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Respondent details

  • Company/Organisation: Traidcraft
  • Location: United Kingdom
  • Activity: International trade and trade policy
  • Profile: Company
  • Transparency register: No
  • 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 Commission consultation document states that the EU wants to rely on past treaty practice which it claims 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”. This is not a reasonable interpretation of case law. In the landmark Occidental vs Ecuador, the tribunal found that Occidental had broken domestic law, and yet allowed the claim and awarded the largest known damages in the history of investment arbitration, USD 1.77 billion, the equivalent of Ecuador’s entire education budget. The reference CETA text expands the definition of investments from the comparison BIT text and explicitly includes protection for Intellectual Property. In Phillip Morris’s two current cases against Uruguay and Australia, private commercial lawyers are empowered to over-ride the democratic will expressed by national legislatures, and the interests of public health as agreed at the World Health Organisation (WHO). An investment agreement should not create the basis for such a claim, in what is a parallel but more powerful system than the multilateral one. Recent developments in arbitral findings on the definition of investment are demonstrative of a worrying general trend: tribunal interpretations are inconsistent and unpredictable; they tend to expand the definition of investment and so the jurisdiction of the arbitrators; this heightens legal uncertainty and the costs of litigation for all parties; and ups the scale of potential liabilities for states. For example, in Ambiente v. Argentina a majority decided that sovereign bond instruments constituted an investment because they contributed to Argentina’s economic development, so their Italian holders were entitled to treaty protections. In the same year Uruguay argued that Philip Morris’s activity did not qualify as an investment because it created a net loss: direct tobacco related health-care costs outweighed economic development gains. In this case the tribunal found that a contribution-to-development is not required to qualify as an investment. We propose that the Commission’s definition of investment be narrowed and made conditional so that protection is only available to investments that: 1. Bring long-term benefits to the host country, for example through long-term capital commitment and employment generation; and 2. Qualify as investments in host-state domestic law, so that for example, intellectual property rights are excluded where they are not protected in national law.

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 principle of non-discrimination can conflict with the ultimate goal of investment promotion, namely economic development. Countries seeking to ensure that growth from investment is broad-based may introduce industrial policy that favours local operators in chosen economic sectors, or requires technology transfer or employment of local workers as a legitimate, evidence-based policy. In the context of developing countries, performance requirements could relate to policy measures, for example subsidies; sectors, for example banking, fisheries; policy areas, eg minorities or marginalised populations; or firm size, eg SMEs. Given the ‘gold standard’ that TTIP seeks to create, and ultimately draw developing countries into, it is not appropriate to prohibit performance requirements in TTIP. The case of Piero Foresti and others v. South Africa saw the respondent state settle a challenge to the Black Economic Empowerment legislation it had enacted to right historical racial injustice. This demonstrates that blanket requirements of non-discrimination are not always appropriate in investment treaties. In order to understand the full impacts of the CETA text, we need to see the Schedule to Annex II which will set out the sectors, subsectors and activities that are excepted from treaty requirements (Art. X.14.2). We would welcome the opportunity to comment on this at a later stage. While investment treaties set up strong protections and enforcement for foreign firms, domestic firms are not conferred any privileges, so discrimination is inherent in treaty design, in the rights and remedies available to national versus foreign firms. This is a perverse outcome that reverses the treaties’ requirement for ‘national treatment’: if foreign investors really received national treatment, they would have no right to ISDS or broad substantive treaty provisions, since national firms do not. The Cato Institute in the USA is one of a wide range of commentators that recognise the economic inefficiency of the ISDS system, and are calling for its exclusion from trade and investment agreements including TTIP.

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?

