17 April 2014

Does ISDS have any place in our democracy or trade agreements?

Commission’s so-called ‘public consultation’ leaves no room for this fundamental question

Simon McKeagney, Editor

Video: Suing the State - hidden rules within the US-EU trade deal by Corporate Europe Observatory

In a little under 3 months the European Commission will close its 90-day public consultation on investor protection plans in the EU-US trade deal. Pegging it as a key component in their public relations drive on TTIP (only after a notable souring of public opinion earlier this year) the aim is ‘to consult the public on the investment provisions of a future EU-US trade deal’.

But it only takes one glance at the 40 page document to realise that this consultation is not for ordinary members of the public. So dense is the questionnaire that most civil organisations following the trade talks are having trouble dissecting what it means. What a regular citizen would make of it doesn’t seem to be accounted for as part of the Commission’s end goal. 

Or the opposite view could be taken: perhaps the Commission knows exactly what it is doing. While some of the world’s largest multinationals will pay full-time lobbyists to submit detailed responses to this consultation over the coming weeks in favour of extended investor privileges, the average citizen will struggle to decipher the questionnaire let alone object to the premise of the  questions. And while this public relations exercise continues, lets not forget that a whole range of other issues remain at stake. The Commission can feign ‘transparency’ while it gets on with the work of negotiating which regulations and standards will be altered under TTIP. 

It’s worth reminding ourselves how far things have progressed: the 5th round of negotiations begins on May 19 in Washington, with negotiators still pressing to finalise the agreement by the end of 2014. And while the 4th round seemed to show the first signs of disagreement, Commission sources have indicated that negotiations are in full-steam - with a whole variety of position papers submitted for discussion from both sides. Since the announcement for TTIP was made last year, it has clearly been an intention to include Investor State Dispute Settlement (ISDS) in the agreement. The public uproar that has swept Europe since the implications of ISDS became more widely understood and the new stances against such a mechanism by countries like Germany and France has done virtually nothing to persuade negotiating teams to drop it. 

Their answer has instead been to launch a smokescreen in the form of an online questionnaire that gives no option to oppose ISDS altogether. Instead, 12 long, nuanced questions riddled with trade-speak are offered with space at the end for further remarks. What role these public submissions will play in informing an end-deal is unknown. The assumption at the end of this process ties in with the Commission’s general stated goals for ISDS- reform, not removal. But others argue that such tinkering around the edges of ISDS will not fundamentally correct the long list of issues at stake with such an inherently discriminatory system. 

10 reasons to oppose investors’ super-rights in EU trade deals

Corporate Europe Observatory today launched a detailed list of reasons on why ISDS is bad for EU trade deals, which includes TTIP and the Canadian and Singapore deals currently being finalised (but will not be reopened if ISDS is challenged in TTIP).They argue that the weak reform proposals for investor rights in the deal will do little to prevent a ‘corporate litigation boom against democratic policies to protect public health and the environment’

Their 10 points on why ISDS should be opposed are listed below. Detailed information backing up each reason can be found on the CEO website.

Reason 1: ISDS is a tool for big business to make governments pay when they regulate

Reason 2: Corporate super-rights are an instrument to rein in democracy

Reason 3: The investor rights provide VIP treatment to companies

Reason 4: The investor-state arbitration system is fundamentally flawed

Reason 5: The Commission’s ‘reform’ agenda does not even touch upon these basic flaws of the system

Reason 6: The risks of being sued by big business are ever growing for governments

Reason 7: The investor privileges enable backdoor corporate attacks on court decisions

Reason 8: The investor rights do not bring the economic benefits claimed for them

Reason 9: The global tide is turning against excessive corporate rights

Reason 10: There are alternatives

The Greens will continue to press for the removal of ISDS from trade agreements like TTIP. We see no role for such a settlement procedure in modern democracies, when our courts are well capable of taking on such cases. To include it threatens our right to regulate and past cases clearly demonstrate this. It will take a lot more than a questionnaire to convince us otherwise. 

Please share!

Related content

Your comment