Here's more from EU Trade Commissioner Cecilia Malmstrom:
For all these reasons, I believe the question about putting investment in TTIP is not whether we should do it but how we can do it right. Can we design a new form of investment arbitration that keeps the benefits but avoids the negatives? I believe the answer is yes. And that with CETA as a baseline, the four sets of further reforms I'm suggesting today will be an excellent way of doing so. But let me stress again: these are preliminary ideas, the start of a discussion, not our final answer.
First, the most substantive concern expressed by respondents to the survey is that investment arbitration in TTIP will be a barrier to Europe's noble tradition of high quality regulation. Some worry that existing ISDS arrangements give companies too much leeway to attack regulation they deem is not in their interests. Others worry that the mere existence of a possibility of cases chills regulators' activities. These are real concerns that any new investment arbitration system will need to address.
Our idea is that this could be done in two ways. We would like to include a full article in the text that makes clear that governments are free to pursue public policy objectives and they can choose the level of protection that they deem appropriate.
I'm not sure exactly what she has in mind here, but I've written before about a general exceptions clause in investment obligations. If there were an exceptions provision that allowed for measures related to legitimate public policy goals, subject to some kind of "arbitrary and unjustifiable" discrimination clause, that might be sufficient to alleviate the concerns of some critics. But note that it has to be an exception from all provisions, not just non-discrimination, where it isn't even needed (in my view) if non-discrimination is interpreted properly. (Even simpler, of course, would be to take the "minimum standard of treatment"/"fair and equitable treatment" parts out completely -- that's where the bulk of the concern lies.)
