TTIP Update XXXII

The most important news of the last few days is undoubtedly that the European Commission's consultation on ISDS in TTIP has been extended by a week until 13 July - for full details on how to reply, see previous update.  Other than than, what is striking is how TTIP is moving into the mainstream, with developments across the entire political and economic spectrum.

For example, over 100 organisations from 17 EU member states have expressed support for organising an European Citizens' Initiative (ECI) on TTIP:

Organisations from all across Europe are currently gearing up for a European Citizens’ Initiative (ECI) with the aim of repealing the European Union’s negotiating mandate for the Transatlantic Trade Investor Partnership (TTIP) and not concluding the Comprehensive Economic and Trade Agreement (CETA). The registration of the ECI is planned for July. The collection of signatures is due to start in September 2014.

It is highly significant to see CETA here as well as TTIP - a recognition of the fact that allowing CETA to be ratified with an ISDS chapter would effectively allow US companies to sue Europe using Canadian subsidiaries as a proxy.  Here's what an ECI is and does:

An ECI can request a legislative act from the European Commission and force a hearing at the European Parliament. For an ECI to be successful, at least one million signatures must be collected. At the same time, country-specific quorums must be achieved in at least seven EU member states. In Germany, for example, the quorum will be 72,000 signatures. France has to collect 55,500 signatures and the United Kingdom and Italy need 54,750 signatures. Estonia, Malta, Luxembourg and Cyprus have to collect 4,5000 signatures. The level of the quorum depends on each country’s number of deputies in the European Parliament. The most notorious ECI so far is “right2water”. It led to the exclusion of the liberalisation of water supply from the scope of the EU directive on concessions.

Clearly, achieving those numbers will require considerable effort, but the success of the right2water ECI shows that it can be done.  Moreover, resistance to TTIP is growing rapidly, and brings together groups from the most diverse areas, so the pool of support is probably even larger than that for water as a basic right.

At the other end of the political spectrum, the person likely to be the next President of the European Commission, Jean-Claude Juncker, was quizzed today by the Greens in the European Parliament, who are deciding whether or not to support him.  Here's what he said when asked about the inclusion of ISDS in TTIP:

Juncker replied that he does not understand why great democracies do not have confidence in their own judicial systems, and that he personally does not see the benefits of ”private courts”, which does not need to justify their decisions. ”I believe in the rule of law, and the application of the rule of law”, Juncker concluded.

TTIP has assumed such importance in the European Union, that Juncker had earlier made it one of just five priorities that he promises to set himself.  Here's what he wrote [.pdf]:

under my presidency, the Commission will neg otiate a reasonable and balanced trade agreement with the United States of America. It is anachronistic that, in the 21st century, Europeans and Americans still impose customs duties on each other’s products. These should be swiftly and fully abolished. I also believe that we can go a significant step further in recognisin g each other’s product standards or working towards t ransatlantic standards. However, as Commission President, I will also be very clear tha t I will not sacrifice Europe’s safety, health, social and data protection standards on the altar of free trade. Notably, the safety of the food we eat and the protection of Europeans' personal data will be non-negotiable for me as Commission President.

Talking of sacrificing standards, the US Senate Finance Committee on trade enforcement  has held some interesting hearings in which representatives of US agricultural industries made it clear that the European Commission's statements that food standards would not be lowered were simply "not an acceptable position". The TTIP site put together by the European  Greens has a good explanation of what is likely to happen if the Commission caves on this:

allowing US lobby groups like the National Chicken Council to challenge EU regulations as part of TTIP, could result in sub-quality produce entering the EU market; an inferior, but cheaper, product to buy. This in turn risks undermining EU producers who could be priced out of the market. The knock on effect of this alone will be the downward pressure on regulations, as EU farmers will call for changes to allow them to compete with these cheaper US imports. Hence, the inferior product will reign. Our regulators and the Commission should be doing all in their power to resist such moves by industry.

That's true for all sectors: if cheaper, lower-quality US products are allowed into the EU, European manufacturers will be unable to compete, and so will either go bankrupt or - more likely - lobby hard for EU standards to be lowered in order to create a "level playing field."  The net result will be an inevitable race to the bottom.

