a foreign investor. Indeed, if the investor can prove the measure in question has an equivalent effect to a directly discriminatory measure, it could challenge it. For instance, if the European Union was to decide to suspend the Safe Harbour Arrangement, a data transfer agreement concluded with the United States, over privacy concerns due to the difference in standard of protection for personal data on both side of the Atlantic, U.S. companies could sue the E.U. under ISDS for adopting a discriminative measure impacting their expected profits. In other words, this broadens the scope of the investment protection provisions in TTIP. On the other hand, the language used in the text does not exclude ISDS from the Most Favoured Nation clause, and so would not avoid the risk of “treaty shopping.” Therefore, if another U.S. or E.U. trade agreement includes an extended definition of “indirect expropriation” or “fair and equitable treatment,” for example, a company could cherry-pick these definitions to apply under the MFN clause. As a result, the scope of investor protection would be extended and the possibility to challenge legislation under ISDS would grow beyond what the European Commission negotiators, the European Parliament, and other relevant authorities consent to in the negotiations. Finally, previous experience with ISDS underlines that the proposed exceptions provided through the GATT Article XX and GATS Article XIV, are not sufficient to protect governments’ right to regulate for environmental and other public interest measures. In this scenario, states must first justify the grounds on which they decide public policies. To date, states have used this exception in 40 cases to defend its own legislation, of which on only one was successful (in the other cases, the courts decided that the challenged public measures either failed to meet their purposes, were not necessary or were arbitrary). [2] [2]

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?

While the reference text seeks to address known loopholes of the fair and equitable treatment provision, the approach fails to clarify and narrow its scope. First, the proposed text includes “manifest arbitrariness” as a defining criterion for the FET clause, which will not solve the lack of clarity and broad the scope of this clause. So far, this clause has led to a shift in treaty practice, greatly increasing the employment of ISDS. For instance, companies used the wide range of similarly vaguely worded provisions included in FTAs to sue governments, leading to a growth of the number of disputes under ISDS from fewer than 50 cases between 1950s and 2000 to 514 known cases between 2000 and 2012. Second, the vagueness of the FET clause does not provide sufficient clarity to guide arbitration tribunals in determining whether or how a given measure if arbitrary. For instance, in the dispute between S.D. Myers vs. Canada brought under the North American Free Trade Agreement (NAFTA), the tribunal found the Canadian government to have acted in “an unjust and arbitrary manner” thus violating the FET obligation when banning the export of a hazardous waste that is proven to be toxic to humans and the environment. This “arbitrary” measure lead the Canadian government to compensate S.D. Myers with $5.6 million. [3] Third, the language used in the reference text does not prevent the risk of ISDS claims through which companies seek to oblige governments to maintain a static regulatory environment. The text invites the arbitration court to consider investor’s “legitimate expectation” when applying the FET clause. Through this provision, the tribunal could interpret that a change in regulation has frustrated investor’s legitimate expectation and thus create the ground for economic compensation. In the past, the threat of investors filing a dispute under ISDS led governments to give up modernising legislation. For example, in already two occasions under the NAFTA agreement, such threats led the Canadian government to abandon its insurance regime and change its regulation on gasoline in order to avoid massive economic damages from expected ISDS complaints. [4] The vagueness this reviewed FET clause could significantly undermine governments’ right to regulate. Therefore, the ISDS mechanism should not be included in the TTIP. [3] [4]

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.

