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Respondent details

  • Company/Organisation: Maan ystävät ry (Friends of the Earth Finland)
  • Location: Finland
  • Activity: Global and environmental justice and community based sustainable development.
  • Profile: Non-governmental organisation
  • Transparency register: No
  • Prior investment in the US: No

Contribution

A. Substantive investment protection provisions

Explanation of the issue

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

Approach in most investment agreements

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

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

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

The EU's objectives and approach

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

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

Link to reference text

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

If one is restricted to consider only business as source of investment then also rights to investments are set to belong only for "business activities in the territory". (like the EU approach says - not to treat mere 'shell' or mailbox firms as investors). But crucial for the equality of rights to invest is that investments are not only to commercial but belong also to less commercial forms of economy. Much before and beyond "business", humankind has made sustainable economic investments, sustaining the economic basis of our life on Earth by less commercial means. Also our daily non-business work, such as to wash up dishes at home, has an economic dimension of investment; commit of resources in a risk taking way with an expectation of gain. World's majority makes every day countless investments, which are crucial for sustaining life, are not "business activities" and waste much less our planet than commercial over-consuming business. Opposite to mere waste or over-consumption, 'investment' usually means economic activity which maintains an economic value and saves its potential to sustain life and means of subsistence. Such majority's daily economic investments are quite sustainable but are left without rights and are severely discriminated for their non-business character if the EU determines that "in order to qualify as a legitimate investor [...], a juridical person must have substantial business activities". Rights to invest are thus discriminatively monopolised only to "business activities" - even though world's people make daily sustainable economic investments which are not substantially business activities. EU would set thus already by its definition of 'investment' a fundamental discrimination against the less commercial, more self-sustaining and less over-consuming forms of sustainable economic investment. Within TTIP such discriminative favoring of the rights of transnational business at the expense of other economic investments would strengthen globally the power of the TNC business investors by severely restricting rights of less commercial investments and depriving world's majority of its less commercial investments. World's poor majority's rights to sustain human life less wastefully by its sustainable investments, the EU approach would undermine to promote in the name of investment rights - by their monopolisation to business - rather the rights of transnational commercial over-consumption, which instead of investing on sources and sustenance of Earth's life, rather wastes them to become consumed to world's rich minority's other purposes. In determining investment by agreements states have "to ensure that their international human rights obligations are considered as a matter of priority in their negotiations" to "shape the process of international economic policy formulation" accordingly (CESCR E/C.12/1999/9, paragr. 5 & 8): States have "to prevent human rights contraventions abroad by corporations which have their main seat under their jurisdiction" "to ensure that all economic, social and cultural rights [...] are fully respected [...] in the context of corporate activities". States "shall ensure that companies [...] do not impede the enjoyment of [...] rights by those who depend on or are negatively affected by their activities". (CESCR, E/C.12/2011/1, paragr. 1 & 4-7) This is crucial as increased rights of business investments expand the commercial capture of lands, forests or waters in the Global South away from the use of the less commercial subsistence of the poor majority. Poor southern peoples are thus deprived of their own means of subsistence through transnational business investments even though it is people's fundamental right that "in no case may a people be deprived of its own means of subsistence". (ICESCR article 1.2) See more in detail the attached Annexes.

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.

