The European Commission (the Commission) has opened its three-month public comment period on investment protection and investor-state dispute settlement (ISDS) in the Transatlantic Trade and Investment Partnership (TTIP). The aim of the consultation is to seek the right balance between protecting investments and safeguarding the European Union (EU) public interest. According to the Commission, the consultation process seeks to "better define the EU's approach to investor protection and ISDS in the proposed TTIP negotiation by allowing all stakeholders an opportunity to provide their reflections."
The Commission has decided to conduct the consultation through an online questionnaire covering 12 key issues of interest and soliciting general comments. The deadline for stakeholders to make a submission is 6 July 2014.
The investment chapter, a key issue in the TTIP negotiations and all the EU free trade agreement negotiations, faces strong opposition from nongovernmental organizations, certain stakeholders, and certain EU member states. These constituencies will present their views in the consultation process very forcefully, as well as through the media and directly to the United States and EU member states. It thus will be paramount for the EU and U.S. business communities to voice their views in support of strong investment protections and a robust ISDS mechanism in the consultation process.
The Commission intends to publish a contributions report online after the consultation period's conclusion. The report will include a list of the companies and organizations responding to the consultation. The Commission will also post specific responses of companies and organizations that agree to be published.
The specific topics identified in the consultation include:
- scope of the substantive investment protection provisions
- nondiscriminatory treatment of investments
- clarifying and defining the fair and equitable treatment standard
- expropriation in light of legitimate public policy measures
- ensuring the right of governments to regulate, balanced with the need to protect investments
- transparency in investor-state dispute settlement, in line with the recently adopted United Nations Commission on International Trade Law (UNCITRAL) rules on transparency
- the EU's approach to favor domestic courts and amicable solutions over investor-state dispute settlement
- arbitrator ethics, conduct, and qualifications
- reducing frivolous and unfounded disputes, including allocating costs against a party that brings a frivolous claim
- filtering out certain claims, particularly in relation to financial sector regulation taken for prudential reasons
- the possibility of the United States and European Union offering binding interpretations of the TTIP, which tribunals would have to respect
- possible appellate mechanisms to increase consistency in investor-state dispute jurisprudence