This innocuous sounding provision is a key problem in IIAs when interpreted by for-profit lawyers with an eye to their next contract. In seventy four percent of the cases where US investors won against states, they had relied on this standard. The expropriation standard is balanced by clause X.11.3 which exempts “measures…designed and applied to protect legitimate public welfare objectives, such as health, safety and the environment”. The fair and equitable treatment standard has no similar qualification, and is not covered by the draft General exceptions (which seek to import GATT and GATS). Given the centrality of this clause in claims, the treaty text must except from FET protection any measures taken to achieve good faith, public policy goals in a non-discriminatory fashion. Pacific Rim’s Canadian gold mining enterprise is currently suing El Salvador for $284 million, based on the country’s ‘failure’ to convert an exploration license into an exploitation concession. The company’s latest submission to the tribunal calls El Salvador’s ban on metal mining a ‘manifest abuse of authority’ stating that “Notably, however, Respondent does not attempt to identify any actual legal basis for the actions taken by the Executive Branch of Government in relation to the ban” (para 234). But the President of the country, representing a democratically elected government, does not need to cite a legal basis for the right to regulate. This right is inherent to nation states in international law, a duty of states in relation to human rights. In El Salvador, the majority of the population supported the ban on metal mining because a lack of safe drinking water has become an urgent national concern. Ninety percent of surface water is contaminated and cyanide levels in areas where mining has taken place are dangerously high. El Salvador’s government must have the right to regulate under these circumstances, unencumbered by the threat or realisation of massive fines. The consultation document claims the Commission intends to clearly circumscribe the limits of the FET standard, but the drafting does not achieve this because: - X.X.2.a-f is not expressly a closed list, edit the provision to make it one; - Including ‘legitimate expectations’ enlarges the definition of FET from the position in customary international law, as defined in state submissions and the judgment in Glamis. This creates new grounds for investor claims and greater discretion for arbitrators; - X.X.4 is not clear or limited: the definition of a ‘specific representation’ is so wide that it could include oral statements made in meetings, for example; and - The reference to international law creates another ill-defined ground for claims, and invites litigation to test its meaning. On top of this, the article – including provisions on umbrella clauses - could be subject to MFN, which would nullify the effect of any narrowing that might have been achieved in the current draft. This discussion highlights the limits that can be placed on democratic decisions, regulatory expertise and judicial independence by challenges to such measures against the criteria of fairness and equity, which are so vague that they require subjective interpretation by arbitrators.

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.

Revisions to the expropriation standard improve its clarity and set a high evidentiary bar (“manifestly excessive”) for an investor seeking protection from non-discriminatory measures. The exception for “legitimate public welfare objectives, such as health, safety and the environment” is clear. This is valuable progress. We want to see the same high bar in the FET and non-discrimination clauses, because breach of any one clause can lead to damages. Without this parity, a tribunal may decide that these exceptions and high standards of evidence were deliberately excluded from other articles. At present the text does not include guidance for arbitrators on how to calculate compensation, or the factors that should be taken into account in this. Given the ‘gold standard’ aim of TTIP, we suggest including guidance about its application in developed and developing countries.

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?

- It is on the parliamentary record in Malaysia that the government is holding back draft legislation on tobacco advertising to see the outcome of Phillip Morris’s claims. This is incontrovertible evidence of regulatory chill. As EU member states know, fiscal management is impossible in the face of unlimited claims. US$81.4 million is the average ISDS award. Such a fiscal hit is far more damaging to developing countries: this draft is not a gold standard for developing countries. - The Phillip Morris case exemplifies a fundamental concern that ISDS increasingly encroaches on legitimate public policy. - Expansions to the definition of investment and the FET standard curtail policy space for states to exercise their right to regulate. - By prohibiting domestic content requirements the draft introduces new limits on states’ right to regulate: Article X.5 (b). Such strategies have been used to great effect by developing countries as part of well-targeted industrial policies. With TTIP as ‘gold standard’ African countries seeking economic transformation will be barred from following these successful pathways. - The text provided does not make any explicit reference to the right to regulate except in the preamble. - To ensure protection of the right to regulate, we suggest including clear wording that expresses this intention within the body of the Treaty. - Likewise, we propose that investment policy makes explicit reference to other relevant international treaties, stating that they take priority in cases of conflict. As UNCTAD reflects, “this would help arbitral tribunals to ensure, as much as possible, harmonious interpretation of IIA provisions and see them as part of general international law.” - The European Union is a key supporter of the United Nations’ Guiding Principles on Business and Human Rights (UNGPs), committed to including them in investment agreements. - EU international investment policy and agreements must include the UNGP responsibility for business to protect human rights. To be meaningful, treaty protection and the right to launch proceedings through ISDS must be contingent on an investor’s compliance with the responsibility to protect, and the burden of proof must lie with the complainant. Furthermore, the responsibility must be matched with access to remedy for victims in cases where it is not respected. - Articles 13-17 of IISD’s model BIT provides an example of drafting on investor responsibilities regarding environmental standards, human rights, labour rights. We would like to see such wording in TTIP, CETA, and Commission investment policy. Given the expanding scale of infringement to the right to regulate, the proposed text is far too weak to provide reassurance.

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.