The scope of the substantive provision on expropriation is very broad. The proposed text enables foreign investors to sue governments when they are directly or indirectly expropriated, provided their profits might be reduced due to a change in legislation. First, the reference text presented in this consultation still includes a broad definition of “indirect expropriation” as it goes beyond the sole protection of a property to include “the fundamental attributes of property.” Domestic legal systems of most developed countries limit firms’ ability to launch claims of expropriation solely for regulation affecting real property. However, the language of the proposed text would enable foreign investors to claim compensation for indirect expropriation over copyright, patents, and other intangible properties. [5] This is already the case in some countries were ISDS mechanisms are in place. For instance, in November 2012, Eli Lilly & Co. initiated a dispute under NAFTA against Canada’s standards for granting drug patents, claiming that the invalidation of a patent undermined the company’s “expected future profits” and that Canada committed an “indirect expropriation,” demanding compensation of $500 million. [6] While the resolution of this dispute is yet to be determined, the Canadian government is already starting to rethink its patent legislation in order to avoid paying this penalty. [7] Second, the proposed text fails to include limitations to the scope of “indirect expropriation” to protect legitimate public welfare objectives, such as health, safety, the environment and the protection of fundamental rights from being challenged under this provision. Indeed, the text introduces exceptions allowing companies to challenge public policies when the measure is “manifestly excessive” or “discriminatory.” These definitions would not provide sufficient clarity to guide arbitration courts in determining whether a regulation is excessive or discriminatory while simultaneously protecting public welfare objectives. Third, the text establishes further legal hurdles to the application of the safeguard for public policy measures as it refers to “legitimate” public objectives. Based on this wording, governments will have to prove to the arbitration court that its own legislation pursues a “legitimate” objective, thus undermining governments’ right to regulate. Given the risk of abuse of this clause under ISDS claims, such a mechanism should not be included in TTIP. Domestic court systems should be used to adjudicate these kinds of disputes. [5] [6] [7]

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?

The ISDS mechanism would undermine democracy. This mechanism gives companies equal standing to states as investors can seek a far-reaching level of protection and challenge public policies, which undermines the government’s right to regulate and the will of the citizens as expressed by their elected representatives. The text proposed gives more protections to investors than it does to states. Whereas the text sets binding rights for investors protection, the preamble only recognises a non-binding right to regulate of states. Moreover, the preamble uses a similar wording as the definition of “expropriation,” limiting the right to regulate to “legitimate” public policies. Regarding the “prudential carve-out,” the language of the reference text does not prohibit companies from bringing claims under ISDS on prudential measures taken by states for the protection of key public interests areas such as the environment, health, safety, the financial sector, and fundamental rights. Indeed, it will be up to the state to use the “carve-out” to justify its challenged measure as well as proving that such measure was the least “burdensome.” Whereas the “carve-out” should protect states’ ability to regulate, it instead establishes new legal hurdles and puts prudential measures at risks. Through ISDS, not only would firms be empowered to challenge governments’ public policies, but states would be required to justify regulatory decisions. While investors enjoy a broadened scope for protection, governments would find themselves with a limited right to regulate. For this reason, this dispute resolution mechanism should be excluded from the TTIP.

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.

While the European Commission seeks to improve transparency and openness in the dispute resolution mechanism, this objective will not be achieved through the proposed application of the transparency rules of the United Nations Commission on International Trade Law (UNCITRAL). First, under the UNCITRAL new rules on transparency, the hearings and information in ISDS proceedings will not be automatically disclosed to the public as the arbitration tribunal, after consulting the parties, would be able to decide which documents can be accessed or not. Specifically, under Article 7, arbitration courts would be empowered to block the publication of documents for a broad variety of reasons, including the protection of information that would “jeopardize the integrity of the arbitral process.” [8] The current language does not provide sufficient clarity to guide arbitration courts’ decision to close the hearings and block the publication of the documents. For instance, an ISDS dispute that triggers public critics and demonstrations could be reason enough to limit transparency in the proceedings. Moreover, the list of exceptions to transparency would enable the challenged state not to disclose information or documents that could be considered to be “contrary to its essential security interests,” as stated under Article 7.5 of the UNCITRAL rules. The scope of this particular exception is further broadened in the text proposed by the European Commission in this consultation as it would allow a state to circumvent its national laws requiring the publication of documents in order to object the disclosure of information “that has been designated as confidential or protected.” Moreover, the UNCITRAL rules and the reference text do not clearly specify the procedure for the court to follow in determining which information can be designated as confidential or protected. Finally, the UNCITRAL rules mostly introduce measures to improve transparency in the hearings of complaints but do not ensure transparency in other aspects such as the appointment of arbitrators. In short, the proposed rules will not solve the problem of opacity of the ISDS mechanism. To ensure transparency and openness in legal disputes, the domestic court systems should be used. [8]

