The European Commission last week published its analysis of the almost 150,000 replies to its online consultation on investment protection and investor-to-state dispute settlement (ISDS) in the Transatlantic Trade and Investment Partnership (TTIP). The Commission asked the public for their views on a possible approach to protecting investments and settling investment-related disputes between private investors and governments.
The consultation questionnaire explained in detail the EU’s approach on 12 issues concerning investment protection and ISDS in TTIP. The approach builds on the improvements the EU seeks to bring to the existing system. The 12 issues on which questions were asked include safeguards on governments' right to regulate in the public interest, full transparency of ISDS proceedings, ethical requirements for arbitrators, and a possible appeals body.
The vast majority of replies, around 145,000 (or 97%), were submitted through various on-line platforms of interest groups, containing pre-defined, negative answers. In addition, the Commission received individual replies from more than 3,000 individuals and some 450 organizations representing a wide spectrum of EU civil society, including NGOs, business organizations, trade unions, consumer groups, law firms and academics. These replies generally go into more detail on the proposed approach.
While acknowledging the numerous replies indicating opposition to or concerns around TTIP in general and about the principle itself of investment protection and ISDS, the Commission feels that more substantial progress can be made on the issue by studying the replies containing specific comments on the various aspects of the EU’s approach and in some cases concrete suggestions for further change. Based on the comments received, there are a number of areas that appear to be particularly important to respondents and should “be explored further” such as:
- the protection of the right to regulate;
- the establishment and functioning of arbitral tribunals;
- the relationship between domestic judicial systems and ISDS;
- the review of ISDS decisions for legal correctness through an appellate mechanism.
The Commission indicates that it will soon be organizing a number of consultation meetings with EU governments, the European Parliament, and different stakeholders, including NGOs, business, trade unions, consumer and environment organizations, to discuss investment protection and ISDS in TTIP on the basis of this report. As a first step, the consultation results will be presented to the INTA Committee of the European Parliament on 22 January. Following these consultations during the first quarter of the year, the Commission will then develop specific proposals for the TTIP negotiations. Click here to dowload the complete analysis.