The UNCITRAL transparency reforms are positive but they do not go far enough. They will allow meaningful participation of external parties provided that case documents are made public within reasonable timeframes. This will facilitate the development of relevant amicus briefings by parties interested in the dispute. However, as their chief negotiator Salim Moolian has privately acknowledged, the strong substantive UNCITRAL articles have weak application and wide exceptions. The reforms do not apply to the over 3,000 treaties already in existence, although a treaty enabling states to ‘opt in’ is making progress. Critically, companies can cite commercial sensitivities to prevent publication. This latter restriction is included directly in the draft CETA text (at X.33.4) and may be used widely, limiting the reforms’ impact. MFN clauses can mean that even when parties specify the body of rules (and so the transparency requirements) to apply in arbitration, tribunals may import other regimes. In Garanti vs Turkmenistan the applicable BIT specified UNCITRAL rules only, which contain less favourable dispute resolution provisions. Turkmenistan argued that this was a deliberate decision to depart from its earlier treaty practice, but the tribunal allowed ICSID rules because of Turkmenistan’s consent to ICSID arbitration in treaties it had signed with other states. This is another demonstration of the willingness of tribunals to ignore submissions from the state on the ‘correct’ treaty interpretation. Transparency requirements impose significant burdens on states defending themselves in investment claims , so they do not necessarily benefit developing country governments, however, they do provide information for interested observers and potential contributors. Finally, although they are positive, these reforms do not address the fundamental issue that matters of public policy are ill-suited to arbitration, where tribunals lack expertise on questions of public interest.

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 reference text does not explicitly state that domestic courts will be the first avenue for hearing complaints. If this is the intention, it is very important to be explicit about this in the text. The arbitrator Professor Park recently advised treaty negotiators to use a direct statement like: “investors are entitled to arbitrate only after going to local courts” which would be clear to arbitrators. However, there is no guarantee for negotiating states that their intention to favour domestic courts, and to avoid multiple parallel claims or the subjection of live domestic cases to arbitrators’ jurisdiction will be respected in practice by arbitrators. In two recent examples, tribunals accepted that the BIT required investors to use domestic courts before arbitration and that this precondition had not been met. They subsequently found that it would have been futile to submit to domestic court or that because the host state had failed in a (previously unwritten) corresponding obligation to provide suitable remedy in efficient terms, exceptions to the domestic court requirement would be made. Domestic courts in the European Union are well up to this task, and there is no advantage in providing ISDS. Although there is some concern that European companies will not be treated properly in State level courts within the USA, the USA has never lost an ISDS case, despite a number of strong claims. Therefore, the ISDS route offers no greater assurance of a lack of bias for EU investors. On the contrary, there are many grounds for a reasonable perception of bias within the ISDS system as a whole.

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 ethics of individual arbitrators is not in doubt, therefore the reforms proposed here do not address the core problem. Conflicts of interest are inherent in the arbitration system and this creates a reasonable perception that it is biased. For example: - lawyers may act as an arbitrator making decisions on one case while simultaneously acting as an expert and pleading arguments on a different case; and - challenges to arbitrators are decided by other arbitrators – who have a professional interest in keeping friendly relations within the industry – and who therefore may not act impartially. This makes the arbitration system unsuitable to the resolution of public law disputes.

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.

This is positive but largely irrelevant, in that it would not address any of the problematic misinterpretations of substantive protections referred to above, and neither does it address the power of arbitrators in the ISDS system that is inappropriate to questions of public policy. A more meaningful way to reduce frivolous claims would be to introduce a ‘loser pays’ principle. At present tribunals decide which party pays the costs of arbitration, and their decisions can be arbitrary. For example, in EnCana vs Ecuador, each of the claimant’s grounds were dismissed by the tribunal, and the Ecuador authorities were found to have acted in good faith. Nevertheless, after acknowledging the principle that the unsuccessful party should pay, and without providing reasoning, the tribunal ordered Ecuador to pay not just its own but also the claimant EnCana’s arbitration costs. Encana thus lost nothing by bringing a frivolous claim, and the risk is that this possibility encourages further speculative claims.

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?

Given the large number of ISDS claims against EU member states based on the global financial crisis and subsequent sovereign debt restructuring, it would be wise to include a filter mechanism. The IMF has expressed concern about novel uses of investment agreements in this context. The more effective step would be to remove ISDS from TTIP.

Explanation of the Issue

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

Approach in existing investment agreements

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

The EU’s objectives and approach 

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

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

Link to reference text

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

The problem of inconsistency is inherent in the arbitration system. This may be appropriate to the resolution of disputes between private parties who have made comprehensive and detailed, reciprocal contractual undertakings to each other; it is not appropriate to public interest disputes.

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.

Yes, if there was a permanent appeals court, especially if the roster system could be used to staff it with permanent employees on public sector salaries, this would be a great advance. It would address the risk of systemic bias in the arbitration system, caused by arbitrators’ incentives to generate repeat and new business. An appeals court does not appear in the consultation text which mentions an intent but is largely blank. The lack of transparency in the negotiating process makes it difficult to comment. If improved texts are now available we need to see them. If the parties cannot agree provisions during negotiations, the risk is that the assertions of intent will lead nowhere. The USA has included text about an intention to create an appeals court in its investment agreements for the last 10 years but nothing has materialised to date.

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?

