TTIP Update IX

As the calendar year draws to a close, you might expect the world of trade agreements like TAFTA/TTIP to be shutting down too.  Surprisingly, though, that's not the case.  The last few weeks have seen more activity and revelations than any so far.   In fact, so much has been revealed in the last few days that it will take several updates over the next week or two to explore the implications.

First of all, let's look at an astonishing attack on Corporate Europe Observatory, the group that obtained the important leak about the proposed TAFTA/TTIP Regulatory Council, which I discussed in my previous  TTIP Update.  The post comes from the EU Trade Spokesman John Clancy, and the fact that the European Commission felt moved to publish it speaks volumes about its increasing nervousness: you don't resort to such tactics if you're feeling confident of your position.  Here's how it begins:

Anti-trade and anti-business lobby group Corporate Europe Observatory (CEO) have scored an own goal with their latest claims against the Transatlantic Trade and Investment Partnership (TTIP). The only thing the latest so-called 'leaked document' published by CEO reveals is confirmation of what the EU has been saying all along; namely that any future deal between the EU and the US will 'reaffirm their [EU Member State governments' and the US government's] sovereign right to adopt new regulatory initiatives, to regulate in pursuit of legitimate public, policy objectives and to ensure that their laws and policies provide for and encourage high levels of environmental, health, safety, consumer and labour protection.'

"Reaffirming" those things doesn't really do much.  If a US company uses the investor-state dispute settlement (ISDS) provisions that are currently in TAFTA/TTIP, to sue the European Union, and the ISDS tribunal upholds the claim, the EU and national governments can "re-affirm" their rights as much as they like, but they will still be expected to pay up, and the US government will doubtless support that decision.  The point is, the tribunal may not agree, and can't be forced to follow any supposed EU line, because it is inherently above national or even European laws - that's the problem.

Here's the next section from Clancy:

Furthermore, the so-called 'leaked document' reflects almost in its entirety the EU's initial position paper already made public in July 2013 and available on-line. This sets out how the EU and US could work more closely together, and more openly, when drawing up future regulations. The changes are designed simply to make future regulations more effective and efficient for both business and consumers – nothing more, nothing less.

So here's what that position paper has to say on the subject:

A body with regulatory competences (a regulatory cooperation council or committee), assisted by sectoral working groups, as appro priate, which could be charged with overseeing the implementation of the regulatory provi sions of the TTIP and make recommendations to the body with decision-making power under TTIP. This regulatory cooperation body would for example examine concrete proposals on how to enhance greater compatibility/conver gence, including through recognition of equiva lence of regulations, mutual recognition, etc. It would also consider amendments to sectoral annexes and the addition of new ones and encourage new regulatory cooperation initia tives. Sectoral regulatory cooperation working groups chaired by the competent regulatory authorities would be established to report to report to the regulatory cooperation council or committee. The competences of the regulatory cooperation council or committee will be without prejudice to the role of committees with specific responsibility on issue areas such as SPS.

In other words, it's largely about overseeing the implementation of TTIP, not going beyond it.  Clancy also writes the following:

details of this [Regulatory Council] along with a broad explanation of the regulatory ambitions of the future TTIP agreement were announced by EU Trade Commissioner Karel De Gucht on 10th October in a speech to the Aspen Institute in Prague

Here's what De Gucht said then (.pdf):

I therefore propose that th e TTIP establishes a new Regulatory Cooperation Council that brings together the heads of the most important EU and US regulatory agencies.

The council would monitor the implementation of commitments made and consider new priorities for regulatory coopera tion - also in response to proposals from stakeholders. In some cases it could also ask regulators or standards bodies to develop regulations jointly that could then have a good chance of becoming international standards.

