CYIL 2015

ONDŘEJ SVOBODA

CYIL 6 ȍ2015Ȏ

The current state of the EU debate In June 2013 the Council of the EU unanimously authorised the European Commission to negotiate the Transatlantic Trade and Investment Partnership with the United States. From the very first moment, as the declassified Council’s negotiating directives proves, the EU officials had foreseen that “the aim of negotiations on investment will be to negotiate investment liberalisation and protection provisions” 40 and the enforcement of the investment protection chapter should have been secured by “an effective and state-of-the-art investor-to-state dispute settlementmechanism”. 41 Such a mechanism would be designed in order to provide transparency, the independence of arbitrators and the predictability of the Agreement, including, through the possibility of binding interpretation of the Agreement by the Parties, safeguards against manifestly unjustified or frivolous claims and the possibility of creating an appellate mechanism. 42 Facing a major amount of pressure from the public, the European Commission decided to react to the development in two ways. It suspended negotiations on the investment chapter in the TTIP and organized a public consultation in 2014 on this topic where the European Commission asked the public for their views. The consultation was launched on 27 March and closed on 13 July, and the aim of the consultation was “to develop further the EU approach on these important issues that matter to Europeans.” 43 The consultation posed 13 key questions, dealing with both substantive investment protection and ISDS issues: the scope of the substantive investment protection provisions, non-discriminatory treatment for investors, fair and equitable treatment, expropriation, ensuring the right to regulate and investment protection, transparency in the ISDS; multiple claims and the relationship to the domestic court; arbitrators’ ethics, conduct and qualifications; reducing the risk of frivolous and unfounded cases; allowing claims to proceed (filter); guidance by the parties on the interpretation of the agreement, appellate mechanism and consistency of rulings; and, finally, an open question to submit a general assessment. To each question an introductory explanation, a description of the EU approach with reference to CETA and the EU concrete objectives for the TTIP were provided. The response of the public was extraordinarily high in numbers, and it confirmed the attention which the issue and its controversies draw. A total of nearly 150,000 replies was received, and the overwhelming majority, 97%, of responses was negative. The same percent was submitted collectively containing pre-defined answers. 40 Council of the EU, Directives for the negotiation on the Transatlantic Trade and Investment Partnership between the European Union and the United States of America, ST 11103/13 (9 October 2013), p. 8, see http://data.consilium.europa.eu/doc/document/ST-11103-2013-DCL-1/en/pdf. 41 Supra note 41, p. 9. 42 Ibid . 43 European Commission, Report. Online public consultation on investment protection and investor to-state dispute settlement (ISDS) in the Transatlantic Trade and Investment Partnership Agreement (TTIP), Commission Staff Working Document, SDW(2015) 3 final (13 January 2015), p. 2.

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