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Respondent details

  • Company/Organisation: Finance Watch
  • Location: Belgium
  • Activity: Finance Watch is an independent, non-profit public interest association dedicated to making finance work for society. It was created in June 2011 to be a citizen’s counterweight to the lobbying of the financial industry and conducts technical and policy advocacy in favour of financial regulations that will make finance serve society. Its 70+ civil society members from around Europe include consumer groups, trade unions, housing associations, financial experts, foundations, think tanks, environmental and other NGOs. To see a full list of members, please visit www.finance-watch.org. Finance Watch was founded on the following principles: finance is essential for society and should serve the economy, it should not be conducted to the detriment of society, capital should be brought to productive use, the transfer of credit risk to society is unacceptable, and markets should be fair and transparent. Finance Watch is independently funded by grants from charitable foundations and the EU, public donations and membership fees. Finance Watch has received funding from the European Union to implement its work programmes. There is no implied endorsement by the EU or the European Commission of Finance Watch’s work, which remains the sole responsibility of Finance Watch. Finance Watch does not accept funding from the financial industry or from political parties. All funding is unconditional, vetted for conflicts of interest and disclosed online and in our annual reports. Finance Watch AISBL is registered in the EU Joint Transparency Register under registration no. 37943526882-24.
  • Profile: Non-governmental organisation
  • Transparency register: Yes
  • Prior investment in the US: No

Contribution

A. Substantive investment protection provisions

Explanation of the issue

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

Approach in most investment agreements

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

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

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

The EU's objectives and approach

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

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

Link to reference text

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

Finance Watch believes that the introduction of investment protection mechanisms and ISDS into TTIP will further increase the prevalence of private interests at the expense of public interests in financial services regulation and therefore opposes their introduction into the TTIP entirely, regardless of their modalities.

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.

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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.

Finance Watch believes that the introduction of investment protection mechanisms and ISDS into TTIP will further increase the prevalence of private interests at the expense of public interests in financial services regulation and therefore opposes their introduction into the TTIP entirely, regardless of their modalities.

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.

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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?

Finance Watch believes that the introduction of investment protection mechanisms and ISDS into TTIP will further increase the prevalence of private interests at the expense of public interests in financial services regulation and therefore opposes their introduction into the TTIP entirely, regardless of their modalities.

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.

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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.

Finance Watch believes that the introduction of investment protection mechanisms and ISDS into TTIP will further increase the prevalence of private interests at the expense of public interests in financial services regulation. Whereas we do not see the added value of introducing ISDS between the EU and the US, which both enjoy strong judicial systems, we see a lot of risks, which the specific provisions contemplated by the Commission in relation to expropriation are not enough to mitigate – and could even worsen. Indeed, based on the wording of the annex, we understand that tribunal interpretations and decisions against regulatory policies will be allowed - an unjustified bias for private interests. In particular, in light of the global financial crisis and regulatory responses to it, we can foresee situations where arbitration decisions about expropriation could be detrimental to the public interest: First, expropriation is defined not only as direct expropriation but also as indirect expropriation (a measure that would have an effect equivalent to expropriation). Given the wording of the text provided in the annex to the consultation, we see no guarantee that, for example in a financial crisis, an emergency public decision leading to the write-down of securities held by private investors in banks would not lead to a valid claim. In fact, the text gives a broad definition of indirect expropriation and suggests “a case-by-case, fact-based inquiry” (presumably by arbitrators) that would consider among other factors “the extent to which the measure or series of measures interferes with distinct, reasonable investment-backed expectations”. Such write-downs could lead to significant claims. As an illustration, the Bank Recovery and Resolution Directive (BRRD) which takes effect in 2016 includes bail-in mechanisms that require resolution authorities to impose a portion of losses on private investors in case of a bank failure. Given the experience of the 2008 crisis where taxpayers were called on to absorb private losses, the objective of such rules is quite rightly to avoid bail-out and protect taxpayers’ money. While the BRRD has its weaknesses (see FW analysis), we cannot allow such rules to be challenged by private investors. Second, the Commission states that “non-discriminatory measures taken for legitimate public purposes […] cannot be considered equivalent to an expropriation” but adds that this is “unless they are manifestly excessive in light of their purpose”. But how would “manifestly excessive” be assessed and by whom? How much would public interest weigh in this assessment? We can doubt that arbitrators would put public interest first as it is not their mandate. This poses an additional risk to governments’ freedom to take decisions in accordance with the public interest, as those decisions could lead to financial compensation being imposed – in essence: further transfers of wealth from taxpayers to (foreign) investors. Finance Watch therefore considers that the fundamental risks (see in particular our response to question 13 of the present consultation) embedded in the introduction of ISDS remain despite the proposed provisions.