Notice again how passive the Regulatory Cooperation Council (RCC) is there: it would "monitor" implementations, "consider" new priorities, and "in some cases" ask regulators to come up with something new.  Contrast that with what we read in the CEO leaked document (.pdf):

The functions of the RCC will include inter alia:

Considering and analysing, with the help of the relevant working groups substantive joint submissions from EU and US stakeholders or submissions from either Party on how to deepen regulatory cooperation towards increased compatibility for both future and existing regulatory measures;

The RCC may be assisted by sectoral ad hoc working groups. In the domain of financial services the functions of the RCC to monitor, guide the cooperation and to prepare the yearly Regulatory Programme will be assumed by a competent sectorial body established by the TTIP.

Specific modalities will be established for interaction of the RCC with legislators (US Congress and the European Parliament). The RCC should interact with stakeholders, including business, consumers and trade unions. For this purpose a EU-US multi-stakeholder advisory committee or similar body should be established that would regularly meet with and work with EU competent authorities and US regulators in crafting regulatory measures or taking decisions how to further compatibility of existing one (e.g. through mutual reliance, recognition, etc.).

Suddenly the RCC has become an active participant in the formulation of new regulations, interacting directly with legislators on both sides of the Atlantic, and even "crafting regulatory measures".  That's the key change the Clancy chooses to ignore, because it reveals the first outlines of the European Commission's emerging plan to give big business the deregulation it is demanding, but without making it too obvious by enshrining it in TTIP itself for all to see.  Instead, health and safety regulations on both sides of the Atlantic will be swept away – sorry, made "compatible" – through a very gradual process brought about by the dull-sounding  Regulatory Cooperation Council that will in fact effectively veto regulatory changes in favour of the public, which diminish corporate profits.  This will introduced a regulatory ratchet that ensures new laws and rules are always in favour of companies, just as the copyright ratchet ensures that changes to law are always in favour of copyright companies, never the public.

Clancy's last paragraph is as follows:

The EU welcomes an open public discussion on TTIP including the important input from civil society including all stakeholders whether NGOs or business. Unfortunately, CEO only does a disservice to this important discussion with misleading and exaggerated claims once again. Since the launch of EU-US discussions, the EU Commission has welcomed an open public debate but such a debate should be based upon the facts and not the spin.

The European Commission has not invited "open public discussion" -- I challenge it to point out any occasion when the public was invited and able to discuss TTIP with the Commission in any meaningful way – occasional sessions held after negotiating rounds do not count.  The only serious discussions that have been taking place are with big business.  We know this for a fact thanks to a Freedom of Information request from CEO, which found that of the European Commission's 130 "meetings with stakeholders" that took place earlier this year, 119 of them were with large corporates and their lobbyists. 

And for the European Commission to accuse CEO of "spin" is astonishingly hypocritical.  Here, for example, the headline that Clancy used for his post:

Anti-Trade lobby group CEO scores own goal on latest TTIP 'revelation'

But as CEO points out in its own rebuttal, it is not "anti-trade", as its actions prove:

Corporate Europe Observatory has been a part of an effort for years to develop an alternative trade policy. We’ve done that in collaboration with a broad variety of social movements and NGOs, and only a few weeks ago, we were part of launching the Alternative Trade Mandate, whose proposal is to make EU trade and investment policy work for people and the planet, not just the profit interests of a few

But there's a more important misdirection in Clancy's headline.  He is trying to frame the European Commission as pro-trade, and CEO as "anti-trade".  But what is under discussion here is not trade, it is the regulations that protect our health and safety, and help preserve the environment, for example.  

If the European Commission truly wanted a debate "based upon the facts and not the spin", it would acknowledge that TAFTA/TTIP is only tangentially about trade barriers, and mostly about national and European regulations.  And it would stop trying to re-define long-standing measures that protect the public, and which were drawn up in an open and democratic way, as "non-trade barriers", that need to be reduced or removed.

By adopting this language, it reveals it is engaged in an attempt at massive deregulation in favour of the transnational corporations it meets with so much, to the disfavour of the European public whose only role here seems to be to pay the not-inconsiderable wages of the European Commission and its staff.