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 proposed text by the European Commission promotes the use of the ISDS mechanism to the detriment of national courts. On one hand, the agreement incentivises "forum shopping" for friendly courts, undermining the integrity of domestic legal systems. Under the proposed rules, investors would be empowered to re-challenge decisions made in domestic courts through ISDS. On the other hand, through ISDS foreign investors are able circumvent domestic court systems and challenge legislation in opaque extra-judicial tribunals. However, in the context of a trade agreement between developed countries with functioning judicial systems, there is no need to resort to an extra-judicial system. The ISDS mechanism was created in the 1950s, to protect foreign firms from direct expropriation when investing in countries with weak judicial systems. There is therefore no strong justification for ISDS to apply in the case of a treaty between the EU and the US. Finally, arbitration tribunal are specifically designed to ensure investment protection whereas national courts not only protect investors’ rights but are also bound to uphold fundamental rights. In sum, ISDS puts the rule of law and fundamental rights at risk. This mechanism furthermore has no place in an agreement between two states with functioning domestic court systems.

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?

The proposed text does not include the adequate safeguards to ensure the impartiality and the independence of arbitrators. The proposed procedure for the appointment of arbitrators undermines their impartiality and independence. While the text prevents the appointment of arbitrators that are “affiliated with or take instructions from any disputing party or the government of a Party with regard to trade and investment matters,” it does not prohibit former affiliations or business partners which could be appointed as long as they are not currently linked to either of the parties. This lack of independence and impartiality of arbitrators has been recognised as a major issue of the ISDS mechanism by the United Nation Conference on Trade and Development (UNCTAD). In its recent research paper on ISDS aimed at reforming the dispute mechanism, UNCTAD underlined the increasing number of challenges to arbitrators perceived to be “biased or predisposed.” [9] In addition, the US would likely have a significant advantage over the EU in the nomination of arbitrators. Indeed, each disputing parties choose one arbitrator and the third and last one is appointed by the Secretary General of the International Centre for Settlement of Investment Disputes (ICSID). It is worth noting that ICSID Secretary General is appointed by the President of the World Bank, whose appointment is informally chosen by the US administration. In short, if an EU company decides to challenge the US government, two of three arbitrators will have been appointed directly or indirectly by the US government. Furthermore, the proposal regarding the resolution of conflict of interest lacks conventional institutional safeguards for independence and accountability. The three scenarios proposed whereby a conflict of interest is solved are thus: a party can decide to dismiss its own arbitrators for being biased, arbitrators can decide to remove themselves from the case, or the Secretary General of the ICSID can decide to dismiss the challenged arbitrator. In the first option, it seems doubtful that a party would dismiss its own arbitrator when it could benefit from his or her help in the case. In the second, the exorbitant level of compensation alone means arbitrators have high incentives to remain in the case, making a self-dismissal rather unlikely. Finally, given the appointment procedure outlined above, empowering the Secretary General of ICSID with the resolution of conflict of interest does not inspire confidence in the neutrality of this solution. [10] Finally, regarding the future binding Code of Conduct, the consultation document does not provide specifications on the types of provisions or on the content the EC would like included. There are furthermore no guarantees of enforcement foreseen, and there’s an authorised delay of two years after the entry into force of the TTIP to put in place the Code, without any explanation as to what would happen in the interim. Impartiality and independence of the arbitrators is not ensured under this proposed text. Therefore, domestic courts, functioning under the principle of separation of power, bound to uphold fundamental rights, and designed to be independent and impartial, should be utilized in place of extra-judicial arbitration courts. [9] [10] See The Backlash Against Investment Arbitration: Perceptions and Reality available here:

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.

