Corporate Europe Observatory

Exposing the power of corporate lobbying in the EU

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TTIP: debunking the business propaganda over investor rights

The European Commission’s plan to enshrine sweeping rights for foreign investors in the proposed EU-US trade deal (TTIP) continues to draw heavy criticism, in particular the right for corporations to sue governments in private tribunals. In response, industry lobby groups, law firms, and arbitrators have launched a tooth and nail defence of the business power grab. See through their propaganda with Corporate Europe Observatory’s guide to investment arbitration under TTIP.

Trade unions are opposed to the corporate rights. Consumer groups, environmentalists and digital rights activists, too. All (centre-)left groups in the European Parliament have voted against it. So have the French Assemblée Nationale and the Dutch Parliament. Media reports continue to generate bad headlines. But according to the public consultation on the issue, set to close this Sunday, the European Commission still wants to enshrine extreme powers for corporations in the EU-US trade deal (Transatlantic Trade and Investment Partnership, TTIP) currently under negotiation.

Under the chapter on “investor-state dispute settlement” (ISDS) companies could sue governments in private international tribunals, demanding taxpayer compensation for public interest policies that allegedly limit their profits – such as health and environmental protections. One only has to look at investor suits based on similar treaties to get a taste of what’s to come: tobacco giant Philip Morris is suing Uruguay and Australia over health warnings on cigarette packs; multinational polluter Vattenfall is seeking over US$3.7 billion from Germany following a democratic decision to phase out of nuclear energy; and oil and gas company Lone Pine is suing Canada for CAN$250 million after the province of Quebec imposed a moratorium on shale gas extraction (fracking) over environmental concerns.

In the face of fierce public opposition to the granting of these extraordinary powers to foreign investors, business associations as well as lawyers who make money from investor-state claims have begun a misleading propaganda drive. Their strategy: to appease the public by downplaying the risks of investment arbitration and to divert attention from the fundamental problems of the system by publicly supporting the EU’s cosmetic reforms around the edges. Behind closed doors, however, they are lobbying hard to ensure that the reforms don’t go too far.

Turning up the lobbying heat

The business sector went on the offensive as soon as the European Commission, in response to public outcry, announced that it would freeze the negotiations over the investor rights in TTIP and consult the public on the issue. This was also true of law firms with vested interests in profiting from such investor disputes. UK-based Hogan Lovells, one of the many law firms cashing in when investors sue states, urged its corporate clients: “It will be paramount for the EU and US business community to voice their views in support of strong investment protections and a robust ISDS mechanism in the consultation process.” Law firm Convington & Burling took the same line: “Now is a critical time to communicate the value of strong and effective investor state provisions. We urge companies and associations to make sure their voices are heard in this process.”

On 6 March 2014, BusinessEurope, the European employers’ federation and one of the most powerful corporate lobby groups in Brussels, held a full-day internal seminar on investment. More than 40 business lobbyists packed the room, including several from companies which have already sued countries under existing investment treaties such as Veolia, Philip Morris, Telefónica, Repsol, GDF Suez, and Siemens. On their agenda was an assessment of the “success, backlash and prospects” of investor-state arbitration and an “open discussion” with two leading EU investment negotiators.i

Such strategising also took place in other business fora. In an internal meeting of the European chemical lobby Cefic on 31 March, it was considered “important to support the Commission” on ISDS in TTIP, to “work with BusinessEurope” in a special “task force”, “develop comments”, “organise events”, “encourage companies/individuals” to respond to the EU consultation and to “participate to major events eg at the EP”. “Main NGO criticisms” were also to be challenged.ii

The joint strategising seems to have been highly efficient. In mid-March, BusinessEurope and AmCham EU (“speaking for American business in Europe”) held a joint media briefing for journalists from major EU newspapers, advocating for investor-state arbitration in TTIP. At the end of March, the Federation of Germany Industries (BDI), one of the most powerful members of BusinessEurope, published a 28-page long “Roadmap for Improved International Investment Agreements”. BusinessEurope followed with its own position paper in early May. Dozens of hearings and public events followed in which the business lobby put its message across.