Despite swearing blind that it won't, the European Commission may well capitulate on this - after all, that's what happens in tough negotiations.  You state you absolutely won't compromise, but what you really mean is you are going to extract a high price for your capitulation.  The problem is that we already know of two areas where the European Commission is pushing hard for things that the US is also swearing blind that it won't do - which also means that it will extract a high price for doing so, like lowering EU health and safety standards.

One concerns energy.  Here's what the EU Greens' blog post has to say about a recent leak here (also includes the full document):

The Washington Post has leaked a non-paper by the European Union regarding the Energy and Raw Materials chapter of TTIP. The letter, dated May 27 2014, details efforts by the Commission to secure commitments from the US to export natural gas and crude oil to Europe, the latter of which has not been available for export since it was banned by Congress in 1975.

Such a move has alarmed environmentalists on both sides of the Atlantic, who fear that such an deal as part of TTIP will lock both sides into increased use of fossil fuels, driving up harmful production methods such as fracking in the US, and making it more difficult for both regions to curb their greenhouse gas emissions.

Here's why the US will extract a high price for agreeing to this:

US Senator Edward J. Markey (D-Mass.) released a statement on Tuesday criticising the move saying that “attempting to use a transatlantic trade agreement to scuttle established U.S. law prohibiting the export of America’s oil would be a titanic mistake for our consumers, national security, and energy policy. The Middle East is in turmoil. Gas prices are sky high in the middle of driving season. And we still import millions of barrels of oil a day. Exporting our crude oil is not the answer for anyone but oil companies."

This secret move is particularly blameworthy, because it goes against the European Commission's own research that analysed the environmental impact of TTIP [.pdf]:

[TTIP] is estimated to lead to a total global increase of 4 and 11 thousand metric tons under the two different experiments respectively [less ambitious and ambitious]. CO2- emissions are expected to increase in the EU and US by around 3 and 4 thousand metric tons, respectively. On the other hand, emissions are expected to decrease somewhat across some other countries. Looking at the percentage increase, the estimated changes are shown to be very small, being 0.02 per cent in the
less ambitious case and 0.07 per cent in the ambitious case. Depending on future changes in the coverage of emissions trading in the EU (increased and more binding coverage), and possibilities for future introduction of such a scheme in the US, the net effect would then be even smaller than
reported here.

As that makes clear, the modelling takes no account of the possibility that the US will export oil and gas directly to the EU - something that is likely to increase emissions drastically, especially if it slows down the move to renewables.

The other leak concerns financial services, analysed here by Corporate Europe Observatory:

If the EU has its way, a final agreement between the EU and the US to establish a free trade and investment agreement the Transatlantic Trade and Investment Partnership (TTIP) will weaken regulation and raise obstacles to much needed reform of the financial sector. That is the conclusion after the leak of an EU proposal for so-called “regulatory cooperation” on financial regulation.1 tabled by the EU in March 2014. Regulatory cooperation is a continuous process of ironing out disagreements and differences between the two Parties to ensure agreement on what constitutes legitimate regulation – which in this case, would serve the interests of the financial industry. In the document, the EU suggests a number of mechanisms that will both scale back existing regulation, and prevent future regulation that might contradict the interests of financial corporations from both sides of the Atlantic. The leak follows news that EU negotiators have increased political pressure on the US to accept negotiations on “financial regulatory cooperation", which the US negotiators have so far refused.

This shows that the US is likely to demand extremely painful concessions from the EU if it were to contemplate accepting the Commission's proposal.  The end-result would be a lose-lose situation: losses for US consumers thanks to weakened oversight of the financial industry, and losses for EU consumers thanks to weakened health and safety.   And for those who like to claim that such compromises can't possibly be made, it's worth bearing in mind that if they aren't, there will be almost nothing major in TTIP, and only a tiny fraction of the already small gains that are predicted to flow will be realised.  In other words, the EU and US have painted themselves into a corner, where the only way out is to make extremely broad and bad concessions in a desperate attempt to justify their earlier exaggerated promises.

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TTIP Update XXXI

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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TTIP Update XXX

As well as all the developments I discussed in the previous TTIP update, plenty has been happening recently in the hotly-contested area of investor-state dispute settlement (ISDS).  The United Nations Conference on Trade and Development (UNCTAD) has published another of its informative reviews of developments in the ISDS field [.pdf].  This edition is particularly welcome since it focuses on the interaction between the EU and US in this area.  Here are some of its findings:

16 [ISDS] cases have been initiated against the US to date, among those not a single one originated from an investor from a EU Member State.