As shown above, the EU trade administration sets already by its definition of investment a fundamental discrimination against all forms of economic investment which are less based on markets and commercial consumption and are thus less consuming, more self-subsistent and more sustainable. Right to non-discrimination is violated by agreements which limit the respect for non-discrimination to be applied only to the rights of corporations privileged to profit only compliant to the commercial nature and market value of their business - even where it discriminates human rights of the affected people. To give actors thus binding rights only compliant to the money which they use to profit discriminates against the fundamental economic human rights in the following 4 ways: 1. Fundamental economic human rights are not treated equally by giving rights only to "business activities". If human beings are in respect to economic rights treated equally only to the extent to which they own money in "business activity" in the territory, this clearly discriminates against their human rights. It is fundamentally discriminating to enact as 'equal treatment' a procedure where human beings are treated having rights just according to the amount of money they control or can capture. "Treating unequals as equals is problematic for the promotion and protection of human rights and could result in the institutionalization of discrimination against the poor and marginalized." (UN High Commissioner for Human Rights, E/CN.4/2002/54, paragr. 43) "While the principle of non-discrimination exists under both human rights law and trade law, the objectives are quite different. While the principle under human rights is directed towards protecting the weak and vulnerable", under the trade law it favors competitiveness of commercial power. (UN High Commissioner for Human Rights, E/CN.4/2004/40, paragr. 51) 2. All economic rights must be in compliance with the fundamental economic human rights. Investments to an area should have rights equally according to how they sustain life and economic human rights in the area - not according to how far they consume area's resources to 'business' profits taken out from the area. Only who can take the profits out from the area can avoid the costs of maintaining the productivity of the area used for production. As investment to an area otherwise requires investor to sustain in the area resources which the area needs for the production, regeneration and sustenance of its life, equal rights to invest to an area are thus the opposite to the privileges to consume the area for taking profits trans-nationally out of the area - a discriminative privilege given only for transnational business. 3. EU-approach to treat equally only commercial investments discriminates against people's equal rights to sustainably invest in an area by diverse less commercial means. To treat commercial actors in a mutually similar way in respect to their commercial business activity or profits does not secure equal treatment of people's rights to invest to the area in a way which sustains area's life. The less an investment in an area is dependent on commercial exchange, the more directly it is often used to sustain area's local regeneration of its life. Commercialised 'equality' treatment discriminatively neglects fundamental economic human rights also where equal protection of people's rights would require different relations to commercial measures and activities in different cases. 4. As industrialised countries are under the Most-Favored Nation principle responsible to give to developing countries' actors equal treatment as to actors of other industrialised countries, the EU however proposes now to undermine even this non-discrimination by giving a privileged status just to the US investors. The EU approach is highly discriminative in respect to diverse rights of economic exchange and investment. See more in detail the Annexes.

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?

To be fair and equitable - not arbitrary, unfair or abusive - the treatment in respect to investments should follow what is publicly confirmed in clear, specific representations on rights, access to justice and due process to which the concerned and affected people are entitled. "It is of utmost importance that States Parties ensure access to effective remedies to victims of corporate abuses of economic, social and cultural rights, through judicial, administrative, legislative or other appropriate means" and "prevent human rights contraventions abroad by corporations which have their main seat under their jurisdiction". (CESCR, E/C.12/2011/1, paragr. 5) A minimum requirement of access to justice and its due process is that fundamental human rights cannot be legitimately affected by being judged bindingly by trade arbitration mandated to implement only business rights. States shall not be sentenced by such arbitration to pay to the transnational corporations compensations from fulfilling their primary responsibility of protection and promotion of human rights. It violates further due process and access to justice that in such arbitration 'court', the business corporations have an exceptional role in determining the make-up of tribunals which judge their rights against the nations and can present their arguments in the absence of other parties whose rights and interests are affected. EU approach that "the losing party will bear the cost" means in practice justice to be available and affordable only for rich transnational investors, only compliant to their wealth and its commercial interests. It also violates equal access and due process to determine 'justice' by the privileges of the commercial power and in the absence of institutional safeguards of judicial independence. For the affected people the fair, equitable or equal treatment is not a procedure of 'like' treatment for every euro used to profit in business. States must guarantee equal access to justice and due process with remedy against abuse, discrimination or coercion also to holders of diverse less commercial types of property and to all people whose human rights are affected by trade or investment agreements - to prevent abuse or discrimination on prohibited grounds. "Property status, as a prohibited ground of discrimination" obliges states to respect people's equal rights to hold, invest and use non-commercial or less commercial property with equal rights to protection and access to justice for their type of property and investment.(CESCR, E/C.12/GC/20, paragr. 25 & 40) States have to ensure "conferring legal security of tenure" upon all who are "currently lacking such protection". They must be secured to "possess a degree of security of tenure which guarantees legal protection against forced eviction". (E/1992/23, paragr. 8) "Tenure status should not pose a barrier to people in accessing an effective remedy for the violation of human rights". State has to provide for the affected people equal "judicial procedures for the recognition of [...] possession". (A/HRC/25/54, principle 10 & paragr. 8 & 12) "States should ensure that [...] customary and informal tenure, are systematically and impartially identified, as well as the rights and livelihoods of other people also affected by the investment." (FAO: Voluntary Guidelines on Tenure, 12.10) If trade and investment are to be equally free for all, people must be provided fair and equitable access to justice preventing commercial activity or consumption in North requiring from Southern people things we ourselves would not be ready to do in corresponding conditions. EU-US trade however requires from world's poor majority countless things which we would not be ourselves ready to do voluntarily with the conditions and prices which our trade continuously demands from them. Such trade with such global non-free, discriminative and coercive impacts is the opposite of free, fair or equitable. See the Annexes.