Cosmetic changes, not real reforms

As more and more countries are questioning and even abandoning investor-state arbitration in previously agreed treaties because of negative impacts against the public interest, business is increasingly aware that certain reforms are needed if the regime is to be re-legitimised and maintained on a global scale. But from their point of view, the ‘reforms’ must not go too far: lawyers and business lobby groups such as the BDI and BusinessEurope support amending investment rules around the edges (transparency, more consistent rulings, including through an appeal mechanism...) without touching their problematic core (excessive property rights for investors and arbitrator power). That approach is notably in line with the agenda of the European Commission as outlined in its public consultation document (see Annex: Commission ISDS reform plan is an echo chamber of business views).

Business has for years warned the Commission that it would not tolerate real reforms. In a meeting with officials in November 2010, BusinessEurope stressed that it would “not [be] comfortable with any limitation/ reduction of the current level of protection” under existing EU member state investment treaties, which could “result, for example, from EP [European Parliament] and civil society pressure to pursue other policy objectives”.iii During a meeting in July 2011, the European Services Forum (ESF) – an influential lobby group banding together global service players such as Deutsche Bank, The CityUK, and Telefónica – told Commission officials that industry would oppose any deal in which investment protection was “traded off against public policy objectives, including human and labour rights”.iv

In another intimate get together with EU negotiators in November 2012, BusinessEurope and the ESF, “expressed worries that the EU will give away too much” in negotiations with countries such as Canada (and later the US) by accepting their reforms from the context of the North American Free Trade Agreement (NAFTA).v According to an otherwise heavily censored meeting report released under the EU’s Freedom of Information law, the US Business Coalition for Transatlantic Trade (BCTT) also raised concerns with EU investment negotiators in December 2013 “that TTIP negotiations would lead to a lowering of the level of protection… which would be not only an unwelcomed consequence in the bilateral context, but also a bad precedent” for future treaties.vi

Commission reassures industry

Again and again, the Commission has assured industry that it should not fear real reforms that would actually curtail investor rights. In a meeting with BusinessEurope and the ESF in November 2012, it told industry that “there were no basis for such worries” as the Commission’s “intention was to keep the highest possible level of [investor] protection in the EU agreements”.vii

This echoes Commission statements to EU member states, for example, with regards to the so-called “fair and equitable treatment” standard – a catch-all clause which investors have used as a carte blanche to sue states for any regulations that could be deemed to affect their profits. In public, the Commission claims that it will clearly define the standard through a “closed list” of a “limited set of basic rights” – to prevent arbitrators from interpreting it in overly investor-friendly ways. In meetings behind closed doors with member states, however, it has told them that the “closed list” still leaves a lot of room for interpretation.1 So it seems that the EU’s ‘clarifications’ of the investor right would not stop creative lawyers and arbitrators from turning it against public interest legislation.

Interestingly, investment lawyers also see it that way. Jonathan Kallmer, a former US investment negotiator now with law firm Crowell Moring recently said about the EU’s approach to the standard: “I actually don’t see it… as adding a whole lot of precision to the ‘fair and equitable treatment’ obligation in particular. I actually think, from the perspective of the greedy, avaricious lawyer, that’s a very good obligation to work with.”

Business and Commission: partners in spin

On 22 November 2013, the Commission met with EU member states to craft a joint TTIP communication strategy (leaked here) to “reduce fears and avoid a mushrooming of doubts”. According to an internal annotated agenda for the meeting obtained by Greenpeace Austria, the Commission wanted business to play a key role in this PR effort.viii

Ever since, business and the Commission have been putting out strikingly similar messages around controversial TTIP issues such as investor-state arbitration. Arbitrators and investment lawyers have also joined this PR campaign, for example, via opinion pieces for the media (which they publish as professors or simple barristers, not disclosing their vested financial interests in the systemix). This is not surprising. Investment arbitration is big business for such lawyers. The tabs racked up by elite law firms can be US$1,000 per hour, per lawyer in investment treaty cases, with whole teams handling them. The arbitrators also line their pockets, earning daily fees of US$3,000 and more. The more trade and investment deals with investor-state arbitration the EU signs, the more investor rights they contain, the more business for the burgeoning arbitration industry.