EU Member States have been respondents in 117 known cases, of which almost a quarter faced by one country (the Czech Republic). Several EU countries (e.g. Austria, Denmark or Finland) have faced no known ISDS claim to date. 88 of the 117 cases are intra-EU disputes.

To date, there are few (nine) known claims in the EU-US relationship. All of them were filed by US investors, constituting about seven per cent of all ISDS claims filed by US investors.

The nine cases also represent close to eight per cent of all cases faced by EU Member States (or close to one third, if intra-EU disputes are disregarded).

All nine cases were brought against “new” EU Member States.

That shows that already the EU suffers disproportionately from ISDS cases; including an ISDS chapter is likely to open the floodgates of US companies suing across the whole European Union.  One of the most interesting facts in the new report is the following:

The US-EU relationship is the largest in terms of the amount of FDI [foreign direct investment] stock held by investors from these countries in each other’s territories. 10 Investors from EU Member States hold a total of 1.6 trillion USD of FDI stock in the US, which represents 62 per cent of the total inward US FDI stock. 11 Investors from the US hold a total of 1.9 trillion USD of FDI stock in EU Member States which represents around 38 per cent of the total inward FDI stock in the EU.

That is, even without ISDS in place between the US and most of the EU (the US currently has agreements including ISDS with Bulgaria, Croatia, the Czech Republic, Estonia, Latvia, Lithuania, Poland, Romania and Slovakia), the total transatlantic investment is 3.5 trillion euros - much more than when I last looked, which suggests that it is continuing to rise rapidly.  This demonstrates beyond any doubt that ISDS is simply unnecessary for the EU and US: investment is already flourishing on an unprecedented scale.

Bringing in ISDS would therefore have no benefit for Europe - but plenty of dangers.  An important post by Ante Wessels over on the FFII site explores one aspect I hadn't seen before: the fact that the ISDS system is inherently biased in favour of the US:

Investor-to-state dispute settlement (ISDS), the most controversial element of the proposed trade agreement with the US, has characteristics of a rigged system. ISDS gives the US an unfair advantage, we can not expect EU companies to win ISDS cases against the US.

Here's why:

The appointment of arbitrators is not neutral. One arbitrator is appointed by each of the disputing parties. In which supreme court can parties bring their own judge? The third arbitrator, the presiding arbitrator, is appointed by agreement of the disputing parties.

The US appoints the president of the World Bank. This president

- is ex officio chairman of the International Centre for Settlement of Investment Disputes (ICSID) Administrative Council,
- proposes the ICSID secretary-general,
- appoints all three the arbitrators in appeal cases under ICSID rules.

The secretary-general of ICSID

- appoints the third arbitrator if the parties can not agree on the third one,
- will decide over conflicts of interest. (ICSID, articles 5, 10, 38, 52 and Commission, 2014b, Table 8, article x-25.10)

The ISDS system gives the US an unfair advantage. Adjudicative processes have to be free of reasonably perceived bias. This is not the case with ISDS.

The rest of the post provides compelling evidence that this bias is already visible in the results of previous years' ISDS cases, where the US always seems to win.  

Against that worrying background, it becomes even more vital to respond to the European Commission's consultation on ISDS.  The deadline for replying is July 6, and I'll be writing an update detailing my own response soon.  In the meantime, here's what other people think about ISDS and are planning to send to the Commission - you may find them useful in framing your own.

First, a splendidly robust response from the Trade Union Congress, which states quite bluntly:

The TUC's response to this consultation will not follow the specific questions outlined, as they present ways to improve ISDS and investment protection measures in TTIP. The TUC, like the ETUC and AFL-CIO, opposes any form of ISDS in TTIP.  Our response, therefore, will detail why ISDS is unnecessary in trade agreements and poses a serious threat to public services and states’ ability to legislate in line with citizens' interest and wishes.

After that wonderful start, it goes on to offer cogent reasons why ISDS is simply superfluous, like this one: 

The fact that the UK has not been sued through an ISDS procedure in the past is also not a credible argument for its inclusion in TTIP.  This merely shows that the British governments have refrained from signing investment treaties with large capital-exporting states. It can be seen that when Canada, another country not previously subject to ISDS proceedings, signed the North American Free Trade Agreement (NAFTA) with USA and Mexico, they found themselves the subject of several ISDS cases, several of which were successful.  Canadian companies also used ISDS to sue the US government successfully through ISDS provisions in NAFTA.