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TTIP Update VIII

Even the European Commission admits that TAFTA/TTIP is not, primarily, a trade agreeement, because the trade barriers between the EU and the US are already so low that removing them will add little to the EU economy.  According to a report commissioned by the EU, the uplift in 2027 will be only 24 billion euros; that compares with the most favourable outcome touted by the report, which is 119 billion euros GDP uplift in 2027. However, that is predicated on massive deregulation – although the European Commission prefers to use the euphemism of "removing non-tariff barriers."

Actually, it doesn't really like that term either, because that reveals that the real agenda is deregulation.  Instead, it frames it as "regulatory harmonisation" – making the EU and US systems more compatible.  But there's a problem here: when the two systems flatly contradict each other – for example, over whether chickens can be washed in chlorine, or cattle injected with growth hormone – there is no possible "harmonisation": they are fundamentally incompatible. 

The US side is quite frank about this: among its many demands is that the EU dismantles its strict health and safety regulations and allows chlorine-washed chickes beef pumped up with growth hormones in EU supermarkets and thus on EU plates.  So the interesting question is how the European Commission will manage to pull this off, given the spotlight that is being shone on possible deregulation: how can it somehow accommodate the US demands without being seen to lower EU standards it has pledged to defend in the negotiations?

The latest leak from the TTIP talks gives us a clue.  Corporate Europe Observatory  has obtained a position paper on "regulatory coherence" [.pdf], which explains how "how TTIP could establish an effective system of transatlantic regulatory co-operation".  It lays out how the major problems of regulatory incompatibility – the chlorine chickens and growth hormone beef, for example – won't be solved now, under the full glare of public scrutiny, but will be shuffled off to the future, where a new and powerful body will be established to "smooth out" those tricky regulatory bumps.  Here's how it would work, as explained by  Corporate Europe Observatory:

Business interests on both sides of the Atlantic are pushing hard to get an institutional structure, an “oversight body”, into the agreement, mostly referred to as an EU-US “Regulatory Council”. This would be based on a set of rules for regulatory cooperation that would enable the parties to deal with their differences in a more long-term fashion, through procedures that will give business the upper hand. It might very well be that the final TTIP text will not include immediate concessions on public health and environmental regulation. But it could include an approach for the future, giving the basic message to citizens that regulation is none of their business, but first and foremost the business of business.

Regulatory cooperation is a long term project. It is meant to deal with differences that could not be settled at the negotiating table at the highest level and also to respond to new regulations as they occur. In the course of the negotiations, the parties will see to what extent they can agree on common standards, or recognise each others' standards as basically similar. But in those areas where this is not possible in the short term, they will set up procedures to deal with them in the future. The idea is to make TTIP a “living agreement”, not confined to what they can agree on in the first place, but a continuous process of ever deeper integration . That raises the prospect of the parties reaching a conclusion on even the most difficult issues, such as food safety. For corporations  from the EU and US, it raises hopes for better access to each other's markets including in sectors that meet obstacles today, and for that reason it is being promoted vigorously by the business lobbies on both sides of the Atlantic.

The key phrase there is "living agreement".  Actually, a better description would be "zombie treaty".  The idea here is that TAFTA/TTIP never dies, and is constantly re-negotiated behind closed doors by the same elite that are discussing it currently – that is, unelected politicians and big business.  Through the constant dripping of regulatory adjustment on the stone of EU laws in time, the awkward rough edges of health and safety, environmental and social protection, would be worn away.

Here's why this approach is problematic:

Business should have the right to be involved in the first stage when new regulation is prepared. And let us remember that when we are talking about regulation we mean rules intended to prevent the food industry from marketing foodstuffs which include dangerous substances, or to keep energy companies from destroying the climate, or regulations to combat pollution and to protect consumers.

