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Professor Schepel and 120 colleagues speak out against planned investment protection provisions in TTIP

17 July 2014

A group of 120 academic experts has spoken out against planned provisions on investment protection and investor-state dispute settlement (ISDS) in the Transatlantic Trade and Investment Partnership (TTIP).

The planned Investment Chapter would allow US investors to bring claims for damages against EU Member States, and vice versa, directly before international arbitration tribunals, bypassing domestic courts. Investment treaties have been used worldwide by businesses to complain about lost profits resulting from measures such as plain packaging requirements for tobacco products, sovereign debt restructuring, and environmental regulation. Where most Investment Treaties are signed between traditional capital exporting nations and developing countries, the degree of economic interdependence between the EU and US means that the planned ISDS deal would extend the reach of the investment arbitration regime to levels of an entirely new order of magnitude.
The experts, from leading universities in Europe and worldwide, have contributed to a public consultation which the European Commission launched in the face of strong public interest and growing concern about the issue. The experts criticise the Commission for failing to make a plausible case for the need for investment protection provisions in TTIP in the first place, and for excluding views on their desirability from the consultation exercise.

They do however welcome the Commission's recognition of the many serious flaws and shortcomings of the international investment arbitration regime as it has developed over the last few decades.

Professor Harm Schepel of the University of Kent's Law School and Brussels School of International Studies said: 'In launching the consultation, European Commissioner for Trade Karel De Gucht acknowledged problems with the system and announced the ambition to 're-do' investment law, make the system 'more transparent and impartial', 'build a legally water-tight system', and 'close these legal loopholes once and for all'. These objectives may be laudable, but, as we have shown, the Commission's approach falls far short of achieving them.'

Specifically, the scholars find that the proposed text, amongst other shortcomings;
a)    Allows for unwarranted discretion for arbitration tribunals in the application of various 'necessity' tests;
b)    Fails to exclude acquisitions of sovereign debt instruments from the scope of the Treaty;
c)    Allows anyone with a substantial business activity in the home state who holds  any 'interest' in an enterprise in the host state to bring a claim;
d)    Fails to spell out legal duties of investors in host states;
e)    Fails to control the expansion of investment arbitration to purely contractual claims;
f)    Fails to protect the 'right to regulate' as a general right and as a component of the Fair and Equitable Treatment (FET) and Expropriation standards of protection of investors;
g)    Fails to further the stated principle of favoring domestic court proceedings, and
h)    Fails to regulate conflicts of interest in the arbitration process.

Professor Schepel added: 'Unable to make a plausible case for the need for an investment deal with the US, ISDS supporters have instead suggested that the proposed provisions in TTIP may serve as a 'Gold standard' for the European Union's use of its new competences
regarding FDI under the Common Commercial Policy. Under the proposed text, this is a misleading claim. We hope the current controversy over ISDS in TTIP will prompt broad and serious debate about a sensible EU policy on existing and new investment Treaties. Investment law is far too important to leave to just trade officials and investment lawyers.'

The submission was written by Peter Muchlinski (SOAS School of Law), Horatia Muir Watt (Sciences Po Law School), Harm Schepel (Kent Law School, University of Kent), and Gus van Harten (Osgoode Hall Law School).

The text and a full list of signatories can be found here:  https://www.kent.ac.uk/law/isds_treaty_consultation.html

 

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