02 January 2016


In my last update, I focussed once more on the Investor-State Dispute Settlement element of TTIP, this time in the light of the European Commission's consultation on the subject, which closes this week, on 6 July.  Alongside that column, I also wrote a similar post over on Techdirt, which contains yet more information about ISDS and the consultation.

Specifically, in that last piece I called the Commission's consultation a "sham".  That's because it does not ask what people think about including ISDS in TTIP; it simply offers some minor tweaks to the basic ISDS idea, and asks for feedback on those.   Moreover, the 12 main questions are couched in such technical language that most non-experts will be put off from expressing their views (the thirteenth is the only general one that allows you to express your views more freely.)  Essentially, the consultation is designed for show, with the conclusion already foregone.

However, that reckons without the determined efforts of civil society organisations who have been putting together some great resources to help ordinary citizens navigate through the conceptual minefields, and to have their say.  I mentioned one of these last week.  "No 2 ISDS" allows you to enter your name and email and to use pre-written answers supplied by the site.  At the time of writing, around 10,000 people have done that.  Although the answers are very good, I would urge you to write your own, since it is likely that the European Commission will try to dismiss identical answers.  However, if you really don't have time for a more personal response, this is certainly better than nothing.

The EDRi organisation does not write your response for you, but it does make it very easy to formulate them.  It has produced an Answering guide [.pdf], which you can download and read offline (there's also an online version - see below.)  This not only explains what each question means, but lists a number of points you might like to consider in your answer.  This makes it very easy to pick out the one you care most about, and to put it into your own words so that the Commission cannot claim it is a cut-and-paste job. 

As well as illuminating the often opaque questions, EDRi has addressed another major flaw in the EU consultation: the fact that you must submit your answers using the online form, and that you only have 90 minutes to do so.  Both of those are absurd, and suggest that the Commission is going out of its way to make it hard for ordinary citizens to respond - lobbyists, of course, are adept at accommodating anything, so it's no barrier for them.  Helpfully, EDRi has provided an online system that not only gives you each question with its explanation and talking points, but also a box to draft your own response:

You can use this form to draft your answer(s) to the questions raised by the Commission.

It is possible to save your answers. In that way, if you accidentally close your browser session or if you want to continue at a more convenient moment, you do not have to start over. By the way, your answers will be saved locally, in your browser, and will not be transmitted to us or to a third party. The answers are purely for your own reference.

Each answer is limited to 4,000 characters by the Commission, therefore we have also restricted the length of the comment areas.

Once you are finished, go to the Commission online consultation form, just click here.

With all these tools and background documents at your disposal, I therefore strongly urge you to make a submission to the European Commission on the inclusion of ISDS in TTIP.  Since the Commission has shown precious little inclination to allow us any other opportunity to express our views about this important trade agreement, even though it will touch on many aspects of lives, we should take this rare opportunity to make our views known as clearly as possible.  As usual, I included below what I have submitted.

Question 1 : Scope of the substantive investment protection provisions

In your explanation, you write that the key question here is: "What type of investments and investors should be protected?"  The answer to this is simple: no type of investments or investors should receive additional protection under TTIP.  The key word here is "additional":  I am not saying that investment and investors should not receive protection at all, just that it is unnecessary to give them extra privileges. 

There is simply no justification to give already-powerful companies even more power and privileges.  The legal systems in the EU and US have evolved and been refined over many years; they already offer companies huge advantages not available to members of the public.  That is because companies have resources that they can use to fight and exploit even the strongest legal system.  This has been seen time and again when skilful lawyers have managed to limit or eliminate fines imposed on corporate offenders.  Similarly, investors are already accorded a wide range of preferential treatment, often to the detriment of local companies. 

If TTIP is going to alter the balance of power here, it should arguably do so by diminishing the power and privileges of investors and companies, not by increasing them.  I therefore believe that the objective and approach taken in relation to the scope of the substantive investment protection provisions in TTIP is fundamentally misguided, wrong and inequitable.  The solution is to drop investment from TTIP completely, and to allow the national legal systems to do their job.

Question 2 : Non-discriminatory treatment for investors

As my answer to Question 1 indicates, I believe that foreign investors already have privileges not accorded to local companies.  This is patently unfair for European companies, and should be rectified by removing all and any such discriminatory features of TTIP, which means removing this chapter completely.  This is doubly advisable given the fact that the European Commission has admitted that there is a massive loophole in the Most Favoured Nation article of CETA which would have undermined any so-called "safeguards" in this area.