It also explains why ISDS is "inequitable and undemocratic:

Inequality lies at the very foundation of ISDS as it privileges foreign investors over any other economic actors - domestic investors or interest groups such as consumers or workers – by giving them the right to access special courts for pursuing claims of expropriation.

It notes that ISDS is a particular danger for the UK:

In the UK, there is a danger that if a future government were to bring parts of the National Health Service back into public ownership by overturning the Health and Social Care Act (2012), it would be prone to challenge through ISDS by American companies that have significant investment in the NHS.  In addition, ISDS mechanisms could be used by US companies to litigate against tighter regulation of the UK’s growing for-profit education sector.

It's really well-worth reading the rest of the TUC response, which is in a similar vein.  It's great to see, not least because it shows that trade union organisations have woken up to the very real threat that ISDS represents for their members.

Next, an equally fine response to the unnecessary and frankly rather dishonest EU ISDS consultation, this time from the Trade Justice Movement (TJM).  You can read the detailed, ten-page question-by-question response [.doc] - indeed, I urge you to do so, if you can - but here's TJM's summary of its main points:

Approximately 70% of global investment happens without this kind of [ISDS] investment protection.

There is no valid reason to transfer business risk to communities by making governments liable. Transferring the risk to governments causes 'policy chill' whereby governments resist passing policies in case they get sued. For example: governments thinking of introducing plain packaging to cigarettes are watching the Philip Morris cases against Uruguay and Australia carefully: the company is arguing that the legislation is a breach of their intellectual property rights, the countries could face million-dollar compensation bills.

There is no reason to give international investors greater rights than domestic investors: both kinds of investors can access domestic courts, only international investors can access the private tribunals associated with ISDS.

Businesses should protect against risk via insurance: a scheme already exists via the World Bank. This could be supported by mediation and state-to-state diplomacy where necessary.

Finally, I need to point people to a new site that has been set up with the rather self-explanatory name "No 2 ISDS", which explains its purpose as follows:

The arguments against investor-state dispute settlement have been known for many years. Despite this, the European Commission has attempted to silently push it through in its ongoing trade negotiations with the US. It was only after sustained and substantial protests by citizens, trade unions and civil society groups that the European Commission launched a public consultation on the mechanism. However, this consultation - that was initially sold by the European Commission to the public as a way to involve citizens, trade unions and civil society - turns out to be a mere caricature.

First of all, the consultation does not ask the public whether they want investor-state dispute settlement or not in TTIP. Furthermore, ordinary citizens are overwhelmed with a highly technical and lengthy questionnaire. To make matters worse, the public are forced to exclusively stick to this electronic questionnaire that is not very user-friendly. Letters or E-Mails are not permitted. This contradicts the very essence of public consultations and makes it highly problematic from a democratic point of view.

For all of these reasons, AK EUROPA (the Brussels office of the Austrian Federal Chamber of Labour), the ÖGB Europabüro (the Brussels office of the Austrian Trade Union Federation), and Friends of the Earth Europe (the largest European environmental grassroots network), wish to offer guidance to anyone who would like to speak out against investor-state arbitration and secretive, opaque trade negotiations taking place behind closed doors.

We believe that special privileges for investors should be excluded from TTIP. We therefore also reject the Commission’s proposal to ‘improve’ the currently foreseen investor-state dispute settlement system. The only viable solution is: NO INVESTOR-STATE DISPUTE SETTLEMENT AT ALL!

It is of fundamental importance that we send a clear and strong message to the European Commission. Take part in the consultation and help us push back unjustified privileges for private investors at the expense of people and societies as a whole!

They're right, of course, and the good news is that this site (also available in French and German) helps people do that.  It does so by running through the questions found on the Commission's ISDS consultation, explaining in very clear terms what the issues are, and offering sample answers to those questions.

Once you've had a glance at these, you can then provide your own answers for the EU's online form, or wait a little longer for my comments too.  Either way, it is really important that as many people as possible reply to this consultation so that the European Commission cannot claim that nobody really cares about ISDS, and that it can therefore negotiate as it wishes.  This is an important opportunity to make our voices heard: let's take it.

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