Like the Commission, investment lawyers and industry lobby groups have denounced the “populist fire” directed at the “mega-project” TTIP as a “dangerous mix of false allegations, fear-mongering and lies”. And like the Commission, they are now addressing these “common misconceptions about ISDS” (BusinessEurope).

However, a close look at the corporate PR offensive shows that it is business that is misrepresenting the facts about the international investment regime. Let us guide you through the top-10 misleading claims used by investment lawyers and corporate lobbyists to defend the corporate privileges.

Misleading claim #1: More investor rights bring more investment

Reality: The investor rights do not bring the economic benefits claimed for them

During a Commission stakeholder event in March 2014, ESF lobbyist Pascal Kerneis claimed that “there is an obvious strong link” between investment agreements and the amount of investment a country attracts. According to Kerneis, EU member states’ investment pacts “made the EU the biggest receiver of investors and the biggest investor across the world”. Powerful business lobby group the International Chamber of Commerce (ICC) has also argued that “strong investment protection standards should be a policy priority for all governments in order to promote new waves of prosperity-enhancing FDI,” (foreign direct investment).

But the evidence on the link between investment treaties and investment flows is ambiguous. While some econometric studies find that investment treaties do attract investment, others find no effect at all. Qualitative research suggests that the treaties are not a decisive factor in whether investors go abroad. When, in 2010, the European Commission interviewed 300 European companies about the relevance of the treaties, half of them did not even know what an investment agreement was.

Governments have also begun to realise that the promise of foreign investment has not been fulfilled. Shortly before South Africa cancelled some of its bilateral investment treaties (BITs) with EU member states from the 1990s, a government official said: “We do not receive significant inflows of FDI from many partners with whom we have BITs, and at the same time, we continue to receive investment from jurisdictions with which we have no BITs. In short, BITs are not decisive in attracting investment.”

Misleading claim #2: Investor-state arbitration is independent and impartial

Reality: Arbitrators have a vested interest in pleasing investors

BusinessEurope justifies investor-state arbitration this way: As “the separation of powers and judiciary independence and impartiality is not always evident in some states”, arbitration “provides an opportunity to seek for independent and impartial judicial decisions, based on technical and legal grounds”. The system is also described as “neutral”, “fact-based”, and “objective”.

In reality, investor-state arbitration has a built-in pro-investor bias. Disputes are usually decided by a tribunal of three for-profit arbitrators. Unlike judges, they do not have a flat salary, but are paid per case, earning daily fees of US$3,000 and more. They are, as investment lawyer Lord Goldsmith put it, “judges for hire; dependent on their next appointment for their fees”. In a one-sided system where only the investors can bring claims, this creates a strong incentive to side with them – as investor-friendly rulings pave the way for more claims, appointments and income in the future.

Empirical research by Associate Professor Gus van Harten from Toronto University indeed reveals that arbitral tribunals tend to resolve contested legal issues in investment treaty law with expansive interpretations. These enhance “the compensatory promise of the system for claimants and, in turn, the risk of liability for respondent states”, he writes, adding: “If the system is meant to provide an impartial and independent adjudicative process based on principles of rationality, fairness, and neutrality, then the interpretation and application of the law should reflect a degree of evenness between claimants and respondent states in the resolution of contentious legal issues arising from ambiguous treaty texts.” But the evidence suggests that arbitrators tend to favour the claimant.

