From a speech today by President-elect of the European Commission Jean-Claude Juncker before the European Parliament:
Investor-to-state disputes
I took note of the intense debates around investor-state dispute settlement (ISDS) in the Transatlantic Trade and Investment Partnership (TTIP) negotiations. Let me once again state my position clearly, that I had set out on 15 July in front of this House and that you will find in my Political Guidelines: My Commission will not accept that the jurisdiction of courts in the EU Member States be limited by special regimes for investor-to-state disputes. The rule of law and the principle of equality before the law must also apply in this context.
The negotiating mandate foresees a number of conditions that have to be respected by such a regime as well as an assessment of its relationship with domestic courts. There is thus no obligation in this regard: the mandate leaves it open and serves as a guide.
I had thought my commitment on this point was very clear but I am happy to clarify and reiterate it here today as a number of you have asked me do so: In the agreement that my Commission will eventually submit to this House for approval there will be nothing that limits for the parties the access to national courts or that will allow secret courts to have the final say in disputes between investors and States.
I have asked Frans Timmermans, in his role as First Vice-President in charge of the Rule of Law and the Charter of Fundamental Rights, to advise me on the matter. There will be no investor-to-state dispute clause in TTIP if Frans does not agree with it too.
I am confident that – with your support – we can negotiate an ambitious trade agreement with the U.S. along these lines, with full respect of European interests and the rule of law.
He says he is stating his position clearly, but it is clear to you? I'm not sure it's clear to me. I see some wiggle room there. To take one example: He says "secret courts" will not have final say, but transparency reforms could make them no longer "secret." So maybe there is some version of ISDS he will accept, yet we don't fully know what that version would look like.
I suspect that no one is eager to resolve this until they see if the TTIP actually has a chance to be completed, which many people are saying looks doubtful. Why have a fight about ISDS in TTIP if there will not be a TTIP?
But regardless of what happens with the TTIP, they will need to have some kind of debate on ISDS as part of CETA and the EU-Singapore FTA.
