It is here. Explanation is here. Here are a couple quick thoughts.
First off, Article 2.1 states:
The provisions of this section shall not affect the right of the Parties to regulate within their territories through measures necessary to achieve legitimate policy objectives, such as the protection of public health, safety, environment or public morals, social or consumer protection or promotion and protection of cultural diversity.
Is this supposed to function like an exception? I'm not sure it will. It might have been more useful to include a more traditional GATT Article XX-type general exception, as some other investment treaties do.
Then there is Article 3.2, which says:
A Party breaches the obligation of fair and equitable treatment referenced in paragraph 1 where a measure or a series of measures constitutes:
(a) denial of justice in criminal, civil or administrative proceedings; or
(b) fundamental breach of due process, including a fundamental breach of transparency and obstacles to effective access to justice, in judicial and administrative proceedings; or
(c) manifest arbitrariness; or
(d) targeted discrimination on manifestly wrongful grounds, such as gender, race or religious belief; or
(e) harassment, coercion, abuse of power or similar bad faith conduct; or
(f) a breach of any further elements of the fair and equitable treatment obligation adopted by the Parties in accordance with paragraph 3 of this Article.
This looks like the CETA version of fair and equitable treatment, so I guess the Commission thought that version was good enough.
There is no section on non-discrimination (national treatment and MFN) in the draft text. In the explanation, the Commission says: "Another guarantee – against nationality-based discrimination – is already included in the European Union’s formal proposal to the United States on Trade in Services, Investment and E-Commerce."
Then finally, there are provisions on setting up a permanent court system, including a Tribunal of First Instance and an Appeal Tribunal. I don't have any strong opinions on these provisions, although as a general matter I think a permanent court is a good idea.
So will any of this satisfy ISDS critics? And will the U.S. go along with it?