The proposal text fails to reduce the risk of frivolous and discourage unfounded claims under ISDS. First, in so-called “frivolous cases,” the vague provision included in the reference text will not reduce the risk of such claims proceeding. In order to dismiss a claim, the arbitration court must find it “manifestly without merit.” However, the text does not define this provision thus not providing sufficient clarity to guide arbitration courts in determining the merit of the claim while simultaneously protecting fundamental rights. Second, many of the most controversial ISDS claims are not “frivolous” or “unfounded” in the sense that they do not violate the vague treaty language but where the legal basis is dubious. As an example, consider a current dispute between Australia and the Tobacco company, Philip Morris Asia, taking place under the 1993 Bilateral Investment Treaty between Australia and Hong Kong. Philip Morris is arguing that the Australian cigarette plain packaging legislation, aimed at curtailing the harmful effects of smoking and improving public health constitutes an expropriation of its investments. The arbitration court in this dispute has ruled that the case may proceed even though the Australian government is quite clearly legislating in the public interest on a prudential matter using an approach that exists in several other jurisdictions. [11] Finally, existing mechanisms to avoid frivolous cases included in several trade agreements such as the 2012 US Model Bilateral Investment Treaty (BIT) [12], have proven to be insufficient. This mechanism is seldom invoked by States, and when it is, rarely results in the dismissal of a case. [13] As long as the arbitration courts will have the discretion to interpret vague definitions of “investment,” “investor,” “expropriation,” and imprecise provisions such as “fair and equitable treatment” or “manifestly without merit,” the risk of unfounded or frivolous cases cannot be avoided. Access once again strongly urges the Commission to remove ISDS from the TTIP. [11] [12] [13]!msg/canada-eu-ceta/ZWMCxkXXb4g/5RAIY51Owp4J

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 measures proposed in this consultation to put in place a filter mechanism are not adequate and create legal hurdles for governments. The proposed filtering mechanism has a limited scope. Indeed, it only protects prudential measures on financial regulations, excluding protection measures for several key public interest areas such as the environment, health, and the protection of fundamental rights. Furthermore, the “prudential carve-out” establishes legal hurdles for states. In order to filter out an undeserving claim, governments would have to demonstrate that the public measure challenged by the investors was taken for “prudential reasons.” As a result, the state will have the responsibility to demonstrate the “prudentiality” of a given public measure as well as proving that such a measure was the least “burdensome” of approaches. Following this intervention, the arbitration court would then decide whether the claim can proceed or not. For instance, the proposed filter mechanism designed by the European Commission aims at protecting prudential measures adopted in times of financial crisis in “order to protect consumers or maintain the stability and integrity of the financial system.” However, the mere fact of adopting a measure for these purposes does not protect it from being challenged under ISDS. Governments would indeed have to justify its necessity, proportionality, and non-arbitrariness as well as proving that this measure was the least “burdensome” approach. The proposed filtering mechanism does not prevent risks for the right to regulate as it obliges the state to justify why it has decided to legislate in the first place.

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?

Access welcomes the Commission’s objective to allow the treaty signing parties to provide information on the interpretation of trade agreements. However, these guidelines are not sufficient to “ensure uniformity and predictability in the interpretation of the agreement.” Arbitration courts could overrule the guidance provided by signing parties. This has happened previously, for instance, in the dispute between Railroad Development Corp. and Guatemala, brought under CAFTA. Signing parties of the treaty had included an annex to CAFTA recommending that the “fair and equitable treatment” clause should be interpreted narrowly in accordance with the standard of protection under customary international law (CIL) and state practice. However, the arbitration court rejected these inputs, noting that the States were in error in their interpretation of CIL and decided instead to import a much broader interpretation of “fair and equitable treatment” from another ISDS claim. [14] The proposed text allows governments to provide “binding” guidance when “serious concerns arise as regards matters of interpretation,” however, no enforcement mechanism for this new interpretation of the treaty is put forward. It is unclear how a new “binding” interpretation will be any more efficient than the original binding treaty provision. As a result, the tribunal might reinterpret the government’s input, as in the aforementioned RDC vs. Guatemala case, making the state’s interpretation (which was also binding) meaningless. The proven difficulty in limiting arbitration courts ability to challenge the interpretation of states indicates another fundamental flaws of ISDS. Under ISDS, it is not possible to ensure uniformity and predictability in the interpretation of a treaty, since arbitrators are able to interpret and overrule state interpretations. For this reason, amongst others, Access urges the Commission to exclude ISDS from TTIP. [14]

