This is from EU trade commissioner Cecilia Malmstrom, in the context of discussing the newly propsed TTIP ISDS investment court:
“We want to establish a new system built around the elements that make citizens trust domestic or international courts”, said EU trade commissioner, Cecilia Malmstrom.
Malmstrom, who is steering EU talks with her American counterparts on an EU-US trade agreement (known as TTIP), said the new court would seldom be used.
“I foresee not very many cases”, she said.
How many of these cases would there be? You could try to extrapolate from past agreements, comparing levels of foreign investment by the parties to those agreements with investment between the U.S. and EU. Here's what I said about this a while back:
Cross-border flows of investment between the United States and the European Union are quite large. ... “the United States and the European Union have directly invested more than $3.7 trillion/€ 2.8 trillion on both sides of the Atlantic.” ... Under the similar provisions of the North American Free Trade Agreement (NAFTA), Canadian companies have brought 15 cases against the United States in the almost 20 years since the NAFTA was signed. With EU investment in the United States over seven times the amount of Canadian investment, there is the potential for a large number of complaints.
Obviously, there are lots of factors to take into account when predicting the number of ISDS cases, and I really have no idea how many there might be. If at some point in the future it looks likely that we will have TTIP ISDS, maybe someone can work out a better methodology.
Then there's the issue that the substance of international investment law will have changed slightly under the EU TTIP ISDS proposal, and, of course, the procedure would change a lot. What would this permanent investment court do to the prospect of lawsuits? Is it a deterrent to filing cases, because everything will be new and hard to sort out? Or will investment lawyers be excited to test it out?
