I read Karel de Gucht's Dusseldorf speech this past Wednesday with interest, not only for the question Simon rightly raises. It is plausible that ISDS, and the proposed substantive obligations, would provide greater protection from abuse, and greater incentives to invest, where the host country has less reliable legal rules and courts. With Simon, I wonder how often that is the case in the member states of the European Union, or in the United States. Both the EU and the US have lots of protections against abuse. So maybe a little investigative work would be appropriate. Which investment chapter rules are not already reflected in the domestic legal systems of the TTIP parties (including existing European law)? Then, the substantive obligations might simply be scheduled--either confirming and preserving existing protections or supplementing national rules where they fall below the essential investor protection standards. The advantage of this process would be to begin a dialog about specific concerns, rather than continue with abstract fears on both sides. Another advantage would be to allow states to schedule the rules that they have, avoiding uncertainty about the constraining effects of new rules. Perhaps when we do the homework, we will realize there is actually little to fight about.
Second, to what extent is ISDS really necessary in this context? Let's see the evidence of national bias or inadequate national procedures or remedies in the courts of the US and EU and its member states. I am not saying that investors should not have direct recourse (although I am not certain that they should). But I think it is worth asking whether direct effect in TTIP member courts would provide the appropriate remedies.
So, perhaps it is time to move beyond one-size-fits-all investment chapters, and BITs, and to adapt to specific contexts and specific concerns.
