EU proposal for investor-to-state dispute settlement (ISDS) in TTIP does not hit the heart of the ISDS-problem
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.
Most of the adjustments were already suggested at the beginning of this year, which mainly address the appointment of judges and the procedures for running court cases. The most important improvements are made within the domain of transparency . It furthermore suggests renaming ISDS for Investment Court System (ICS).
The heart of the ISDS-problem
ISDS is a controversial dispute settlement mechanism, whichenables investors to bypass the national court to sue governments for their national policies and laws. The fundamental problems with ISDS are as follows:
ISDS allows foreign companies to bypass domestic law by going directly to a special, international court, and to demand financial compensation for ‘unfavourable’ government regulations.
ISDS discriminates against a country’s own citizens and companies. It does not only give foreign investors access to special tribunals and financial compensation, but it also applies double standards.
ISDS provides foreign investors and big companies with a powerful instrument to pressure governments, and to demand compensation for regulations that were approved democratically to protect the general interest
Also, the proposal even denies its own EU-consultation, which indicated that 97% of the voters reject the ISDS. What is more, EU Commissioner Malmström maintains that CETA - the bilateral investment treaty between EU and Canada - will not be adapted, despite the fact that the treaty is not even signed yet. This clearly undermines any possible improvement of ISDS in TTIP, because the majority of American companies can also file a complaint against the EU and its member states through CETA.
Furthermore, we see that different forms of ISDS are already being used to pressure countries in the ‘South’ . The use of ISDS (or ICS) in a ‘Western’ trade agreement, such as TTIP, will continue that approach while also extending it to the ‘North’.
Even less room for maneuver than in American ISDS-treaties
Two articles (Article 3.4 and 7) of the proposal make possible that agreements made elsewhere (e.g. a secret contract) acquire legally binding force. In consultation with the Dutch government and the EU Commission, Both ENDS has repeatedly stressed the big problem of the so-called ‘umbrella clauses’. That is the reason why the USA removed such clauses from the draft text for the ISDS agreements in 2012. Nonetheless, big companies like Chevron are lobbying to reinstate these clauses in treaties like TTIP (see Chevron's TTIP lobby letter). And the new EU proposal actually meets their wishes.
Burghard Ilge of Both ENDS: “What use are these new proposals that call for more transparency, if you do not even know which rights that agreement intends to protect? And better lawyers seem to be a good start, but what is the point if the applicable laws are just not right?”
 The EU proposal goes beyond the minimum standards of the UNCTRAL transparency regulation of the Mauritius treaty (a treaty that is still not signed by the Dutch government, by the way)
 For more information about the problems with ISDS: ‘To change a BIT is not enough’ (Both ENDS, September 2015)
 See here for the contribution of Both ENDS in the consulation about ISDS in TTIP (13 July 2014)
Read more about this subject
News / 22 November 2021
Export support – and especially that to fossil projects – has been in the spotlights quite often recently. This is a positive development, because the Netherlands alone provides fossil export support worth 1.5 billion euros per year. At the climate summit in Glasgow, the United Kingdom launched a statement promising to stop providing export support to fossil projects by the end of 2022. After having denied at first, the Netherlands decided to join the statement after all – which now has already been signed by nearly forty countries and financial institutions.
External link / 17 November 2021
Julio Bichehe Erneste of Farmers Union Cabo Delgado Mozambique (UPC) on a side event of COP26 in Glasgow, speaking about the negative impacts of export support for fossil fuel projects for local people and their enrironment, and about the need to support renewable energy projects instead.
News / 8 November 2021
Both ENDS and SOMO condemn violence against Indigenous community near the Barro Blanco dam in Panama
Members of the Indigenous Ngäbe Buglé people were brutally attacked by Panamanian police on Friday 29 October 2021 from a parcel of private land near the FMO-financed Barro Blanco hydroelectric dam. The victims, all members of the anti-dam movement M22, had peacefully occupied the land after their protest camp got dismantled in July this year.
News / 8 November 2021
Today, the Netherlands announced that it will join a leading group of countries, including the United States, Canada and Italy, which declared that they would stop international support for fossil energy projects. At the day of the launch of the declaration at the climate summit in Glasgow on the 4th of November, the Netherlands had no intention of joining, but because of pressure from civil society and political parties, the responsible ministries decided to sign after all. Both ENDS, together with organizations at home and abroad, has been pushing for this for years, and we are very happy with this step. We will of course continue to monitor developments.
Event / 6 November 2021, 13:00 - 15:00
This Saturday, November 6, people all over the world will take to the streets again to make a stand for the climate. In the Netherlands, the Climate March will take place in Amsterdam, and of course Both ENDS will join. We call on everyone who is concerned about the climate, to walk along with thousands of like-minded people and make this the largest Climate March in history!
