Consultation on ISDS successor obscures impacts

The EU commission has launched a consultation on a multilateral investment court (MIC), an investor-to-state dispute settlement (ISDS) variant. 1 The commission does not expect a multilateral investment court to cause social or environmental impacts. 2 This is remarkable as the current ISDS system causes serious impacts. And even worse, the consultation seems designed to obscure the social and environmental impacts. In an email to the commission I explained the issues and asked to publish a more meaningful Inception Impact Assessment and consultation.

Multilateral investment court would impede measures on climate change

DRAFT

The European Commission has launched a consultation on a multilateral investment court (MIC). The MIC would be a successor to investor-to-state dispute settlement (ISDS). This short note is the attachment to my draft submission. This note is public domain. (Blog, PDF)

1 Introduction

Mankind faces an existential threat: climate change.

A disappointing TTIP human rights assessment

ECORYS published a final draft human rights assessment of the trade agreement with the US (TTIP). The official name is a Trade Sustainability Impact Assessment (TSIA). I provided feedback on an earlier draft, see here. In my opinion, the final draft is disappointing. I will give two examples.

European Parliament resolution: check legality ISDS/ICS in CETA

Members of the European Parliament want the EU’s Court of Justice to check whether a parallel legal system in the trade agreement with Canada (CETA) is compatible with the EU treaties. The parallel legal system, known as ISDS / ICS, is only accessible to foreign investors. Eighty-nine members tabled a resolution. The Parliament will vote next week, Wednesday 23 November 2016. According to associations of judges (one, two), academics (letter from over 100 law professors) and NGOs (ClientEarth, two pager), the ISDS / ICS parallel legal system is not compatible with the EU treaties.

MEP Schaake unconvincingly defends ISDS in CETA

Member of the European Parliament Marietje Schaake used harsh words on Wallonia for (temporarily) blocking the signing of the EU-Canada trade agreement (CETA): unbelievable, shameful political opportunism, really incomprehensible. In the press release she also defended the inclusion in CETA of investor-to-state dispute settlement (ISDS), a parallel legal system for multinational investors. In this blog I will argue that Schaake supports an approach that puts at risk democracy and the rule of law. Schaake is the liberal groups’s (ALDE) spokesperson on trade. Wallonia has seriously looked at CETA for years.

A deceitful attempt to get CETA signed

Update: new version of Declaration, see below

The European Commission and Canadian government work on a “Joint Interpretative Declaration” that should convince governments that have doubts about signing the EU-Canada trade agreement (CETA). The Declaration does not change CETA’s text. It does not give a clarification of provisions. Take the first paragraph of the section on Investment Protection:

“CETA includes modern rules on investment that preserve the right of governments to regulate in the public interest including when such regulations affect a foreign investment, while ensuring a high level of protection for investments and providing for fair and transparent dispute resolution. CETA will not result in foreign investors being treated more favourably than domestic investors.”

Broken data protection in EU trade agreements

The study “Trade and Privacy: Complicated Bedfellows? How to achieve data protection-proof free trade agreements” is remarkable. On the one hand it shows, beyond doubt, that the EU fails to sufficiently protect personal data in its trade agreements. On the other hand, one of the safeguards it recommends could leave our personal data more vulnerable. Monique Goyens, Director General of The European Consumer Organisation (BEUC), commented:

It’s unacceptable that the EU’s privacy and data protection rules could be challenged through trade policy.

European Commission publishes Privacy Shield

The European Commission has published its Privacy Shield decision together with a Communication. The Privacy Shield will govern the transatlantic commercial flow of personal data from Europe. The European Commission follows up of its previous Safe Harbour decision that was turned down by the European Court of Justice in its Schrems decision. The core of Privacy Shield is hidden in provision 61:

(61) In the light of the information in this section, the Commission considers that the Principles issued by the U.S. Department of Commerce as such ensure a level of protection of personal data that is essentially equivalent to the one guaranteed by the substantive basic principles laid down in Directive 95/46/EC

Earlier published drafts of the document stated “as a whole”. Unpublished Commission drafts previously unlawfully obtained by Politico.eu and made available to their paid subscribers also contain the “as such” wording.