Earlier this week, EU Commissioner for Trade Cecilia Malmström presented a set of proposals for reforming investment protection standards and the dispute settlement mechanism ISDS (investor-to-state arbitration). The Seattle to Brussels Network (S2B), of which Both ENDS is a member, thinks that Malmström’s proposed adjustments are not far-reaching enough. They will not significantly reform the ISDS system. The organisation has published an analysis report on this.
Last week, the European Commission presented a proposal to reform the Investor-to-State Dispute Settlement (ISDS), which forms part of the draft text for Trans-Atlantic Trade and Investment Partnership (TTIP) between the EU and the USA. Yet, it is fraught with problems, as those few adjustments do not even address the heart of the ISDS-problem.
Almost 150,000 organisations and individuals who participated in a public consultation on the Transatlantic Trade and Investment Partnership (TTIP) of the European Commission, made a strong statement. According to EU's own reporting, 97% does not want the controversial investor-to-state-dispute settlement (ISDS)-mechanism to be part of the trade deal. Worldwide, more than 3000 international investment agreements with ISDS exist, of which the Netherlands has more than 90s - predominantly with developing countries. Many of these countries have suffered damage caused by ISDS. This has started to set off the alarm bells in Europe and should definetely also have consequences for the already existing agreements.
Just before being elected president of the European Commission, Jean-Claude Juncker from Luxemburg, has spoken out against ISDS. The ‘Investor to State Dispute Settlement’ would be a part of the proposed EU-US trade agreement TTIP. It would deal with conflicts between investors that feel disadvantaged and states they hold responsible. Those conflicts would not be taken to regular courts but to a special dispute settlement tribunal. Mr Juncker is clearly opposed to such a provision.
Thanks to the negotiations about TTIP, the public debate about bilateral investment treaties (BITs) is slowly underway. Especially the ‘Investor-to-State Dispute Settlement Mechanism’ (ISDS) of TTIP threatens to lower the norms to protect people and the environment. BITs make use of very controversial arbitrage systems (ISDS), which enable investors to bypass the national court to sue governments for their national policies and laws.
Recently, India has terminated its bilateral investment treaties (BIT) with 57 countries, including the Netherlands. This means Dutch companies in India, and Indian companies in the Netherlands, can no longer make use of the controversial arbitration procedures called ISDS. According to Burghard Ilge from Both ENDS, India's action is a step in the right direction. However it is a missed opportunity that the Dutch government did not agree with this termination. This way, old investments stay protected for 15 years under the former BIT.