Misleading claim #3: The system is not pro-investor, but fair

Reality: Only states can be sued, not investors

Business lobbyists and investment lawyers refer to statistics on the known outcomes of investor suits against states to argue that investment arbitration is fair. According to the United Nations Conference on Trade and Development (UNCTAD), of the 247 concluded cases known by the end of 2013, around 43% were decided in the state’s favour and 31% in favour of the investor. The rest (26%) were settled. In the words of Jonathan Kallmer of law firm Crowell & Moring: “[G]overnments win more than investors, and even when investors win, they typically recover only a fraction – typically between 3 and 12 percent – of the amount that they claim in damages.”

So, is investment arbitration fair? No. First, it is non-reciprocal. Investors cannot be sued, for example, when they violate human rights. They might not win every case, but only states can lose in the sense of having to pay compensation. How anyone can call such a system “fair” and deny that it is “pro-investor”, frankly, is a bit of a mystery.

Second, it is likely that many of the settled cases – 26% of known decisions – involve payments or other concessions for the investor. Germany, for example, settled its first dispute with Swedish energy company Vattenfall by agreeing to water down environmental standards imposed on one of Vattenfall’s coal-fired power plants. Abitibi-Bowater’s case against Canada – launched because a provincial government had taken back water and timber rights after the company closed its mills – was settled when Canada paid US$130 million to the paper maker. When settlements contain something for the investor, the above statistics look pretty pro-investor.

Third, investment arbitration is not just about the final awards. Tribunals tend to resolve contested legal issues in investment law with expansive, pro-investor interpretations (see claim #2 above).

And finally, on the costs: it is true that, on average, investors win less than they claim. But individual cases can seriously raid public budgets. In 2003, the Czech Republic had to compensate a media corporation with the equivalent of the country’s entire health budget (US$ 354 million). The highest known damages to date, US$2.3 billion ordered against Ecuador to pay to an oil company, amount to more than 2,5% of the country’s GDP. Legal costs can also be substantial and are not always awarded to the winning party. The Philippines government, for example, spent US$58 million to defend two cases against German airport operator Fraport – the equivalent of the salaries of 12,500 teachers for 1 year.x

Misleading claim #4: Investment deals only protect investors against extreme sovereign abuse

Reality: Investment deals are a powerful tool for corporations to challenge legitimate legislation to protect public health or the environment

Industry has argued that it is “categorically not true” that investment arbitration “will allow companies to sue governments over changes in regulation pertaining to health, environment, consumer protection etc if these changes negatively affect the profits of companies”. Rather, they claim, cases are “relatively rare” and brought in “extreme” situations (ICC) – such as expropriation or discrimination or an otherwise “arbitrary or capricious action of the state” (Lord Goldsmith of law firm Debevoise & Plimpton). This is because “the grounds for bringing a claim under investment agreements are narrowly defined” (ICC).

Philip Morris’ investor-state challenge of Australia’s plain tobacco packaging law is a good example to show that investment treaties are not that harmless. The law applies to all tobacco producers, i.e. is non-discriminatory. It was upheld by Australia’s High Court which did not consider it an expropriation of property (expropriation is one of the bases for awarding damages in investment arbitration). It is based on extensive research and supported by leading public health experts for reducing the appeal of smoking. So, Philip Morris uses an investor-state claim to attack public health legislation that is non-discriminatory, not an expropriation, in line with Australia’s constitution and backed by scientific evidence. If the grounds for investor-state arbitration were as narrowly defined as industry lobbyists claims, the lawsuit wouldn’t even exist.

Misleading claim #5: Laws and regulations cannot be revoked by investment tribunals

Reality: The mere threat of a multi-billion-dollar lawsuit can be enough to kill legislation

In its position paper on investor-state dispute settlement (ISDS), BusinessEurope stresses that “under no circumstances does a ruling under ISDS require a state to revoke a law, regulation or any other measure, even in cases where the particular law, regulation or measure has been found to violate the bilateral agreement. The ISDS arbitrators only allocate awards”, i.e. order states to pay compensation. In an op-ed for Austrian daily Der Standard, arbitrator August Reinisch, too, wrote that tribunals “cannot prohibit” a state to act “in the context of its right to regulate”.

