Marietje Schaake, the European Parliament’s liberal group’s (ALDE) spokesperson on the trade agreement with the US (TTIP) published a blog on investor-state arbitration (ISDS).
I will discuss her arguments below; to avoid cherry picking, I will quote her whole blog (for the links and images see her blog).
I conclude that a majority of the European Parliament liberal group seems ready to sacrifice the separation of powers, and democracy, for no good reason. As things stand now, the liberals won’t fight for our democracy.
“ISDS – what’s going on?
Posted in: Timeline, Top Stories
One of the most hotly debated topics around the negotiations of a trans-Atlantic Trade and Investment Partnership (TTIP) is the so-called Investor-State Dispute Settlement (ISDS) mechanism. However, many of you may ask, ‘what exactly is ISDS?’
In 1959, Germany became the first country to conclude a bilateral investment agreement when it closed an agreement with Pakistan. It is unclear when exactly the first ISDS clause was introduced, though the agreement between the Netherlands and Kenya of 1970 contains an early reference (article 11). By the ’80s ISDS clauses were common features in bilateral investment agreements. This clause allows a company, from either of the two countries investing in the other, to bring the government of that country before an international arbitration court if it believes it has been unfairly treated. This would be for example if property is expropriated or if a contract is broken. In most bilateral agreements, investors are granted access to the domestic legal system, while sometimes requiring investors to exhaust all local remedies before proceeding to international arbitration.
ISDS clauses have been especially popular for Western governments and companies when closing an agreement with a country where the rule of law was not a given. (This study, commissioned by the Dutch government, provides a good oversight of the history and development of ISDS) Companies often seek legal certainty before they make large-scale investments. The idea of creating rules to facilitate investment makes sense from that angle. We should not forget that investment is a very important foundation of economic growth. The current European stagnation is partly caused by a lack of access to capital, for example for SMEs.”
Schaake wants more inbound investments. She wants to give foreign investors legal certainty. Europe has received massive investments; lack of legal protection has never been an issue. Lack of legal protection did not cause our crisis, and more legal protection will not solve our crisis. There is no convincing evidence that ISDS leads to more inbound investments. Brazil never ratified ISDS agreements; it continues to receive lots of foreign investment. There is no link between lack of ISDS and our current stagnation. Schaake suggests a way out of our crisis that is a fata morgana.
“Although TTIP has brought ISDS to the current public debate, it is not new. There are over 3000 agreements containing ISDS clauses in the world, and many of the 1400 bilateral agreements EU member states have also contain ISDS. It has become a complex patchwork, and European member states even have ISDS in agreements with each other. The most infamous European ISDS case, concerning Vattenfall challenging the loss of investment as a result of the banning of nuclear energy, has been filed under the agreement between Germany and Sweden. There has been no ruling yet.
Opponents of ISDS claim it would derail the democratic process and allow companies to sue governments left, right and centre. But has this been the case so far? In the 55 years since the conclusion of that first ISDS clause by Germany, 568 cases have been initiated, of which 274 have been concluded (i.e. 294 cases are still pending). Of these, 43 per cent were concluded in favour of the states, 31 per cent in favour of the investor and 26 per cent has been settled.”
These numbers are incomplete; they only count the known cases and they do not count the threats. The settled cases have incurred unknown costs on states. Threats, cases and legal costs all have a chilling effect.
“Moreover, more than half (54 per cent) of the cases were brought by companies from European member states. The majority of cases were brought against African and South American states. (click here for a comprehensive overview of current and past ISDS cases)”
Does Schaake want to claim that cases by companies from EU member states can not derail the democratic process? Swedish investors won an ISDS case against Romania. What did Romania do wrong? Romania brought its policies in line with EU legislation. EU countries have been respondents in 117 known cases.
“Another critical claim is that we have seen a dramatic increase in the number of new ISDS cases, from around ten cases a year in 2000 to more than fifty in 2013. While this sounds alarming, we must see it in the context of a significant increase in global investment flows. The growing number of cases between 2000 and 2014 is directly caused by an increase of global investment stocks in the same period from 7 trillion USD to 25 USD.”
Schaake refers to the wrong numbers. Most of these investment stocks are not covered by ISDS. More adequate numbers would have been: investment stocks covered by ISDS. In addition, contrary to what Schaake writes (“directly caused”), there is no causality, as an alternative explanation is possible: the increase in the number of new ISDS cases is caused by expansive interpretation of investment protection clauses by for-profit arbitrators.
Moreover, the argument backfires. TTIP would expand covered investment stocks by far more than all existing treaties combined. (page 29)
Presently 1% of US foreign direct investment stock in the EU is covered by ISDS; this led to nine ISDS cases. Coverage of 100% of US foreign direct investment stock in the EU may lead to hundreds of cases against the EU and EU countries. Multinationals will also be able to use the agreements with Canada, Singapore or other countries, if concluded.
Contrary to what Schaake writes, the numbers are alarming.
“Many of these investments went to developing countries where there are often more concerns about the rule of law.
World stocks investment inward 1980 – 2014
There are still other problems surrounding ISDS procedures. The language used in the ISDS clauses is unclear, so that companies can bring governments before courts for a broad range of issues. Furthermore, the arbitrators are not always independent as they often work on other cases and work for both companies and governments. The procedures take place behind closed doors and documents are rarely accessible. These are valid concerns that we have been addressing in the European Parliament, and that are shared by the European Commission.
