Comments on the European Commission's approach to investor-state arbitration

Comments on the European Commission's approach to investor-state arbitration in TTIP and CETA by Gus Van Harten, July 3, 2014, 55pp

http://eu-secretdeals.info/upload/2014/07/Van-Harten_Comments-id2466688.pdf

I respond to the European Commission’s invitation for comment on its approach to investment protection and investor-state arbitration in the proposed EU-United States Transatlantic Trade and Investment Partnership (TTIP).

I am a Canadian academic specializing in international

investment law and am grateful for the opportunity to comment. Further information on the consultation is available here: http://trade.ec.europa.eu/consultations/index.cfm?consul_id=179.

The consultation does not ask the essential question: why is investor-state arbitration necessary in TTIP or CETA? To answer this question rigorously would require a careful framing of the question and comprehensive assessment of economic, political, and legal aspects of the use and

impact of investor-state arbitration. For example, the consultation would need to examine:

• the costs and benefits of investor-state arbitration in broad terms;

• the implications of investor-state arbitration for principles such as democratic choice, regulatory flexibility, and market efficiency;

• the compatibility of investor-state arbitration with values of judicial decision-making including, for example, values of judicial independence, openness, and procedural fairness; and

• the relative utility and role of alternative means – such as domestic and European courts, state-to-state adjudication, and market mechanisms including investment contracts and risk insurance – to protect foreign investors; and

The consultation is not framed to address any of these issues. As a result, it is not designed to obtain a wide range of available evidence and information that would cast doubt on or outright contradict common claims of proponents of investor-state arbitration...

more at www.alternativetrademandate.org, www.freembtranslations.net and John Hilary's 58-page booklet "TTIP: Charter for Deregulation, Attack on Jobs and Destruction of Democracy, revised February 2015

http://www.rosalux.de/fileadmin/rls_uploads/pdfs/sonst_publikationen/TTIP_HILARY_UPDATE_EN_2015.pdf