New regulations should be investigated via a “regulatory compatibility analysis” (RCA).  During this investigation, seven questions would have to be answered. The questions are clearly tilted towards the interests of business, as they are mainly about the impact on business and on trade, including what the costs or savings would be to the private sector, how much regulatory authorities would “save” by down-scaling measures, and whether measures are outdated and should thus be eliminated or modernised. In other words, a business-friendly agenda is to constitute the backbone of regulatory assessments, if the business lobby has it its way.

As that makes clear, the Regulatory Council would embed not just business more deeply in the process of drawing up (and amending) regulations, it would allow US corporations to argue against EU practices from within the citadel.  This would give them an immense power to interfere with what are inherently European matters, and to subvert them for their own purposes.

They will be aided by the “regulatory compatibility analysis” (RCA).  That's because this is all about the impact on "business and trade": there is no mention of the adverse social impact, say, or the environmental harms, that new regulations might cause.  That's of a piece with the European Commission's current claims about TAFTA/TTIP: even if you accept the wildly implausible 119 billion euros GDP uplift in 2027, nowhere is any account taken of the negative externalities the requried changes will cause. 

For example, reducing the EU's high food, health and safety standards will inevitably cause more people to become ill, placing a greater burden on the European health system.  Similar, lowering environmental protections will lead to a degradation  of our surroundings. That has a real value to many people, even if it can't be quantified in monetary terms.  None of this is captured in the European Commission's TAFTA/TTIP propaganda.

Interestingly, the position paper on Regulatory Coherence has a couple of fig leaves.  First, we have the following, significantly stated right at the start:

The TTIP provides a historic opportunity for the EU and the US to substantially enhance regulatory co-operation. Such co-operation should be guided by both Parties’ right to develop and maintain, policies and measures ensuring a high level of environmental, health, safety, consumer and labour protection, fully respecting the right of each side to regulate in accordance with the level of protection it deems appropriate.

To which I can only say: well, yes... But having a "right" to develop and maintain those policies, and actually to use that right, are two quite different things.  In particular, once US companies are inside the regulatory development process, they will simply use its machinery – notably the “regulatory compatibility analysis” - to justify why certain regulations should or should not be adopted.  Those that would use that right to stand up for EU citizens – for example, the European Parliament – will have no way of doing so under the new scheme.  Moreover, as Corporate Europe Observatory explains:

Business will be awarded all kinds of rights to demand information, dialogue and negotiation on regulatory measures. If this proposal is adopted, a firm and effective “right for lobbyists to intervene and block” will be enshrined in an international agreement and in EU law.

Another advantage for the business lobby groups is the opaque nature of all the dialogues and procedures, many of which are set to take place well before any real public or democratic debate can take place.

…

If we add to this the fact that the Commission is the only EU body allowed to table legislative proposals, we have a recipe for disaster: the Commission would presumably be easily persuaded by US authorities or the US business lobby to refrain from tabling a proposal if it would cause a stir in the EU-US trade relationship.

The other fig leaf addresses some of these issues – in theory:

Each Party would undertake stakeholder consultations on regulatory and legislative measures in the areas that will be covered by this Chapter, according to their respective consultation framework.

Each Party should establish or maintain appropriate mechanisms for responding to enquiries from any interested person regarding any measures of general application covered by this Chapter. Upon request each Party should provide information on any existing o r proposed measure that the
other Party considers might affect the operation of this Agreement, regardless of whether it was notified.

Each Party should endeavour to identify or create enquiry or contact points for interested persons of the other Party with the task of seeking to effectively resolve problems for them that may rise from the application of measures of general application. Such process should be easily accessi ble,
time-bound, result-oriented and transparent. They should be without prejudice to any appeal or review procedures, which the Parties establish or maintain.

Sounds great, no?  Transparency and access for everyone.  Well, may be not.  What the Regulatory Council will create is simply another forum where the rich and powerful will find it easier to make their voices heard.  In particular, lobbyists will swarm to this new locus of power and ensure that public concerns are drowned out even more than already happens in Brussels.