The fact that the European Commission experts overlooked this important flaw, and that it was only spotted thanks to a leaked copy of CETA emphasises why the absurd refusal to allow the public to see any draft documents is not just anti-democratic and lacking in transparency, but counter-productive too.  Adopting an open approach to negotiation would allow external experts to spot this kind of mistake before it is too late.  Who knows what blunders are currently lurking in the secret TTIP proposals?

Question 3 : Fair and equitable treatment

Never was an approach more of a misnomer.  As the European Commission itself is forced to concede, the lack of definition of "fair and equitable treatment" has led to such a wide range of interpretation by the secretive arbitral tribunals that the concept is clearly not fit for purpose.  It is so vague as to be useless, and guarantees that it will be challenged and gamed by lawyers (many of whom will also be sitting on those same arbitral tribunals, in a clear conflict of interest.)  This element cannot be salvaged, as the Commission's own unsuccessful attempts to do so demonstrate: its "closed" list is not properly closed, and therefore useless in terms of limiting the damage that this concept can cause.

Once again, the only solution is to remove the entire investment chapter from TTIP and allow national courts to adjudicate on what is "fair and equitable", as they have always done, and done well thanks to the far better established body of law on both sides of the Atlantic. That contrasts with the arbitrary and capricious judgments handed down from lawyers who have a vested interest in making "fair and equitable treatment" mean whatever they want.

Question 4 : Expropriation

This is a perfect example of why ISDS is outdated and no longer required.  The original impetus behind expropriation clauses in ISDS was to prevent rogue governments from seizing factories and other materials - a physical expropriation.  Today, expropriation has reached the absurd heights of companies making claims against governments for "indirect expropriation of future profits".  Trying to close all the loopholes in this idea is like trying to stop a sponge from leaking: it is neither possible nor sensible.  Again, the only rational solution is to drop this and all other elements of investment protection. The European Commission's foolish attempt to "clarify the provisions on expropriation" simply legitimises an idea that should never have been taken seriously.  Enshrining it in TTIP in this way would be a gross error, and lead to yet more clever legal gymnastics, and yet more abuse.

Question 5 : Ensuring the right to regulate and investment protection

This question - and the thinking that lies behind - is not just misguided, but utterly pernicious.  It sets up a false equivalence between the "right to regulate" and the "right to investment protection."  There is no balance to be achieved here, because the former must clearly take precedence in any sovereign state.  The investment protection flows from the equitable laws of that sovereign state, and instituting a parallel system "guaranteeing" such protection is a fundamental attack on sovereignty - and democracy.

The idea of a "list of horizontal exceptions" confirms that the European Commission is actually placing investment protection above national sovereignty: the former are the rule, and the latter are only permitted as exceptions.  This is not just folly, it is a dereliction of the executive power vested in the Commission.

Question 6 : Transparency in ISDS

The European Commission is to be congratulated for recognising that "Transparency is essential
to ensure the legitim acy and accountability of the system."  But as far as ISDS is concerned, the Commission seems to be trying to use a false syllogism:

"Transparency is essential for legitimacy and accountability;

ISDS lacks transparency;

Adding transparency to ISDS will make it legitimate and transparent."

Of course that is nonsense: making a system that undermines national sovereignty and democracy more transparent does not suddenly render it legitimate.  It simply means we can observe our national sovereignty and democracy being eroded in greater detail.  Clearly the European Commission is trying to use this issue as a (transparent) fig-leaf to cover up the fact that ISDS has no place in functioning democracies.

In terms of "additional suggestions", since the Commission perspicaciously notes that "transparency is essential to ensure the legitimacy and accountability of the system", it should try applying that insight to the TTIP negotiations too, where the lack of transparency inevitably means that there is little or no legitimacy or accountability. 

Question 7 : Multiple claims and relationship to domestic courts

It is simply absurd that the European Commission recognises that investors can bring their disputes before domestic courts, and yet seeks to subvert national legal systems and sovereignty by allowing them to use secret, biased tribunals instead.  The Commission's own analysis here makes it abundantly clear that investors must not be allowed to circumvent the law in this way.  That means ISDS must not be included in TTIP in any form.

Question 8: Arbitrator ethics, conduct and qualifications

Again, the question answers itself: instead of trying to correct a manifestly rotten, biased and unethical system with some future weak and vague code of conduct, the solution is to use what has had just such a code of conduct for centuries: the legal system.  If something you don't need is broken, you don't try to fix it, you just throw it away.  We should do the same with the fundamentally broken and unfixable ISDS system.

Question 9: Reducing the risk of frivolous and unfounded cases

This is pointless because it begs the question what exactly "frivolous" means.  Whatever the definition, lawyers will always challenge it, leading to yet more litigation and expense for the public purse.  The only solution is to drop all ISDS from TTIP.

