The European Commission and the Germans have met on ISDS, and see a way forward for CETA:
Only small changes can be made to an investment protection clause in a trade pact between Canada and the European Union, European Trade Commissioner Cecilia Malmström said on Monday (10 November).
"There can be minor clarifications and adjustments," she told a news conference in Berlin with German Economic Affairs Minister Sigmar Gabriel.
Gabriel added that the investor protection clause in the EU-Canada Comprehensive Economic and Trade Agreement (CETA) could not be changed totally.
“It will not be possible to take the dispute settlement procedure out of CETA. We are acting in a European context and must listen to the views of other countries,” Gabriel said after the meeting with Malmström. He said “improvements” and “changes” are expected to take place in the next few months.
I'm not sure what kind of minor changes they have in mind, but I have a couple suggestions in this regard. The current version of the CETA general exceptions provision says in relevant part:
Article X.02: General Exceptions
...
2. For the purposes of Chapters X, Y, and Z (Cross-Border Trade in Services, Telecommunications, and Temporary Entry and Stay of Natural Persons for Business Purposes,Investment Section 2 (Establishment of Investments) and Investment Section 3 (Non-Discriminatory Treatment), a Party may adopt or enforce a measure necessary:
- (a) to protect public security or public morals or to maintain public order ( x );
- (b) to protect human, animal or plant life or health;
- (c) to secure compliance with laws or regulations which are not inconsistent with the provisions of this Chapter including those relating to:
- (i) the prevention of deceptive and fraudulent practices or to deal with the effects of a default on contracts;
- (ii) the protection of the privacy of individuals in relation to the processing and dissemination of personal data and the protection of confidentiality of individual records and accounts;
- (iii) safety;
- (x) The public security and public order exceptions may be invoked only where a genuine and sufficiently serious threat is posed to one of the fundamental interests of society.
What if this exceptions clause were expanded to cover aditional investment provisions? Right now it covers Section 2 and Section 3, but not Section 4, which deals with issues such as fair and equitable treatment and expropriation. An exception for non-discrimination (Section 3) may not even be needed, if you give those provisions the right interpretation. The key is the more expansive provisions of Section 4. So why not apply these exceptions to Section 4? If they are "general" exceptions, let's apply them "generally"!
So that's pretty minor, right? Just add the words "Investment Section 4 (Investment Protection)" in there. No big deal. Just a small improvement.
To add one more small improvement, you could change "may adopt or enforce a measure necessary:" to something like "may adopt or enforce measures to fulfil a legitimate objective, including, inter alia, measures:"
I don't know exactly what the Germans have in mind, and what their specific concerns are, but this might help make them feel more comfortable.
(Of course, as I've said before, I'm not convinced these obligations are useful and necessary in the first place, but I'm just trying be constructive here!)