The key thing to underline about the proposed Regulatory Council is that it is not some minor side issue, but central to the European Commission's approach to TTIP and achieving its long-term aims with it.  The European Commission probably knows that it could never get through an agreement that explicitly tried to level European protections downwards.  Instead, it will negotiate a far more reasonable document, with a few important exceptions. 

One is the investor-state dispute settlement (ISDS) mechanism that I've already at some length.  In fact, I think the European Commission would be prepared to "sacrifice" that chapter for the sake of getting TAFTA/TTIP through the European Parliament, given the growing outrage over the ability of ISDS to place corporation above nations.

The other exception is setting up the Regulatory Council.  That's because the Council will effectively allow the European Commission to postpone the more difficult deregulation and elimination of EU health and safety protection, and to spread it out over many years.  It will be able to wrap them up with other changes that the European Parliament is keen to pass, and so as a compromise the things that would never be accepted in the main TAFTA/TTIP document will slide through the legislative process in dribs and drabs.  Clever.

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TTIP Update VII

In my last TTIP update, I wrote about a fascinating document that revealed the European Commission's PR strategy for handling TAFTA/TTIP.  It was already possible to detect there a growing sense of panic among the Commission – a fear that they were losing control of the "narrative", and that remedial action was needed.

Since then, two documents have been released officially by the Commission, and they provide some extremely important information on the negotiations.  That's because they are concerned with what I have already flagged up as perhaps the most dangerous aspect of TAFTA/TTIP: corporate sovereignty, known officially as investor-state dispute resolution (ISDS).  The problem here is that this places companies at the same level as nations – indeed at the same level as the EU as a whole – and gives them extraordinary capabilities for dictating the contours of laws and regulations.

There are actually three documents – two official, and the letter accompanying them, which has been leaked.  The letter comes from Jean-Luc Demarty, who is Director-General of Trade, and was sent to Vital Moreira, chairman of INTA, the European Parliament's Committee on International Trade.  Moreira was a supporter of ACTA, and is probably best known for threatening to throw people out of a public meeting on that subject if they applauded.

Here's how the letter explains itself:

I take this opportunity to share with you a document explaining in more details our approach to investment protection and investor-State dispute settlement in general, and a factsheet explaining what we have achieved in this respect with Canada. We will distribute this document widely in the Parliament.

These are the two documents that have been made public.

We welcome the technical meeting scheduled to take place on 26 November on this matter. At the same time we believe we should find more such opportunities. In particular, we would welcome a dedicated debate.

ISDS was until recently an obscure and neglected aspect of TAFTA/TTIP, but as more people wake up to its dangers, and begin voicing their fears, so MEPs are naturally becoming aware too, and they are probably starting to wonder if it will be as politically toxic in the present agreement as the Internet provisions were in ACTA.  The European Commission is therefore desperate to try to convince members of INTA, which is the lead committee for TAFTA/TTIP, that ISDS is perfectly harmless, and that they really shouldn't pay any attention to the people raising serious questions about its relevance for this kind of deal.

The main document is called "Investment Protection and Investor-to-State Dispute Settlement in EU agreements" (pdf), and claims to be a "fact sheet": that is, it is trying to assert that everything it contains is a fact, and not just matters of opinion that can be argued over.  The introduction summarises nicely the structure of the document:

This outline explains why investment protection provisions are necessary and looks at lessons learned from how investment protection has worked in the past. It presents the concrete improvements made by the Commission to investment provisions in EU trade agreements and which will be included in future agreements.

The first section provides us with some information about investments around the world:

Investment is a critical factor for growth and jobs. This is particularly the case in the EU, where our economy is very much based on being open to trade and investment. Investment is key in creating and maintaining businesses and jobs. Through investment, companies build the global value chains that play an increasing role in the modern international economy. They not only create new opportunities for trade but also value-added, jobs and income. That is the reason why trade agreements should promote investment and create new opportunities for companies to invest around the world.