Question 10: Allowing claims to proceed (filter)

Again, this simply legitimise attacks on national sovereignty by even discussing this issue.  The only way to preserve that is to reject ISDS in all its forms.

Question 11: Guidance by the Parties (the EU and US) on the interpretation of the agreement

This is pointless and redundant.  Pointless because lawyers will always argue, whatever the "guidance"; and redundant because both the EU and US already have well-functioning legal system where this is handled as a matter of course.  Placing ISDS tribunals above those systems is just folly.

Question 12: Appellate Mechanism and consistency of rulings

This would compound the folly of ISDS tribunals by adding yet another unaccountable layer on top.  That would be great news for the lawyers, but bad news for the public that would have to fund even more expensive fights to defend national sovereignty.  Moreover, instituting such a system would bolster the parallel legal system that is only available to deep-pocketed investors, not the general public - hardly how an equitable justice system is supposed to operate.

Question 13: What is your overall assessment of the proposed approach on substantive standards of protection and ISDS as a basis for investment negotiations between the EU and US? / Do you see other ways for the EU to improve the investment system? Are there any other issues related to the topics covered by the questionnaire that you would like to address?

The European Commission's approach to investment protection is fundamentally misguided.  ISDS is simply not needed.  Both the EU and US have extremely well-functioning legal systems that provide sufficient protection for investors.  That is clearly demonstrated by the following facts, taken from the Commission's own Web site (http://ec.europa.eu/trade/policy/countries-and-regions/countries/united-states/):

"Total US investment in the EU is three times higher than in all of Asia.

EU investment in the US is around eight times the amount of EU investment in India and China together."

The Commission's own figures show that in 2012, the foreign direct investment from the US in Europe was 1.5 trillion euros, while Europe's in the US was 1.6 trillion euros.  If over 3 trillion euros has been invested without ISDS, there is clearly no problem to solve here.

Moreover, any company that feels for whatever reason that it needs better protection than the EU and US courts are able to offer is at liberty to take out insurance to provide it, for example from the World Bank.  ISDS is a classic attempt to socialise risk while privatising profit, and it is totally bizarre that the European Commission would wish to impose this burden on European citizens in this way, since ISDS costs are ultimately an expense borne by the taxpayer, who gain nothing in return.

Worse than that, the risks of ISDS are huge.  We are already seeing billion-dollar awards being made by ISDS tribunals, while the number of cases against EU countries is shooting up.  Claims that ISDS is totally standard in investment agreements wilfully misses the point that these are with developing countries that are relatively weak, not with the world's most powerful and litigious nation.  Given that there are over 50,000 US subsidiaries in Europe, the potential for ISDS awards totalling billions - possibly trillions one day - of euros is obvious.  To enter into an agreement with this hanging over the European economy and citizens would be totally irresponsible.

To "improve the investment" system, the national courts should be allowed to do their job, which they have generally done extremely well in the EU and US.  Placing an ISDS tribunal above them will not only undermine investment law, but have huge knock-on effects in other areas.  Of course, ISDS judgments cannot overturn EU law directly, but the chilling effects observed in Canada, for example, where environmental laws were simply dropped when lawyers threatened to invoke NAFTA's ISDS chapter if they went ahead, should be warning enough.

The stated aim of the TTIP is to provide a boost to the EU economy, and create jobs for citizens.  In fact, as the European Commission's own CEPR research shows, even the most ambitious forecast is that TTIP would produce a cumulative 0.5% GDP boost over ten years - in other words, barely 0.05% extra GDP per year.  Therefore taking on open-ended risks through ISDS - something not factored into the already-low growth forecasts - is clearly not something that should even be contemplated.  Instead, risks need to be minimised in order to protect what few benefits might flow from TTIP - not least because the "ambitious" scenario is predicated on a massive deregulation that looks increasingly unrealistic for many sectors.

Finally, a quick comment on transparency.  Although I naturally welcome this opportunity to express my views on ISDS, it is unacceptable that this was a concession that had to be wrung from the European Commission: the people of Europe have a right to express their views on this extremely important project, and fobbing us off with a self-evidently risible claim that we will have our opportunity once the text is agreed is little short of insulting.  At that point, no changes can be made, not even by the European Parliament, which is simply presented with a yes or no choice.

Fortunately, the example of ACTA shows us that MEPs are willing to stand up for their constituents when presented with an anti-democratic agreement, negotiated in secret, that offers benefits only for multinational corporations at the expense of the European public.  I would therefore urge the European Commission to reflect long and hard on that as they read through the submissions to this consultation, and decide how best to respect the wishes of the people who pay their salaries.

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