This is not true. While investor-state tribunals typically award monetary compensation, they absolutely have the power to order governments to revoke a disputed measure. In its claim against Australia, Philip Morris, for example, is not only requesting compensation, but also that the country suspends or revokes its anti-smoking law.

Even if future EU agreements provided “absolute clarity that a state cannot be forced to repeal a measure”, as the European Commission intends, that would not be the full story. Even if arbitrators cannot force states to revoke a law, this won’t stop governments from doing so ‘voluntarily’ once a multi-billion-dollar lawsuit has been filed or threatened in order to avoid the potential risk of a huge fine.

Precedents include the watering down of environmental restrictions for a coal-fired power plant when Germany settled a claim with Swedish energy company Vattenfall; New Zealand’s announcement delaying the enactment of plain-tobacco-packaging legislation until after Philip Morris’ claim against Australia’s anti-smoking rules has been resolved; and Ethyl vs Canada, which Canada settled with a US$ 16 million payment and withdrawal of the disputed trade restrictions for a toxic chemical. This chilling effect on government regulation has arguably become the main function of the global investment regime.

Misleading claim #6: ISDS is an established system which has not curbed the right to regulate

Reality: The last two decades have seen the rise of an investment arbitration regime which is used by powerful companies to put the squeeze on public interest regulation

To dodge growing criticism, advocates of investor-state arbitration characterise it as a well-oiled, long-standing system functioning since 1959 when Germany and Pakistan inked the first investment treaty. With over 1400 agreements signed by EU member states alone, the latter have ample experience with this “routine ingredient of international economic diplomacy” (BusinessEurope). In spite of their “ubiquitous nature”, business sees “little to no evidence that these agreements have curtailed a country’s ability to regulate” (law firm Covington & Burling).

However, while investor-state arbitration clauses have been included in investment deals since the late 1960s (the Germany-Pakistan treaty only provided for state-to-state disputes), investment arbitration as we know it today only emerged in the last two decades. In that period, the number of cases exploded: from a handful in the mid-1990s to a total of 568 known disputes at the end of 2013. The stakes have also skyrocketed: in 2011-13, 165 investor claims involved corporations demanding at least US$100 million from states. And while the system was originally designed for instances of direct expropriation, multinationals are using it more and more to chase down what they say are lost profits as a result of public policy.

While often anecdotal, there is evidence that proposed and adopted laws on public health and environmental protection have been abandoned or watered down because of proposed or actual corporate claims for multi-million dollar damages. Five years after NAFTA’s investor rights came into force, a former Canadian government official told a journalist: “I’ve seen the letters from the New York and DC law firms coming up to the Canadian government on virtually every new environmental regulation…. Virtually all of the new initiatives were targeted and most of them never saw the light of day.” (See misleading claim #5 for concrete examples of regulatory chill).

It is precisely because of negative impacts against the public interest that more and more countries are disengaging from investor-state arbitration globally. South Africa, Bolivia, Ecuador, Venezuela, and Indonesia have started to cancel or phase out existing investment treaties. In Ecuador, a commission is investigating if the country’s remaining investment deals are beneficial and in line with its constitution. India is reportedly also reviewing its treaties.

Misleading claim #7 – EU members have not been sued under existing treaties with the US

Reality: EU states have certainly been challenged by US investors – and the likelihood of corporate claims will increase substantially under TTIP

The business lobby often refers to the nine existing bilateral investment accords between the EU’s Eastern European member statesxi and the US to downplay the risks of investment arbitration in TTIP. BusinessEurope writes in its position paper: “Concerns have been raised that TTIP may lead to the launch of numerous claims by US companies against EU Member States. Nevertheless, US companies could have already done this under the current agreements between the US and EU Member States. This is not however the case.”