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).

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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?

Given the strong EU and US judicial systems, there is no need to grant private investors further protection and specific courts. Furthermore, we see no reason to grant foreign investors more rights than any other natural or legal person. Finally, ISDS risk undermining the public interest content of existing and future financial regulation, while the proposed mitigation to protect the ‘right to regulate’ is too weak to tackle these fundamental concerns. First, preventing investors from asking for the repeal of a measure is not enough; it is also deeply problematic to allow investors to claim financial compensation if the value of their investment decreases due to democratically approved regulation. In our view, this would put investors above the law. Regulation is designed to protect public interest precisely to avoid what happened as a result of the absence of effective financial regulation over the past 20 years: a privatization of profits and a socialization of losses. No European court imposed compensation measures on the financial industry and one would expect public authorities to look for mechanisms to address this failure rather than focusing on granting even more protection to the interests of private investors. Past and open cases show that financial compensation claimed by investors can amount to billions. Such compensations alone can discourage ambitious regulation, as policy makers will necessarily consider the potential extra cost for taxpayers in case a claim were upheld by an arbitration court. Second, the conditions of the prudential carve-out are unclear and will not preserve the EU’s ability to regulate in the best interest of citizens. As provided in the text referred to in the annex, the carve-out is restrictive and could lead to unfavourable interpretation from a public interest perspective: • The scope of the prudential carve-out cannot guarantee that essential pieces of financial regulation will be exempted. The recent EC proposal for a structural reform of banks (a key missing piece of EU bank regulation) has objectives that include (among others) avoiding resource misallocation, encouraging real economy lending and reducing conflicts of interest. Such legitimate objectives and their related regulatory provisions could be challenged and would not be protected by the prudential carve-out, which relates only to measures ensuring the “integrity and stability” of the system. • The prudential carve-out is weakened by the provision that “measures shall not be more burdensome than necessary to achieve their aim”. Not only will the burden of proof of 'non-excessiveness' fall upon public authorities, but one can also doubt that such a vague formulation will leave policy makers clear from any potential challenge by investors on much-needed financial regulation. • The prudential carve-out allows Parties to prohibit a service or activity but not if the prohibition applies “to all financial services or to a complete financial services subsector, such as banking”. How would this apply to rules with an intended sectorial effect, such as the proposed ban on proprietary trading at deposit-taking banks? Third, the proposed temporary safeguards for “exceptional circumstances” are of limited use because they would not apply to emergency regulatory measures, for example steps taken in a financial crisis (e.g. haircuts imposed to investors to protect public finances). Finance Watch is of the view that, despite intense regulatory work since 2008, a lot remains to be done to protect citizens from future financial crisis. Past and future financial regulation should not be subject to direct legal challenge by private investors. Despite the mitigating measures proposed, much-needed regulation might be challenged and states will fear future financial claims. This will likely lead to lower regulatory standards, in other words a “regulatory chill”. Risks are therefore high from a public interest standpoint.

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.

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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.