Event / 4 November 2021, 16:45 - 18:00
UNFCCC COP 26 side event ‘Aligning export finance with the Paris Agreement: high time to phase out fossil fuels’
Many countries heavily support fossil fuel investments abroad through their export credit agency (ECA). This contributes to carbon lock- in, whereby companies or even countries commit themselves to a certain amount of greenhouse gas emissions for the lifetime of the infrastructure — oftentimes years or even decades. This seriously delays the transition to renewable energy sources, and is certainly not in line with Art. 2.1c of the Paris Agreement.
Highlighting the impacts caused by export finance in the global South, this side event will provide concrete recommendations to decarbonize export credit agencies.
Event / 4 November 2021, 13:15 - 14:30
With gender-responsiveness a work in progress, current climate funds are hardly accessible for women-led community based organizations. While these groups lack access to finance and decision-making, they already lead bold holistic gender-just climate solutions and initiatives worth funding support.
Follow this event live on YouTube!
Publication / 2 November 2021
External link / 31 October 2021
In this short video, Niels Hazekamp of Both ENDS talks about how the Netherlands stimulates projects related to the fossil sector abroad through its export credit agency (ECA) Atradius DSB. The ECA provides export credit insurance for very large-scale and high-risk activities abroad. About two thirds of this export support (worth around 1.5 billion euros per year) is going to the fossil fuel sector. Absurd, at a time when the whole world has to make the transition to sustainable energy. Our country should not support the fossil, but the renewable energy sector with such guarantees, and grab that chance of 1.5 billion!
Press release / 26 October 2021
Today, on the eve of the UN Climate Change Conference, COP26, the fossil fuel divest-invest movement released a new report that details how institutions representing an unprecedented total of EUR 33.7 trillion worth of assets have now committed to some form of fossil fuel divestment, a figure that's higher than the annual GDP of the United States and China combined.
Publication / 26 October 2021
Event / 25 October 2021, 14:30 - 18:00
News / 24 October 2021
On Friday October 22nd, six staff members of our partner organisation Africa Institute of Energy Governance (AFIEGO), including its director Dickens Kamugisha, were arrested in Kampala, Uganda. AFIEGO is one of four Ugandan organisations involved in several legal cases against the oil project, including the one against TotalEnergies in France and in the East African Court of Justice.
News / 15 October 2021
The Dutch export credit agency Atradius DSB is not aligned with the Paris Climate Agreement; on behalf of the Dutch State, it continues to strongly support investments in fossil fuels. This is the conclusion of a report by German research agency Perspectives Climate Research (PCR), in which the export credit agencies of the Netherlands and Japan are measured in terms of their climate ambitions and alignment with the Paris Agreement.
Press release / 11 October 2021
New website shines a light on the extent of export credit agencies' support for fossil fuels
Each year governments provide tens of billions of dollars in financial support to fossil fuel projects via export credit agencies (ECAs). Today, 18 civil society groups from 14 countries are launching a new website to shine a spotlight on how ECAs are undermining global climate goals. In advance of the November UN climate conference, the organisations are calling on governments around the world to end public financial support for coal, oil and gas projects, including support from ECAs. Ending this support and redirecting financial resources to sustainable alternatives is essential for a just energy transition.
News / 30 September 2021
About 75% of Kenyans earn all or part of their income from the agriculture sector which accounts for 33% of the country's Gross Domestic Product (GDP). However, agricultural productivity has stagnated in recent years. Various factors have contributed to low agricultural productivity, including an overall decline in soil fertility because of the continuous removal of nutrients by crops; poor farming practices; land degradation and overuse/misuse of synthetic fertilizers that acidify the soil. The solution against these problems is: agroecology.
News / 27 September 2021
In times of ecosystem degradation, deforestation and climate change, rural communities often struggle to make a living in a healthy and autonomous way. One of the solutions to counter their problems is Analog Forestry, a sustainable practice promoted by many of Both ENDS's partners. We spoke to Carolina Sorzano Lopez*, Analog Forestry trainer from Colombia for the International Analog Forestry Network (IAFN), and Luz Marina Valle*, a local Analog Forestry promotora in her community of El Jocote in Northern Nicaragua, to explain to us the advantages of Analog Forestry.
News / 17 September 2021
About one in every six people, particularly women, directly rely on forests for their lives and livelihoods, especially for food. This shows how important non-timber forest products (NTFPs) and forests are to ensure community resilience. Not only as a source of food, water and income, but also because of their cultural and spiritual meaning.
All around the world small-scale farmers are using sustainable and inclusive methods to produce food. Working together with nature and each other, they provide their families and communities with sufficient and healthy food. But their production methods are under pressure from large-scale agriculture and the globally dominant system of industrial food production. Together with our partners, Both ENDS is trying to turn the tide in favour of sustainable, local practices that are mostly known as 'agro-ecological' or 'nature-inclusive'. Why are we focusing on these methods, ? Agro-ecological practices are climate-proof and inclusive and increase the opportunities for communities around the world to produce their food sustainably.
Event / 23 August 2021, 13:00 - 14:00
What do we mean when we say the 'politics of water'? How are the distribution of water and the access to water influenced by political-economic interests? And who has the power to reverse the flow and change tides?