To make the needed improvements, the Commission has proposed innovations to ISDS, which would increase transparency, limit the issues which companies can sue for, protect the right and space of governments to regulate and looks to guarantee the independence of arbitrators. (click here for a link to the Commission’s proposals)”
Last summer over 110 scientists published a Statement of Concern about Planned Provisions on Investment Protection and Investor-State Dispute Settlement (ISDS) in the Transatlantic Trade and Investment Partnership (TTIP). The statement shows the commission failed to solve a long list of issues.
“Are there any supporters of ISDS? Maybe… To make sure all voices are heard, the Commission froze the negotiations on ISDS in TTIP to hear from people. And 160.000 responded. We want to know as soon as possible what these consultations say about what stakeholders think about this new ISDS. In any case it shows people know and care about EU politics.
After all the discussion on ISDS, one may wonder, ‘are there no alternatives to ISDS?’. As a matter of fact, two alternatives have been suggested, but both are not without problems.
The first is state-to-state dispute settlement. States would then take the case of a company upon themselves, and address it before a tribunal. This creates a problem for small and medium size enterprises, which may not have the resources to convince their government that their case is worthy of attention. A second problem is that the cases might well be influenced by inter-state relations and other global events.
The second alternative is a permanent ISDS tribunal, much in the way the WTO also has a permanent tribunal for dispute settlement. This is definitely a good option, but it will probably not be put in place very soon. Therefore, while the idea is good, it will not solve the current debate.”
Local courts and insurance are two more alternatives. Both exist.
“That leaves the question, ‘why do we need this system between the EU and the US?’ Surely, the EU and the US have highly predictable and well-functioning legal systems that do not need separate rules to protect companies? Yet, businesses in both the EU and the US do not always agree. European companies question whether they would get the same treatment in Texas as a Texan company would, or the same trial in New York as their American competitor. American companies on the other hand wonder whether they would get the same treatment as local companies would in for example Italy or Romania. These are not easy questions, but we should not shy away from them.”
Adjudicative systems are not perfect. People are not perfect. But Schaake does not provide proof of systemic failures. If there would be proof of systemic failures, we would have to repair our systems. Schaake does not argue that our legal systems are beyond repair.
Let’s go one step further. There is no reason to add ISDS to an agreement with China. Companies can take a political risk insurance.
China’s investments in the EU are growing. Above I mentioned that last summer over 110 scientists published a Statement of Concern which shows that the commission failed to solve a long list of issues. We should not expose ourselves to ISDS cases. Especially not as flaws in trade agreement are hardly reversible.
“Complex facts may not always be as sexy as fast claims, but I’m afraid trade negotiations are often very technical and complex to understand. They are not the material for one-liners.
Hypes are easily born. This article from Euractiv for example, purported that the French government stated that it would not sign TTIP in 2015 and was against including ISDS in TTIP. However, this claim is incorrect if we look at the transcript from the hearing the article is based on. It is even a completely incorrect translation of a French version of the article posted on the same website.
We need to make sure that the current problems with the system are remedied in the agreements that already exist, and we must make sure that European (and other) governments retain their right to regulate. But to have that debate, we need the facts and not the fiction.”
What can I say? Schaake used incomplete numbers, referred to wrong numbers; her focus on numbers backfired. I did not see one good argument. And she overlooked the Statement of Concern, published by over 110 scientists, mentioned above.
Agreements without ISDS are not a problem. The Cato Institute is a staunch proponent of investment and free trade. It advises to purge trade agreements of ISDS. Dan Ikenson may have produced the best quote: “ISDS is ripe for exploitation by creative lawyers.”
“The consultation from the European Commission will come out soon, and that will provide us with a more solid ground to weigh the pros and cons of ISDS once more, this time based on a major crowd sourced consultation, hearing the voices of people from all over Europe.”
The commission will present the results of the consultation. Will they admit they failed to solve a long list of issues? Will they admit ISDS is rigged to the advantage of the United States? The commission does not want to renegotiate the draft agreement with Canada, so they can not admit they messed up. We can not expect the truth from the commission. The commission will not fight for our democracy.
“Correction: This article was updated on 19 November to rectify an earlier version which stated that the first ISDS clause was introduced into the 1959 BIT between Germany and Pakistan, whereas in fact this agreement contains a state-to-state dispute resolution mechanism.”
Crown jewels: Separation of powers
The separation of powers is a core aspect of liberalism, of our democracy. I have noted various times, also in letters to the European Parliament International Trade committee, of which Schaake is a member, that ISDS does not observe the separation of powers and is rigged to the advantage of the United States. (letter 1, letter 2)
Schaake is the ALDE (liberal) group’s spokesperson on the trade agreement with the US. We can see her blog post as an indication of the group position.
The liberal group seems ready to sacrifice the separation of powers, and democracy, for no good reason. As things stand now, the liberals won’t fight for our democracy.
Like with ACTA, citizens will have to step in.
What is special is that we hear a lot the point raised that Germany was first, but that had been mostly a talking point from abroad. EU ISDS powers are only a recent development. We have to examine closely what ISDS means in a specific context. I often listened to the objection that trade treaties without enforcement mechnism would be too weak. Still the question remains if ISDS is suitable, I doubt so, esp. between advanced countries.
Marietje Schaake voices quite constructive criticism. Technically the ISDS may not compromise the separation of powers but the rule of law as this instrument is intentionally biased towards foreign investors while discriminating domestic players. The main effect of the instruments does not extent to its actual application but political dissuation of regulatory action. Thus the number of cases is an insufficient indicator.