Finance Watch believes that the introduction of investment protection mechanisms and ISDS into TTIP will further increase the prevalence of private interests at the expense of public interests in financial services regulation and therefore opposes their introduction into the TTIP entirely, regardless of their modalities. The European Commission (EC) suggests several mitigation mechanisms for an improved transparency of ISDS mechanisms compared to the general practice for such private arbitration courts. Finance Watch is of the view that these mechanisms do not solve the major issues posed by ISDS, as mentioned above and in our reply to question 13. In particular we would oppose the following arguments in the EC approach: First, the EC states that “the lack of openness has given rise to concern and confusion with regard to the causes and potential outcomes of ISDS disputes”. Whereas this statement is true to a certain extent, lack of transparency is only one of many issues posed by ISDS, and there are enough cases in the public domain to enable the public to have a good idea of the risks arising from such private arbitration courts – including, as mentioned above: regulatory chill, and the significant impact on public finances if a court awards compensation against a state (see our answers to questions 5 and 13). Second, the introduction of private arbitration courts, which will allow foreign investors to sue EU member states for compensation, risks increasing the already considerable influence of the financial sector on the regulatory process, while worsening the problem of lobby transparency. This issue is of a particular importance to Finance Watch, which was created a few years after the crisis with to the aim of bringing more balance in the public debate over financial regulation, largely dominated by the financial industry. In particular, we are worried that it could import the US litigation culture into the EU (see footnote 7 of the recent article by CEO and SOMO “Leaked document shows EU is going for a trade deal that will weaken financial regulation”, which provides with examples of financial lobby associations suing the US Government on specific pieces of financial regulation). As lawyer Peter Kirby puts it (re: investor rights in trade agreements): [ISDS is] “a lobbying tool in the sense that you can go in and say, ‘Ok, if you do this, we will be suing you for compensation.’ It does change behaviour in certain cases.” (See CEO article: “Still not loving ISDS”) Third, even if the stated objective of the EC is to introduce as a basic principle the fact that “all documents [supporting ISDS cases] will be made publicly available”, the wording provided in the annex makes us believe that significant amounts of important information will be shielded from public scrutiny as they could be considered “confidential or protected information” (business sensitive, trade secret). Finance Watch believes that investment protection mechanisms and ISDS will further increase the prevalence of private interests at the expense of public interests in financial services regulation, and therefore opposes their introduction in TTIP, regardless of the improvements on transparency.

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.

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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.

Finance Watch believes that the introduction of investment protection mechanisms and ISDS into TTIP will further increase the prevalence of private interests at the expense of public interests in financial services regulation and therefore opposes their introduction into the TTIP entirely, regardless of their modalities. As far as multiple claims and relationship to domestic courts are concerned, we wonder why investors and corporations would need to be granted the possibility to pursue litigation both in domestic courts and arbitration courts. An investor should use the public judicial system in place for any claim, just as any other natural or legal person.

Explanation of the issue

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

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

Approach in existing investment agreements

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

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

  The EU’s objective and approach

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

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

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

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

Finance Watch believes that the introduction of investment protection mechanisms and ISDS into TTIP will further increase the prevalence of private interests at the expense of public interests in financial services regulation and therefore opposes their introduction into the TTIP entirely, regardless of their modalities. Arbitrators in private arbitration courts lack the democratic legitimacy of public judicial systems. No rules of conduct, qualification requirements or codes of ethics will alter this fact. An investor should use the public judicial system in place for any claim.

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.

Finance Watch believes that the introduction of investment protection mechanisms and ISDS into TTIP will further increase the prevalence of private interests at the expense of public interests in financial services regulation and therefore opposes their introduction into the TTIP entirely, regardless of their modalities. As far as the risks of frivolous and unfounded cases are concerned, we would argue that any claim from an investor related to the potential impact of a financial regulation that has been adopted through a democratic regulatory process should be deemed unfounded or illegitimate.

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?