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 proposed appellate mechanism introduced by the Commission is vague and ambiguous. First, the proposed text does not establish an appellate mechanism, but instead only calls for the creation of a “forum” between both parties to “consult” on the question of whether or not to create such mechanism. Second, the proposal lacks substance. For instance, given the lack of information on the content of the future mechanism, it is unclear at the moment if this appellate mechanism would address key requirements to ensure transparency, independence, and impartiality. Past experiences have shown a failure to deliver appellate mechanisms after a bilateral agreement has been concluded. For example, under CAFTA, a group was set up to “develop an appellate body or similar mechanism to review awards rendered by tribunals.” [15] Ten years after the signature of CAFTA, no appeal mechanism has been or is in the process of being created. While the introduction of an appeals facility has been identified by the UNCTAD as one of the most needed reform for the ISDS mechanism, the current proposal would not sufficient to ensure uniformity and predictability in the interpretation and consistency of rulings. [16] As the EU and the US domestic court systems offer the possibility for court decisions to be appealed in transparent, independent, and impartial institutions, these systems should be preferred instead of ISDS. [15] [16]

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?

First, as our responses above have underlined, the proposed text fails to address the inherent and fatal flaws of ISDS. By elevating companies at the same level as states with fully developed rule of law and being designed for the sole protection of investors, ISDS lacks impartiality and independence in its essence. We strongly urges the European Commission to exclude ISDS of the TTIP as it undermines rules of law and would risk undermining democracy. Second, this consultation does not improve the current lack of transparency in the TTIP negotiations. The European Commission argues that ISDS will benefit investments and publicly announced its decision to include this mechanism in the treaty before launching this consultation. Therefore, respondents to the consultation are not aware of the purposes for which this public consultation is going to be used, which undermines its value and adds more uncertainty to the TTIP process. Third, ISDS would extend companies influence on legislation. Over the years, we have already witnessed the increasing influence exercised by companies on the law-making process. [17] While it is already difficult to restrain the level of influence on the legislative institutions, ISDS would formalise companies’ involvement in the decision making process, granting them the ability to challenge any type of law in secret courts. Thus foreign investors are given the same status as sovereign nations, being entitled to privately enforce a public treaty. If included in TTIP, ISDS will severely undermine governments’ right to regulate and the rule of law. Furthermore, the Commission proposal locks ISDS intro the TTIP. Existing Free Trade Agreements with European member states which include an ISDS mechanism have a separate stand-alone investment agreement for this mechanism in order to avoid lock-in and give the possibility for the signing parties to opt-out of the ISDS mechanism at any time. [18] However, in the case of TTIP, the Commission puts forward a single option: having ISDS as a chapter of the trade agreement where it would be impossible for signing parties to opt-out of the mechanism without withdrawing from the whole treaty. Finally, ISDS has no place in a trade agreement between the EU and the US, and any existing ISDS agreements with EU member states should also be terminated. This dispute resolution mechanism was designed to protect foreign firms from government arbitrary decisions when investing in countries with weak judicial systems and rule of law, a situation that does not exist in the US and EU. Given the inherent flaws of this mechanism and the risks for government’s right to regulate and the rule of law, Access urges the European Commission to exclude ISDS from the Transatlantic Trade and Investment Partnership. [17] [18]