This is selective blindness. Nine cases by US investors against EU countries are publicly known.xii Poland, for example, was ordered to pay US$ 16.3 million plus interest and fees to agribusiness giant Cargill because of quotas that the country imposed in preparation of its accession to the EU’s common agricultural policy. There’s also the example of US cosmetics billionaire Ronald Lauder who sued the Czech Republic first under the US-Czech bilateral investment treaty, and then again under the Netherlands-Czech one (the investment was structured via a Dutch vehicle). While the first case was dismissed, in the latter, the Czech Republic was ordered to pay US$ 354 million, the equivalent of the country’s entire health budget at the time.

More importantly, according to figures published by Public Citizen, the existing investment pacts between nine EU member states and the US cover only a very small share – less than 8% – of US companies in the EU. Expanding investor-state arbitration to the remaining 92% of US businesses operating in the other 19 EU member states would dramatically increase the likelihood of disputes between US investors and EU governments.

Misleading claim #8: Without investment arbitration the investor rights cannot be enforced

Reality: Nothing would hinder EU companies from enforcing the investor rights in local courts – but pro-investor arbitrators are more likely to rule in their favour than independent judges

Business frequently stresses that investor-state arbitration is “often the only means to obtain redress when an alleged breach of an investment agreement occurs” because “in many countries investment agreements are not directly enforceable in local courts” (ICC). BusinessEurope gives this example: “If a domestic US law is adopted after TTIP enters into force and its content violates the agreement, such a law can still be found constitutional. In this case, the only possibility for a European investor to seek the protection agreed in TTIP is to bring the claim to international arbitration.”

According to analysis by Jan Kleinheisterkamp from the London School of Economics the example is misleading because “international commitments by the US to European investors can very well be made applicable in US courts and even confer right of action to individuals.” So, it is entirely possible that EU investors could enforce the rights granted to them in TTIP by suing the US government in US courts, meaning ISDS would be unnecessary. This would only require that TTIP is implemented through legislation by Congress.

But there’s an interesting honesty in BusinessEurope’s example. It describes a scenario in which a law is in line with a country’s constitution, but violates an international investment treaty. This could happen to Australia’s plain tobacco packaging law. In a legal challenge by Big Tobacco, Australia’s High Court upheld it as constitutional, arguing that the law did not constitute an expropriation. But the for-profit arbitrators deciding Philip Morris’ parallel investor claim could come to a different conclusion, based on the much broader concept of expropriation in international investment law.

This shows what investment arbitration is really about: granting multinationals more generous property rights than any domestic firm, any community, any individual is granted by domestic law – and providing them with a parallel, exclusive legal system to claim these superior rights.

Misleading claim #9: We need ISDS in TTIP to get it in a deal with China

Reality: China wants the corporate rights as much as the EU – and granting them to Chinese investors is no less dangerous than granting them to US businesses

Business lobbyists argue that investor-state dispute settlement (ISDS) in TTIP is vital as a precedent for other trade deals, like with China. According to BusinessEurope, “it would seem inconsistent, arbitrary, unjustified and unreliable from the part of the EU to view ISDS as a central element in an investment treaty with emerging and developing countries while insisting on not having such a mechanism in a treaty with OECD members. Such a precedent would weaken the ability of the EU to include ISDS in future [bilateral investment treaties and free trade agreements] with non-OECD countries, for instance with BRICS” (Brazil, Russia, India, China, South Africa).

It is questionable that TTIP will make these countries more or less likely to enter into a treaty with the EU. China, for example, has already built up a dense network of more than 130 bilateral investment treaties, aggressively catering for the interests of its companies abroad. The world’s coming economic superpower wants an EU-China agreement no less than the EU.

More importantly, such an agreement would be no less dangerous than TTIP, allowing Chinese corporations to sue EU governments – and vice versa – when they change their laws.

Misleading claim #10: ISDS in TTIP is the ultimate chance to fix the problems of the past

Reality: If you want to fix the problems, abandon investor-state arbitration, in TTIP and elsewhere

Business disingenuously argues that enshrining investment arbitration in TTIP is the best way to reform ISDS. As lobbyists of the Unites States Council for International Business and the Danish and Swedish Industry Federations wrote in a joint letter to the Financial Times: “We have a unique possibility of making a modern ISDS agreement which can balance the legitimate needs of governments to regulate public priorities with the legitimate needs of businesses to have reasonable and predictable protection of investments.” Such an agreement, they argued, would “create a global gold standard” which other countries would look to as a model.

