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Commission contemplates two ways to achieve this: inserting “fork-in-the-road” or
“no u-turn” provisions.48
The envisaged process should lead to the development of a concrete draft
investment protection chapter including ISDS by the end of Spring, which will be
subsequently presented to the US counterparts in the TTIP negotiations.49 However,
given the number of conditions, as set out in the negotiating directives adopted by
the Council, it is expected that a decision on whether or not to include ISDS is to be
taken no sooner than during the final phase of the negotiations.50
With regard to the political situation in the European Parliament and some EU
Member States (e.g. Germany, France, Austria, Hungary), the effort of the European
Commission concentrates on the four above mentioned areas highlighted in the
report. It is important to recall the European Parliament’s longstanding position that
future EU investment agreements should only include ISDS “in the cases where it
is justifiable.” 51 Unfortunately, for many observers from politics, civil society or the
academic sphere, the case of the TTIP is exactly an example of a redundant investor-
state arbitration mechanism.
TTIP as a way forward
It can come as a surprise that, despite the European reformist approach in the
recently concluded negotiations, a large number of stakeholders and the public
still remain unconvinced that the changes necessarily protect policy space in the
European Union. Despite the investment chapter’s precise contents in the TTIP
being unclear, the European Commission’s reform approach is proved. This approach
includes a number of improvements and innovations. The latest presentation of
Trade Commissioner Malmström in the European Parliament suggests that what will
be proposed in the TTIP context will set the standard further. However, the biggest
danger is posed by those groups critical to ISDS in the TTIP which do not seem to be
interested in improving the system but want to quash it altogether.52 No additional
safeguards would satisfy them. One cannot ask oneself, has the debate about the
TTIP not been hijacked by the disruptive anti-discussion groups?
48 Speech of Commissioner for Trade Cecilia Malmström on Discussion on Investment in TTIP in
meeting of the International Trade Committee of the European Parliament (6 May 2015).
49 Supra note 43.
50 European Commission, Report on investment protection and investor-to-state dispute settlement in
the Transatlantic Trade and Investment Partnership Agreement, Fact Sheet (13 January 2015), see
51 European Parliament, Amendments adopted by the European Parliament on 23 May 2013 on the
proposal for a regulation of the European Parliament and of the Council establishing a framework for
managing financial responsibility linked to investor-state dispute settlement tribunals established by
international agreements to which the European Union is party (COM(2012)0335 – C7-0155/2012
– 2012/0163(COD), Amendment 3.
52 Supra note 10, p. 2.