Of course, exactly the same arguments were used for TAFTA/TTIP's predecessors – NAFTA and KORUS.  And yet, as I noted in my previous TTIP update, NAFTA and KORUS actually *destroyed* around 680,000 and 40,000 US jobs respectively.  But let's just ignore that inconvenient detail for the moment, and continue exploring why TAFTA/TTIP absolutely must have corporate sovereignty included:

Companies investing abroad do encounter problems which - for a variety of reasons - cannot always be solved through the domestic legal system. These problems range from the rare, but dramatic, occurrences of expropriations by the host country by force, discrimination, expropriation without proper compensation, revocation of business licences and abuses by the host state such as lack of due process to not being able to make international transfers of capital.

Well, yes companies have indeed encountered all those problems, *in certain countries*, specifically those with poorly-developed legal systems.  But as I have asked before, is the European Commission seriously suggesting the the US might engage in "expropriations by the host country by force, discrimination, expropriation without proper compensation, revocation of business licences and abuses by the host state such as lack of due process to not being able to make international transfers of capital"?  I have to say, for all the US's many faults, none of those seems very likely.  But again, let us continue to listen to the European Commission's logic here:

Precisely because of these risks, provisions to protect investments have been part and parcel of all the 1400 bilateral agreements entered into by EU Member States since the late 1960s. The EU itself is party to the Energy Charter Treaty, which also contains provisions to protect investments and investor to state dispute settlement. Worldwide, there are over 3400 such bilateral or multiparty agreements in force containing provisions to protect investments. They provide guarantees to companies that their investments will be treated fairly and on an equal footing to national companies. By creating legal certainty and predictability for companies, investment protection is also a tool for states around the world to attract and maintain FDI [foreign direct invesment] to underpin their economy.

Notice how this moves from those 1400 bilateral agreements negotiated since the late 1960s – many with countries that do not have developed legal systems, and therefore might present some of the dangers described above – to the claim  that "investment protection is also a tool for states around the world to attract and maintain FDI to underpin their economy."  So what the "fact sheet" is asserting here is that without ISDS provisions in TAFTA/TTIP, poor old Europe just won't attract and maintain foreign direct invesment. 

Sounds pretty compelling you might think – after all, surely it's better to have that investment, and if Europe will only get it with ISDS, well so be it.  But there are some more of those inconvenient facts the the European Commission somehow omits to mention.  That's rather strange, because it's to be found on the European Commission's own Web site pages dealing with EU-US trade:

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.

EU and US investments are the real driver of the transatlantic relationship, contributing to growth and jobs on both sides of the Atlantic. It is estimated that a third of the trade across the Atlantic actually consists of intra-company transfers.

So it sounds like foreign direct investment from the US to the EU (and from the EU to the US) is not only present, but actually vastly more important than investment anywhere else in the world.  But how can this be?  After all, currently, there are *no* ISDS mechanisms between the EU and US (which is why the European Commission is insisting we create them in TAFTA/TTIP.)  According to the "fact sheet", this ought to mean that Europe is unable to attract and keep US investment.  And yet, by its own figures, the US invests three times more in the EU than in all of Asia.

In other words, the Commission's own figures demonstrate that ISDS has been completely unnecessary in the past: the US has been more than happy to invest many billions in the EU.  They also demonstrate that there is no reason whatsoever to bring it in now, since US companies are clearly not going to rip out all their investment in the EU just because they don't have access to ISDS mechanisms.  That's for the very simple reason that they don't need them: they have the extremely well-developed EU court systems to which they can – and do – turn.

So there would be no benefit in bringing in corporate sovereignty rights in TAFTA/TTIP, but there would be huge risks.  How do we know this?  Because the European Commission's very own "fact sheet" says so:

While the number of cases brought to arbitration is small compared to the hundreds of thousands of investment decisions made daily benefiting both the host countries and companies investing in them, some of the most recent cases brought by investors against states have given rise to strong public concerns. The main concern is that the current investment protection rules may be abused to prevent countries from making legitimate policy choices.