Explanation of the issue

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

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

Approach in most investment agreements

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

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

The EU's objectives and approach

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

Link to reference text

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

As "the right to property is a human right" (EU consultation), it excludes discrimination on the basis of less commercial, informal, cultural, etc. status of property. All rights provided to commercial property must be guaranteed equally for other forms of property. (article 2 of UDHR, ICCPR& ICESCR) Human rights character of the right to property is that: All human beings have equal human rights without distinction of property, including their equal "right to own property" of any status, also together with others, so that "no one shall be arbitrarily deprived of his property" of any form but all get equal protection of the law securing duly all human rights also for others - by equal welfare in a democratic society, so that "everyone is entitled to a social and international order" where all human rights "can be fully realized." (UDHR, articles 1, 2, 7,17, 28 & 29.2) What people have thus a human right "to own" is a means to sustain people's life as self-determined: "In no case may a people be deprived of its own means of subsistence" - which secure all people to have adequate food, water, health, home, decent life, privacy, cultural life's benefits, etc. to sustain their life as people. (ICCPR, articles 1(2), 17 & 27, ICESCR 1(2), 6, 11, 12 & 15 & CCPR GC 12, paragr. 5) As all people shall thus have all this in their possession, secured to fulfill these rights without discrimination of property status, human rights on property mean also regarding invested resources, that: All shall have adequate food, water, health, home, decent life, privacy & cultural life's creations (etc.), equally secured in respect to all - less commercial, informal or other - ways these can be enjoyed in people's own possession as far as such ways respect equal human rights of others. Human "rights, such as access to water services and protection from forced eviction, should not be made conditional on a persons land tenure status, such as living in an informal settlement" or with less commercial culture of property. "To ensure that discrimination in the exercise of Covenant rights is eliminated", state has "to ensure expanded equitable access to land, housing, basic services" also regarding human right to property under investments "by recognizing and respecting a plurality of tenure systems". (CESCR, E/C.12/GC/20, paragr. 25, 34 & 36, and GC 15, E/C.12/2002/11, paragr. 14 & 16 c) As TTIP provides the rights discriminatively only to the commercial business investments, it would increase the commercial take-over of land, water or forest tenures away from people's own less commercial means of subsistence, of which people have a fundamental right to be "in no case deprived". (ICESCR article 1.2) They belong to people's life, integrity and existence as the concerned people as inalienably their "own", and may thus in no case be alienated or exchanged away from people by rights of less inalienable, exchangeable property of corporations' commercial investments: Sources of food, water, health or work, (etc.) of people's communities in the lands where they live shall not be taken away from their such use by which they sustain and determine their life and life-heritage as people. Compliant to how peoples self-determine their life by their communities' ways to subsist, they have a fundamental right to continue their community-determined subsistence use of local land, water and forest. The EU claims that "the right to property is a human right [...] crucial to investors and investments" and would be violated if they are forced to have "their investment expropriated without compensation" or to face "an effect equivalent to direct expropriation". But equal human rights on property and compensation are violated continuously as the less commercial or informal property or investment are taken under commercial control with "an effect equivalent to direct expropriation" and without any due compensation - in the name of rights given only to commercial business. See the attached annexes.

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?

