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    US Defends Investor-State Provisions; EU Promotes TTIP Consultation

    Published on 27 March 2014 @ 10:42 pm

    By , Intellectual Property Watch

    Investor-state provisions in trade and investment agreements, which allow private companies to sue governments for policies taken that undermine the companies’ investment expectations, have come under recent scrutiny for their potential to undermine the public interest. Today, the United States Trade Representative published a blog post defending these provisions, while the European Union opened a public consultation on the provisions in the Transatlantic Trade and Investment Partnership (TTIP) with the US.

    US

    “There are a lot of myths out there suggesting that ISDS [investor-state dispute settlement] somehow limits our ability – or our partners’ ability – to regulate in the interest of financial stability, environmental protection, or public health. Some have even suggested that a company could sue a government just on the grounds that the company isn’t earning as much profit as it wants,” USTR said in its blog post. “These assertions are false.”

    “The United States promotes provisions in our trade agreements that protect our right to regulate in the public interest while promoting higher standards in many partner countries in areas ranging from labor and environment to transparency to anti-corruption,” it said.

    Over the last 50 years, nearly 3,200 trade and investment agreements among 180 countries have included investment provisions, and the vast majority of these agreements have included some form of ISDS, USTR said, adding that the US is party to 50 agreements with ISDS.

    The blog post lists points in support of ISDS, including that they: give legal protection for US investors abroad; protect the right of governments to “regulate in the public interest”; do not interfere with the ability of federal, state or local governments to take actions; do not allow companies to sue based on lost profits; include safeguards against frivolous suits; ensure “fair, unbiased and transparent” legal processes; and ensure independent and impartial arbitration.

    EU

    The European Commission, meanwhile, has announced a public consultation on ISDS, giving the opportunity to comment on these provisions in the TTIP. It said that only nine EU members currently have bilateral investment agreements with the US, though investment is critical to the EU economy. EU members in general have struck over 1,400 bilateral investment treaties, and EU investors are the largest users of ISDS in the world.

    A key element of the provisions is the prevention of expropriation by other governments, the Commission noted.

    The Commission is proposing a new approach on investment protection and ISDS for the TTIP, it said, and it addresses concerns that have been raised through two actions.

    First, it clarifies investment protection so the “right to regulate” is not undermined, allowing government actions in the public interest, and not protecting “shell companies” in the parties’ territories.

    Second, it improves the system by allowing for early dismissal of unfounded claims and preventing investors from bringing multiple claims in various jurisdictions, plus instituting a loser pays system. It also builds in transparency, such as making ISDS claims publicly available, contains a code of conduct for abitrators to eliminate conflicts of interest or bias, uses an appellate body to review awards, allow the governments to agree on how they interpret certain provisions so arbitral panels must follow it, and ensuring that ISDS only applies to investment and not the rest of the TTIP.

    The consultation document includes examples of provisions in EU bilateral investment treaties and the EU-Canada bilateral treaty.

    William New may be reached at wnew@ip-watch.ch.

     

    Comments

    1. Anne palmer says:

      If this goes ahead, as the EU will “speak” for all its Member States, will there be any need for National Governments?

    2. Andre says:

      The EU or the US are not the banana states for which ISDS was imaged up for. You put ISDS in an uneven treaty with a banana state, that is the whole point. But who is the banana state here? US? EU? ISDS is completely superflous and dangerous.


    Leave a Reply

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

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