‘We want the rule of law, not the rule of lawyers’

De mogelijkheid bestaat dat er een ISDS-clausule in het handelsverdrag wordt opgenomen. Dat is een clausule in het verdrag die investeerders de mogelijkheid geeft om een land dat zich niet aan de verdragsverplichtingen houdt voor een internationaal arbitragetribunaal te dagen. Bedrijven kunnen financiële schade oplopen. Kritiek hierop is dat men bang is dat de macht van grote bedrijven wordt vergroot, mede door de invloed van advocaten bij arbitrage tribunalen. Deze angst is volgens EU-commissaris voor Handel, Cecilia Malmström niet onterecht, maar ondanks de felle kritiek blijft de Commissie bij haar standpunt om een investeerder-staatarbitrage in het TTP op te nemen.

Iveta Alexovičová, verbonden aan de Universiteit van Maastricht, analyseert in dit artikel de recente ontwikkelingen over de onderhandelingen van het Trans-Atlantisch Vrijhandels- en Investeringsverdrag (TTIP) tussen de EU en de VS.

This catchy (and some would argue rather ambitious) slogan was included in Cecilia Malmström’s opening remarks for a meeting this EU Commissioner for Trade had last week with members of the European Parliament’s International Trade Committee about investment in the socalled Transatlantic Trade and Investment Partnership (TTIP), a bilateral free trade agreement currently negotiated by the EU and the US. 

Apart from sounding well, the slogan does indeed reflect a fear, present among a part of the European public and some politicians, for lawyers representing powerful investors and suing EU and its member states for astronomic sums in damages caused by new legislation adopted in pursuance of public policy objectives, such as consumer or environmental protection. 

Indeed, and as admitted by Malmström herself, lawyers have been ‘pushing the boundaries’ of the so-called inverstor-state dispute settlement (ISDS), included in virtually all existing investment treaties and envisaged in the TTIP as well. Another reason for the fear for lawyers is their involvement in ISDS arbitration tribunals. It has been argued that these tribunals are per se biased since, given the scarcity of experts in the field, they are composed of business-friendly corporate lawyers acting as an arbitrator in one case and as a legal counsel in another case. 

A fair enough reason for the Commission to start pushing for the establishment of an international investment court staffed by independent and impartial judges. Unfortunately, even if the initiative is successful - which is far from certain given a little interest among other countries in this respect in the relatively recent past - it is not a solution for the TTIP. The TTIP needs to be concluded as soon as possible, not to lose the momentum that seems to exist for the TTIP to become a standard setting agreement for the world, and not to be dragged on into the upcoming US election campaign next year. The Commission is well aware of this and argues that, awaiting further developments regarding an international investment court, it will propose a reformed ISDS for the TTIP - ‘a very different animal’ from systems used thus far. 

Despite strong voices to the contrary, the Commission maintains that ISDS must be included in the TTIP to provide EU investors with protection against, among others, possible discriminatory treatment by the US, given the absence of a nondiscrimination rule in US domestic law in combination with the fact that international law - should such non-discrimination obligation be included in the TTIP, as proposed by some - cannot be directly invoked before US courts. With no ISDS in the TTIP, EU investors would be left with no effective remedy. At the same time, to eliminate the danger that US investors will abuse the system by ‘pushing the boundaries’ against EU and its member states, the Commission intends to propose an explicit clause in the TTIP recognizing the right of states to regulate in order to pursue public policy objectives and the right to choose their appropriate level of protection, as well as a clause that investment protection rules offer no guarantee for investors that the legal regime under which they have invested will stay the same. 

Soon enough we should see how much of the Commission’s intentions will make it into the TTIP, or even into the Commission’s formal proposal to the US. At present, as stressed by Malmström last week, the Commission is still in search of the best way forward with regard to the ISDS and the TTIP. To be continued thus…