If on investment "public regulation must be based on a legitimate purpose and be necessary in a democratic society" (EU consultation), the protection of human rights is such most democratically necessary 'legitimate purpose. While the EU claims that since the invested property "is a human right" it should not be limited by regulation, the EU requires however regulation to protect investment thus from other regulation which protects all other human rights. In the name of saving human right from limiting regulations it is illogical to limit human rights in all other respects by regulative restrictions just to protect investments. While diverse human rights limit mutually each other "solely for the purpose of securing due recognition and respect for the rights and freedoms of others" (UDHR, article 29.2), human rights on property require primarily that "in no case may a people be deprived of its own means of subsistence": Limitations shall not deprive anyone of adequate food, water, health, home, decent life, privacy & cultural community life which have to be secured for all equally - in respect to all ways how these can be enjoyed in people's own, self-determined possession (not violating equal rights of others). To get investment as a "right to property" protected duly as an economic human right, it shall be fully explicit how it is protected as economic human right to adequate food, water, health, housing, decent life or cultural community life, etc. - and not protected against public regulation which protects these rights. As far as right to invested property is made explicit as such economic human right which demands protection by regulative limitations over other regulations which protect other economic human rights, the situation in respect to these human rights and conditions in economy is that: The necessity of regulative limitations on economic, social and cultural human rights is the extent to which the limitations are "compatible with the nature of these rights" for "promoting the general welfare in a democratic society". (ICESCR, article 4) Trade and investment rules' arbitrators however 'test' the 'necessity' of human rights protection oppositely by judging how human rights, "for example health or water safety standards" could be protected in theory without necessity to restrict trade - for example if state pays billions of euros to cover the damages the non-restricted trade causes to human rights. "The question arises whether this has the effect of subordinating human rights obligations to trade rules" (E/CN.4/Sub.2/2002/9, paragr. 57-58), which act with their huge implementing bureaucracies as regulating limitations restricting the realization of human rights in a manner which is not "compatible with the nature of these rights" neither required by "general welfare in a democratic society". (ICESCR, article 4) TTIP-type rules are unnecessary regulative limitations undermining human rights. Free trade "and bilateral investment agreements [...] can weaken the ability of States to regulate" and "restrict their ability to implement international human rights obligations." (A/68/279, paragr. 16) Violations result from "entities insufficiently regulated by States", from "failure to regulate the activities of [...] corporations so as to prevent them from violating" human rights. (see CESCR; General Comments 12, 14, 15 & 17-19) : "States right to regulate is in fact a duty to regulate [...] obligation to fulfil human rights through appropriate legislative and other measures". "States should not enter into commitments in investment agreements that might threaten the enjoyment of human rights. Consequently, it will be important to undertake human rights impact assessments prior to undertaking commitments to liberalization investment".(E/CN.4/Sub.2/2003/9, paragr 31) See the attached annexes.

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.

TTIP-agreement would make peoples accountable to the transnational corporations and punished to pay to them compensations from how people's human rights may restrict the corporations' opportunities to get profit by the cost of weakening human rights: "Tribunals adjudicating investor-to-State disputes are increasingly interpreting expropriation provisions broadly in ways that could threaten States ability and willingness to introduce new regulations to protect the environment and human rights. It will be important to safeguard the ability to introduce new measures to promote and protect human rights within interpretations of expropriation provisions". (Report of the High Commissioner for Human Rights, E/CN.4/Sub.2/2003/9, summary) The arbitrators of the agreement would decide in the dispute settlement about what kind of laws the country can be allowed to have and how they can or can not be implemented. And peoples have to pay transnational investors compensation for any such democratic laws which by protecting human rights weaken the options of investors and corporations to get and expatriate profits out from the country. Provisions which affect fundamental economic human rights to food, water, health, work, subsistence, housing, education, culture, on environment etc. cannot be competently, legitimately or transparently ruled by trade or investment arbitrators, who do not even have due human rights competence. Settling the disputes "according to the terms of investment agreements [...] might not [...] take into account the many other non-commercial dimensions of the issue at hand. To the extent that this prioritizes commercial considerations over other issues, it raises concerns for the promotion and protection of human rights". "The effects of allowing recourse to strong dispute settlement provisions under investment agreements in the absence of similarly strong accountability mechanisms for human rights [...] in the context of investment" may undermine the realization of human rights. (UN High Commissioner for Human Rights, E/CN.4/Sub.2/2003/9, paragr. 55) Fundamental human rights are not duly respected nor protected if the legitimity of their protection becomes decided by business arbitration, paid and mandated only to secure and protect the commercial rights of business and whose "quasi-judicial mechanism for the settlement of disputes [...] poses a risk of fragmentation in international law" like UN Secretary-General has reported. (UN Secretary General, A/56/326, paragr. 271) Transparency is impossible in implementation or execution of a trade and investment agreement if the agreement has not been based on its publicly assessed impacts on human rights and environment. The global impacts of the EU-US trade and investment agreement and its implementation mechanisms to the economic, social and cultural human rights must be publicly assessed beforehand by the competent UN authorities. Otherwise the negotiations cannot fulfill even the minimum requirements of transparency, legitimacy and democracy and the agreement and its implementation endanger human rights by non-assessed negative impacts. States are responsible for "including the promotion and protection of human rights among the objectives of investment agreements" and securing such "interpretations of provisions of investment agreements that take into account States obligations under human rights law". (E/CN.4/Sub.2/2003/9, paragr. 57) Governments have to ensure that their "pre-existing human rights obligations must prevail" in relation to the commitments on trade and investment and to "prepare human rights impact assessments prior to the conclusion of trade and investment agreements". "Treaties inconsistent with human rights should be considered void and terminated" and states have "to consider the trade or investment treaty, or the problematic provisions within the treaty, as void, or to denounce it." (A/HRC/19/59/Add.5, paragr. 1) See the attached annexes.