Finance Watch believes that the introduction of investment protection mechanisms and ISDS into TTIP will further increase the prevalence of private interests at the expense of public interests in financial services regulation and therefore opposes their introduction into the TTIP entirely, regardless of their modalities

Explanation of the Issue

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

Approach in existing investment agreements

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

The EU’s objectives and approach 

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

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

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

Finance Watch believes that the introduction of investment protection mechanisms and ISDS into TTIP will further increase the prevalence of private interests at the expense of public interests in financial services regulation and therefore opposes their introduction into the TTIP entirely, regardless of their modalities.

Explanation of the issue

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

  

Approach in most existing investment agreements

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

The EU’s objectives and approach 

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

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

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

Finance Watch believes that the introduction of investment protection mechanisms and ISDS into TTIP will further increase the prevalence of private interests at the expense of public interests in financial services regulation and therefore opposes their introduction into the TTIP entirely, regardless of their modalities. As far as an appellate mechanism is concern, we would argue that, even though it can be considered as a sensible approach, it would also provide investors with the possibility to re-introduce a claim against the first decision of an arbitration court, further delaying important policy measures, increasing legal uncertainty and the risk of regulatory chill.

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?

We believe that the EC is not providing the general public with balanced information when it comes to the potential impacts of TTIP in general and investor protection mechanisms in particular. For example, no information is provided on regulations that could be challenged by foreign investors; on the approximate amounts of claims against states based on past experiences; on what could be the impact of these fines on public finances, etc... We do hope that the ongoing Sustainability Impact Assessment commissioned by the EC (which is planned to cover financial services) will help answer these questions and that the EC will communicate in a transparent manner on the risks posed by investor protection mechanisms in TTIP. Finance Watch is of the view that TTIP in general, and provisions related to investor protection and ISDS in particular, bring no value from a public interest standpoint when it relates to financial services, whereas the risks are high (see LSE Enterprise, 2013, “Costs and benefits of an EU-USA investment protection treaty”). Further investor protection mechanisms are not needed: • The EU and the US have arguably among the most developed and stable legal environments in the world. There are no issues about access to justice to justify the introduction of ISDS. ISDS give unjustified rights to a specific class of stakeholders without related obligations. • ISDS are not a necessary provision of free trade agreements (FTAs). As an example, ISDS was removed from the investment chapter of the 2004 FTA between Australia and the USA. • The impact of investment protection clauses on foreign direct investment (FDI), presented as the main rationale for the introduction of ISDS is not supported by evidence (see WTO report, 2010, "Do trade and investment agreements lead to more FDI?"). And the Advisory Scientific Committee of the ESRB recently (“Is Europe overbanked?”, 2014) and many others demonstrate that EU and US financial services are already oversized, challenging the assumption that developing the sector will result in social benefits. On the other hand, the inclusion of financial services in TTIP as a whole, and ISDS in particular, involves many risks: • Everything else being equal, it would feed a race to the bottom in financial regulation, and this despite the mitigating measures proposed by the Commission. This seems inevitable given the terms of the mandate that has been given by the Council to the Commission (see FW evidence to ECON, March 2014). • Looking forward, a “regulatory chill” is inevitable: regulators and policymakers would be constrained by TTIP in their ability to propose and implement the rules necessary to make finance better serve society. Such a regulatory chill would occur even if ISDS were dropped from TTIP. • The potential costs of investors’ claims against states could have a significant impact on public finances, especially in the financial sector where the amounts at stake are huge (as illustrated by the size of the sector and the amounts of FDI at stake). • TTIP in general and ISDS in particular risk increasing the already considerable influence of the financial sector on the regulatory process (see CEO, 2014, “The Fire Power of the financial lobby”). We cannot take the risk of damaging the fragile progress achieved since the crisis in reforming the financial system, or of limiting the scope, impact and efficiency of future regulation. Given that these comments are based on the EC approach as included in the CETA agreement, Finance Watch also calls for a removal of ISDS from CETA. The Commission repeatedly mentioned that it was “executing the instructions of the 28 member states” as provided by the negotiation mandate. Finance Watch therefore calls for a revision to this mandate.