EU Switches TTIP ISDS Poison with Different Label

As details of the Transatlantic Trade and Investment Partnership between the US and EU (TTIP, sister treaty with Canada is CETA) become more widely circulated, the chorus of concerns continues to mount among the general public, labor organizations, civil society groups, small and medium enterprises, environmental, public health and other non-profit organizations and practically anybody with an above-room-temperature IQ. One of the most contentious elements of the trade treaty involves the Investor-State Dispute Settlement (ISDS) provisions.

Faced with big protests all over the continent and a record response when consulted with the people of Europe over whether they want ISDS, a response which shocked the bureaucrats when over 97% or 145,000 of the respondents rejected it outright, the EU came up with an alternative called the Investment Court System (ICS) which essentially substitutes a private court system made up of corporate lawyers with a EU appointed judicial body.

Apart from the fact that many legal experts question the validity of such an entity within the EU legal framework, which includes Germany’s largest association of judges and prosecutors who came out and called ICS “neither needed nor has any legal basis” (link), the proposed ICS amounts to merely slapping a different label on top of the original, much hated ISDS clauses.

And as The zombie ISDS argues, ICS permanently enshrines the one-way-only rights of multinational companies to sue treaty member states in a private court system which completely bypasses the country’s legal system with little/no appeal process and is presided by conflicted private sector lawyers acting interchangeably between ‘judges’ and claimant attorneys.

Besides the specifics on ICS, the article has a comprehensive list of grievances against ISDS which makes for a good read for those who wish to join the growing ranks of people across all walks of life – except the multinationals and their lobbyists – who have learned about and become alarmed by ISDS.

Here are the key points:

  • Both the number of ISDS cases and the amount involved have skyrocketed: 700 known cases by January 2016 since the 90s, and 70 new lawsuits filed in 2015 alone, with one case reaching $50 billion against one country.
  • Lawsuits against public interest legislation range from anti-smoking legislation, bans of toxic chemicals, anti-discrimination policies, financial stability measures and restrictions on dirty mining projects. 60% of the claims against EU member states concerned the environment.
  • Under the new EU ICS proposal, billions could still be paid to corporations, including for future lost profits that they hypothetically could have earned.
  • Over 47,000 companies would be newly empowered to sue the EU via TTIP.
  • ISDS allows transnational companies to sue their own governments via an oversea subsidiary.
  • Proposed environmental and health protections have been abandoned, delayed or otherwise adapted to corporate wishes because of expensive claims or the mere threat of litigation. Both Canada and New Zealand have delayed anti-smoking policies because of looming investor lawsuits from Big Tobacco.
  • The built-in pro-investor bias and conflict of interest in the settlement process will encourage more lawsuits and fees.
  • It sidelines European courts and grants special rights to foreign investors only.

Investor State Dispute Settlement (ISDS)

This article is part of the Investor State Dispute Settlement (ISDS) in-depth topic. Get a crash course and read the latest developments on this topic.


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