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.

States have to "guarantee conformity of their laws and policies regarding corporate activities with economic, social and cultural rights set forth in the Covenant. As part of this obligation, States Parties shall ensure that companies [...] make certain that they do not impede the enjoyment of the Covenant rights by those who depend on or are negatively affected by their activities." (CESCR Statement on the obligations of States Parties regarding the corporate sector and economic, social and cultural rights E/C.12/2011/1, paragraph 4) State is responsible to secure the ability of its judical system to control the respect for human rights also in respect to the business activities of corporations and particularly as the promotion and protection of all human rights and fundamental freedoms must be [...] a priority objective of states. (Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights in 1993, Part I, paragraphs 4 and 14) "It is of utmost importance that States Parties ensure access to effective remedies to victims of corporate abuses of economic, social and cultural rights, through judicial, administrative, legislative or other appropriate means. States Parties should also take steps to prevent human rights contraventions abroad by corporations which have their main seat under their jurisdiction". (CESCR Statement on the obligations of States Parties regarding the corporate sector and economic, social and cultural rights E/C.12/2011/1, paragraph 5) As corporations are however free to use arbitration outside domestic courts, and as the arbitration can make binding judgements independently from states' responsibilities, states lose their possibilities to fulfill their responsibilities to secure human rights through their national legislation and court system. From all written above, it is evident that in the planned TTIP diverse human rights violations are left non-addressed without any means to correct the violations. TTIP is a collapse of justice, democracy and citizenship. The State duty to protect against non-State abuses is part of the very foundation of the international human rights regime. The duty requires States to play a key role in regulating and adjudicating abuse by business enterprises, or risk breaching their international obligations (A/HRC/4/35, para. 18)

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?

When persons are mandated to make binding judgements which affect the fundamental socio-economic human rights of others, but are not even made responsible on human rights impacts of such judgements, the system is non-accountable - collapse of justice. The absence of basic institutional safeguards of judicial independence undermines fundamentally also the neutrality and impartiality of investor-state arbitration. There is no guarantee to prevent that those who may benefit from the results of arbitration could not become an arbitrator in the case.

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.

EU approach is that as only claims by investors with established business activity in the area will be duly treated in the arbitration and that "the losing party should bear all costs of the proceedings. This is a powerful disincentive to weak, frivolous or tactical claims." In practise this means that justice is available and affordable only for big business of rich transnational investors and corporations, only compliant to their wealth and commercial interests. Even the assessment of which cases can proceed as proper cases is done by arbitrators, who will make money if claims go ahead. In all these ways the TTIP is fundamentally structured to subordinate justice under the commercialinterests and commercial power. Such justice is frivolous and unfounded without responsibility over the human rights violations it leads to.

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?

Financial policies should be decided by democracy, not by involving big corporations in the form of arbitration claims to negotiate with the governments for the financial policies solutions to serve their business interests. Such negotiations are likely to open up options for even further corruption in financial policies.

