07 June 2015

Urgent: TTIP Vote - Please Write to Your MEPs before Wednesday

There is a very important plenary vote in the European Parliament on TTIP this Wednesday:

Parliament’s recommendations to the European Commission for its Transatlantic Trade and Investment Partnership (TTIP) talks with the USA will be debated by MEPs on Wednesday morning and voted at noon. Investor protection (ISDS) is set to top the debate, with opinions split on whether Parliament should ask that the use of private arbitration to resolve disputes between investors and public authorities be excluded from the deal.


Parliament will vote on a resolution, drafted by its International Trade Committee with contributions from 13 other committees, which assesses the progress made after one and a half years and sets out Parliament’s views on what needs to be achieved and safeguarded in the Commission’s talks with the USA in areas such as agriculture, public procurement, data protection, energy, and labour rights.

However, that draft resolution has a huge problem: it does not unequivocally reject investor-state dispute settlement (ISDS), the supra-national tribunals that allow corporations to sue nations, which means you and me, since we end up footing the bill.

The good news is that MEPs are often responsive to their constituents contacting them, especially if large numbers do so on a particular theme. So I would like to urge you to write to your MEPs, using WriteToThem, or directly, to ask them to support amendment 27 calling for ISDS to be rejected:

to ensure that foreign investors are treated in a non-discriminatory fashion and have a fair opportunity to seek and achieve redress of grievances, while benefiting from no greater rights thandomestic investors; to oppose the inclusion of investor-state dispute settlement (ISDS) in TTIP, as other options to enforce investment protection are available, such as domestic remedies;

If you want to find out more about TTIP in general, I have written a 6000-word explanation; you can also browse through the 51 columns I have written on the topic over the last two years. Finally, there is a new documentary about TTIP, which provides a superb introduction to the issues – I'm in it, but please don't let that put you off.

I've included below the letter that I have sent to my MEPs: please feel free to draw on its arguments, but I urge you to put them in your words: MEPs hate and will dismiss letters that are carbon copies of others. Individually-written communications, by contrast, are very powerful.

I am writing to you ahead of Wednesday's plenary vote on TTIP. The proposed agreement raises many important issues that the European Parliaments needs to consider, but here I would like to concentrate on perhaps the most contentious, that of investor-state dispute settlement (ISDS), and to urge you to vote for Amendment 27.

Proponents like to point out that the EU currently has around 1400 agreements with ISDS, and that its inclusion has not been a problem so far. What this overlooks is the fact that the vast majority of those agreements are with developing economies; few if any of those countries' companies have investments in the EU, and therefore they are unable to use its measures.

The situation is entirely different with the US. There are 19,900 US-based corporations that own more than 51,400 subsidiaries in the EU, any one of which could invoke ISDS if it is included in TTIP, since the European Commission's TTIP mandate specifies that ISDS must be retroactive, and cover existing investments as well as new ones. A 2013 study commissioned by the UK government from the London School of Economics confirms the risks of ISDS in TTIP: "an EU-US investment chapter is likely to provide the UK with few or no benefits. On the other hand, with more than a quarter of a trillion dollars in US [foreign direct investment] stock, the UK exposes itself to a significant measure of costs" (https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/260380/bis-13-1284-costs-and-benefits-of-an-eu-usa-investment-protection-treaty.pdf).

Even before TTIP, ISDS lawsuits have cost EU governments – and thus the EU public – billions of euros. According to research carried out by Friends of the Earth Europe: "The total amount awarded to foreign investors from EU member states – inclusive of interest, arbitration fees, other expenses and fees, as well as the only known settlement payment paid out by an EU member state – was publicly available for 14 out of the 127 cases (11%) and amounts to €3.5 billion." Since figures are not available for all the other 113 cases, it is likely that the total amount paid out by EU countries is much higher. The sums involved are big, and getting even bigger: in a case last year, an ISDS tribunal made an award of $50 billion against the Russian government, the highest so far.

Just as worrying as the financial implications of ISDS are the chilling effects it has. ISDS awards can be so large that losing a case brought before these secretive tribunals is a serious matter for any country. Governments are therefore naturally keen to avoid bringing ISDS lawsuits down upon themselves. Companies are well aware of this, and have used the mere threat of this kind of action to prevent new laws and regulations being introduced.

For example, in Canada, a precursor of TTIP, NAFTA, was regularly used to kill off proposed legislation. As a Canadian government official said (http://www.thenation.com/article/right-and-us-trade-law-invalidating-20th-century?page=0,5): "I've seen the letters from the New York and DC law firms coming up to the Canadian government on virtually every new environmental regulation and proposition in the last five years. They involved dry-cleaning chemicals, pharmaceuticals, pesticides, patent law.Virtually all of the new initiatives were targeted and most of them never saw the light of day." The European Commission says that the versions of ISDS used in its most recent agreements, with Canada and Singapore, have been drafted to avoid these kinds of cases, but independent research by two groups shows that these claims don't stand up to scrutiny (available at http://www.iisd.org/pdf/2014/reponse_eu_ceta.pdf and http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2613544.)

Given those very real dangers, the question has to be: why is ISDS even being considered?

Proponents claim that it is necessary to include ISDS in order to encourage and protect investment across the Atlantic. That seems unlikely given the well-developed nature of the legal systems in both the US and EU. The actions of the investors themselves proves that in fact the protection is not just sufficient in theory, but in practice too: in 2013, the US invested 1.65 trillion euros in Europe; Europeans invested even more in the US – nearly 1.7 trillion euros (European Commission figures – http://ec.europa.eu/trade/policy/countries-and-regions/countries/united-states/.) Clearly, there is no problem that needs solving with ISDS.

Some ISDS supporters admit that ISDS is not needed for TTIP, but say that it must be included for future agreements, by which they mean one with China. This is based on the assumption that it would be EU companies using ISDS to protect their investments in China; it overlooks the fact that China is already the world's second-largest economy, and will soon by the biggest. It is investing massively in Europe, which means that it would be able to use any ISDS clauses in future trade agreements against European governments, just as the US would. In other words, putting ISDS in TTIP purely in order to set a precedent for a future deal with China actually gets the worst of both worlds.

Finally, it is worth noting that if investors are really worried about the risks of putting their money into the US or China they can always take out investment insurance specifically designed for that purpose, which is readily available. Since it is the companies that reap the benefits of their investments, it is only fair that they they should pay for any insurance to cover it. ISDS is in fact a subsidy from the European public to those who invest abroad, rather than at home: it discriminates against EU companies that prefer to put their money into local economies and to boost local employment, which is surely not what the European Parliament would wish to achieve.

For all these reasons, I urge you to support amendment 27 that would take ISDS out of TTIP. Thank you for your help.

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