Amongst the cases that have caught the public attention are the on-going cases Vattenfall vs. Germany and Philip Morris vs. Australia. The Swedish energy company Vattenfall has brought a claim against the German government (under the Energy Charter Treaty) after its decision in 2011 to significantly speed up the phase out of nuclear power generation. The US owned company Philip Morris has challenged the government of Australia for the latter’s decision to ban brand names on cigarette packs (the 'plain packaging' measure) for reasons of public health.

...

The public concerns raised surrounding these cases are legitimate and need to be addressed.

So the Commission itself recognises that the concerns are legitimate and need to be addressed.  And this is how it proposes to address them:

The Commission’s aim i[s] to bring improvements on two fronts (1) to clarify and improve investment protection rules and (2) to improve how the dispute settlement system operates. Such improvements will address the concerns raised that investment protection rules may negatively impact states’ right to regulate. They should, amongst other things, ensure that companies cannot successfully bring claims against states’ regulatory policies when these are taken for public policy
reasons.

Let me emphasise here, as I did before, that these things are simply what the European Commission *wants* to do – not what the US will agree to.  The other document released with the "fact sheet" is an attempt to bolster the Commission's case: it's called "EU- Canada CETA : main achievements" (pdf).  It reveals – for the first time – what the still-secret CETA contains in terms of ISDS.  But of course what happened with Canada has very little bearing what will happening with the US. 

Where the EU was able to bully the small and relatively weak Canada into accepting pretty much everything the European Commission wanted, that is clearly not the case with the US.  Indeed, the Commission is so conscious that it is the weaker party in the TAFTA/TTIP negotiations, it was forced to address this in the PR document I referred to at the beginning of this post.  Here's what it says:

Many of the fears about what TTIP may represent are linked to a perception that the EU is not in a sufficiently strong position to engage with the United States. Some of this also stems from the fact that the EU is currently in a weaker economic position than the US and that therefore we need TTIP more than they do. We need to make clear that this is not the case, that despite the crisis the EU remains the world's largest market and is as such an indispensable partner for any trading economy (i.e. both sides have major economic interests in these negotiations). We must also make clear that we have as strong a track record as the US in trade and other negotiations, including with the US itself.

Methinks the lady doth protest too much...

But this delusion about being an economic equal of the US, and thus able to force its ideas of how to revise ISDS on a recalcitrant negotiating partner that is used to getting its own way, is actually irrelevant.  The key point is that ISDS simply has no place whatsoever in TAFTA/TTIP.  To see why, we need to go back to the opening of the corporate sovereignty "fact sheet", which states:

Investment protection provisions, including investor-state dispute settlement are important for investment flows. They have generally worked well. However, the system needs improvements. These relate to finding a better balance between the right of states to regulate and the need to protect investors, as well as to making sure the arbitration system itself is above reproach e.g. transparency, arbitrator appointments and costs of the proceedings.

As we've seen, investment protection provisions are simply irrelevant when it comes to EU-US trade, so that argument can be discarded.  But what's really disturbing is the idea that TAFTA/TTIP should be about

finding a better balance between the right of states to regulate and the need to protect investors

That is, the European Commission believes that these have something to do with each other, as if the former – the right to regulate the workings of a society – has to be abrogated in order to protect the latter – investors and their money.  That is not just wrong, it is downright insidious: it places the rights of investors at the same level as the rights of citizens; it asserts that the public must necessarily give up some of its own hard-won health, environmental and social protections in order to "protect" the ability of companies to make profits. 

This pernicious notion is why ISDS is not fixable in any way, despite what the European Commission would have us to believe.  Its very presence in a trade agreement is an affront to the citizens in whose name it is supposedly being negotiated, and an affront to democracy itself.  ISDS must go.

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