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?

As trade bureaucracy first negotiates an agreement with much room for interpretations and provides for the people, for other sectors of administration, for the parliamentarians etc. a "do not worry" interpretation, then the same trade bureaucracy could again during the arbitration process provide the tribunal another interpretation about the 'original' purpose of the agreement. This would maximize the power of the trade bureauracy to use the interpretative space for the benefit of its own sector (the exclusive competence of commercial policy) to the detriment of democracy, the affected people, the parliament and other sectors of administration.

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.

There is a need to correct the blind power given to the Arbitration Tribunal where it can make binding judgements which affect fundamental human rights of people even without any responsibility to respect those fundamental rights. While this crude violation reflects disrespect of justice which has to be corrected, what the EU presents on the Appellate Mechanism brings no correction. No much content is presented on how the Appellate Mechanism would function. So far no such appellate mechanism is presented which could correct the violations promoted by the structure of the TTIP. What is needed to correct the problem of the Arbitration Tribunal is to renounce the use of the Arbitration Tribunal as there is no justified reason to allow such body with no competence of fundamental human rights whatsoever, to make binding decisions over such measures of laws and governments, which are responsible to realise fundamental human rights - but now would be affected and ruined by commercial rights provided to the transnational business through TTIP Arbitration Tribunal.

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?

TTIP investment protection and investor-state arbitration are structured to contradict and violate poor global majority's fundamental economic human rights on its less commercial life and subsistence. TTIP-negotiations have to be interrupted to avoid human rights violations. Even though TTIP concerns formally just US-EU relations on how to remove restrictions from their business, its impacts would violate the fundamental human rights massively in the Global South. World's trade and investment which benefit the US or the EU, are certainly not too restricted. Global business already serves the US & EU, world's small minority, more than anyone else - by restricting the economy of world's poor majority, who can have per capita thus only tens of times less products from global trade than people in the US & EU. The global trade deals with billions of products which demand land, water, forest, etc. or affect the life of world's poor majority otherwise - as countless raw materials, fuels, work phases, waste and other impacts of the global production originate from or affect the areas or conditions in which the poor global majority lives. Impacts of global commercial production, exchange and consumption to the poor global majority depend thus from the rights, powers and markets, which the transnational corporations (TNCs) have for their trade and investment in the US and EU - from where the demand of this globalised production is driven. Agreements to expand the rights of TNCs in the US and EU - to boost the growth of markets for their transnational products - increase the take-over of lands, waters, forests, etc. from the communities in the Global South under the commercial control of the TNC-driven global production. Southern peoples' fundamental economic human rights weaken and get violated when they are deprived of these their own, local community-determined means of subsistence - if local land, forest, water and other sources of their life are taken under the commercial control of globalised trade and investment. The global impacts of trade and investment agreement to human rights must be publicly assessed and taken fully into account in any negotiations compliant to the UN guidelines (A/HRC/19/59/Add.5) before any decisions - if the negotiations are to fulfill even the minimum requirements of transparency and democracy. Instead of agreeing about rights in global economy just bilaterally among world's richest nations - to take the profits to such world's small rich minority - the EU & US have to negotiate on global economy multilaterally with all the affected nations to make world's economy based on economic human rights of the world. World needs to agree under the UN human rights system how to derive the rights of economic exchange and investment from fundamental economic human rights - from what promotes and sustains human rights and life on Earth - so that investment rights would be truly rights to invest, not just to over-consume and waste. All people whose economic and other human rights are affected by trade or investment agreement must have their human rights duly considered and secured to be respected and realised also in terms and agreements of trade and investment. Affected poor people have equal rights also to due remedy from any measures which have expropriative impacts on such less commercial property - and to be duly involved also to participate to the decision making in such a way that guarantees their human rights are not violated. All affected people, communities and their less commercial forms of subsistence property and investments, informal or customary community tenure on land, water or forest, shall be thus guaranteed equal rights to sustainably economic dignified life, living with minimal waste and consumption per sustained human life and economic human rights realised as adapted to the regeneration of area's diversity of life and customary sustainable use of area's biodiversity. See attached annexes.