As a company sourcing products in 30 developing countries with a turnover approaching £20 million, Traidcraft’s mission is to fight poverty through trade. We believe trade and investment are vital to inclusive growth and can bring significant benefits through job creation, higher wages, lower prices and wider choice. Traidcraft welcomes the recognition by the European Commission of the need for reform of the international investment regime and the opportunity to input through this consultation. We want to see: 1. No ISDS in the European Commission’s international investment agreements, including TTIP, more urgently CETA, and all that follow. 2. The business responsibility to protect human rights included meaningfully in the European Commission’s international investment agreements. 3. TTIP setting a progressive agenda for the international investment regime. We elaborate these positions below and in our detailed responses. No ISDS in International Investment Agreements ISDS restricts policy space and the right to regulate Investment arbitration is the fastest growing area of international law, it is increasingly encroaching on sensitive areas of public policy for which is was not designed, for example public health, energy and environmental policy, taxation, and social policy. The risk of a claim can create a chilling effect amongst legislators and regulators because of the significant costs of litigation and the massive and increasing scale of damages awarded. These developments run directly counter to the public interest and democratic government, and are undermining elements of public international law. ISDS creates public costs for MNC gains Ecuador stated recently that ISDS is one of the highest risks to its development policy. The recent award to Occidental of USD1.17 billion is the equivalent of Ecuador’s entire education budget. Average ISDS damages are over US$81 million. Fighting and potentially losing cases imposes huge costs. More subtle public costs transpire if trade negotiators concede in areas with broader public benefit in order to secure ISDS in a treaty. ISDS undermines the important principle of ‘national treatment’ in trade agreements: by providing additional protection to foreign firms, investment agreements discriminate against local firms, creating economic inefficiency. The express intent of international investment agreements (IIAs) is to promote economic development. But the evidence suggests these treaties are not an important factor in investment decisions for firms, neither are they are requirement for inward investment. Public funds would better promote inward investment through targeted agencies than in paying for ISDS. ISDS is outdated and unnecessary ISDS is an imperfect mechanism for protecting the interests of foreign investors, because of the time and costs associated with claims. Fortunately it is no longer necessary. The political risk covered by investment treaties is now comprehensively covered by commercial insurance markets, as well as the Multilateral Investment Guarantee Agency, a World Bank body. Protection through insurance is a quicker and less costly route for firms, and imposes none of the risks on states that are mentioned above; it is truly non-discriminatory, being available to national and international investors, and does not impose broader economic inefficiencies. Include business responsibilities to balance investment agreements The European Union is fully committed to the United Nations’ Guiding Principles on Business and Human Rights (UNGPs). The European Commission “has included in recent Free Trade agreements references to the promotion of Corporate Social Responsibility and intends to follow a similar approach in ongoing and planned trade negotiations, including those for stand-alone investment agreements”. EU international investment policy and agreements must include a clear responsibility for business to protect human rights, as required by the UNGPs. For this responsibility to be meaningful, treaty protection and the right to launch proceedings through ISDS must be contingent on an investor’s compliance with the responsibility to protect, and the burden of proof must lie with the complainant. Furthermore, the responsibility to protect must be matched with access to remedy for communities and other victims in cases where it is not respected, as covered in the UNGPs. The UNGPs note that “the terms of international investment agreements may constrain States from fully implementing new human rights legislation, or put them at risk of binding international arbitration if they do so. Therefore, States should ensure that they retain adequate policy and regulatory ability to protect human rights under the terms of such agreements”. We concur. A progressive ‘gold standard’ for the investment protection regime This is a crucial decision point for the international investment regime: ISDS will become the global norm, increasing its coverage from 20-80% of global investment flows, if TTIP, TPP and RCEP include it. UNCTAD’s latest World Investment Report points out that these mega-regional agreements are likely to have systemic implications for the IIA regime and TTIP explicitly aims to lock in a ‘gold standard’ while the USA and EU still have the geopolitical strength to do so. Developing countries are not participating in TTIP. Given developing countries’ united opposition to the Multilateral Agreement on Investment, Traidcraft is concerned that developing country interests will not be represented in the future investment regime, and consequently that the future investment regime will not contribute to sustainable development. General assessment The Most Favoured Nation clause in the reference text could undo all the limited benefits of these proposed reforms. More systemic reform of the investment regime is needed; most importantly, ISDS must be removed from TTIP. Other ways for the EU to improve the system Investment contracts can still provide for recourse to ISDS if the government is satisfied that the sector, scale, or added value of a particular investment justifies this loss of sovereignty in relation to a contractually defined project. This is far less damaging to the right to regulate than a generalised consent to arbitration as found in a treaty, which is open to any person that is found by a tribunal to be an investor or have an investment – terms which can be loosely interpreted.