This stated objective of re-balancing the international investment regime may be laudable. But the corporate (and European Commission’s) ‘reform’ agenda for ISDS shows no genuine attempt to pursue it. It offers sweeping rights but demands no obligations for investors. It fails to protect states’ right to regulate. And it fails to tackle the serious flaws of investor-state arbitration, surrendering the judgement over what policies are right or wrong and how much taxpayer money should be paid to compensate investors to for-profit arbitrators with a vested interest in this privatised legal system.xiii

Fixing the problems of the past would mean rejecting the flawed investor-state arbitration system entirely, and establishing control mechanisms to halt abuse by transnational corporations.

Will big business get its corporate super-constitution?

In the months to come, the public debate about the corporate rights in EU trade deals is likely to heat up. We can expect quite a fray over the outcome of the Commission’s consultation which it will try to spin so that it supports its own ‘reform’ agenda. We might also see the conclusion of the negotiations over the EU-Canada trade agreement (CETA), a blueprint for TTIP and the first EU-wide deal including investor-state arbitration which the European Parliament will have to vote on.

Those who would profit from the excessive investor privileges – investment lawyers, arbitrators and businesses – are likely to step up the fight for their privileges. The entry of corporate-funded think tanks into the debate is a first indication of that (“with the purpose of getting a better factual understanding” of and “demystifying” ISDS as Brussels-based ultra-liberal ECIPE puts it).

But the corporate stakes in this debate go far beyond TTIP and CETA. The global investment regime is at a historic crossroads: in one direction, countries are questioning and even fleeing investor-state arbitration. In the other, a number of “megaregional-agreements” with “systemic implications” for global investment rule-making are under negotiation, with TTIP and CETA being two of them.xiv

If the EU signs any of these mega-deals with investment arbitration in it, this will greatly re-legitimise the contested investor privileges globally. Also, it will subject vast shares of global investment stocks, which are to date not covered by investment treaties, to arbitrator power. This would move the world a significant step further towards a global corporate super-constitution, enforced by corporate ‘courts’.

The challenges we are facing – from combating climate change to preventing another financial crisis – make that scenario unthinkable. Our societies won’t be able to confront them when they are stuck in a legal straight-jacket, with the constant threat of multi-billion corporate disputes against policy changes. Investment arbitration belongs nowhere else but in the dustbin of the trade debate.

Endnotes

iAgenda for BusinessEurope Seminar on Investment, Challenges Investors face abroad and the EU investment policy, 6 March 2014. On file with CEO.

iiPresentation on Investor State Dispute Settlement – ISDS by Freya Baetens and Nicole Maréchal, 31 March 2014. On file with CEO.

iiiEuropean Commission (2010): Flash report of a meeting with Adrian van den Hoven & Anka Schild of BusinessEurope, dated 25 November 2010. Obtained through access to documents requested under the information disclosure regulation. On file with CEO.

ivInternal European Commission report of a meeting on EU investment policy and the EU-US investment dialogue, organised by AmCham EU on 8 July 2011. Obtained through access to documents requested under the information disclosure regulation. On file with CEO.

vEuropean Commission (2012): Report of a meeting with BusinessEurope and ESF on investment, dated 7 November 2012. Obtained through access to documents requested under the information disclosure regulation. On file with CEO.

viEuropean Commission (2013): Minutes of a lunch meeting with BCTT on TTIP, December. Obtained through access to documents requested under the information disclosure regulation. On file with CEO.

viiSee endnote 5.

viiiEuropean Commission (2013): TTIP Communication Meeting with representatives of Member States, 22 November 2013, dated 18 November 2013. Obtained through access to documents requested under the information disclosure regulation. On file with CEO. Courtesy of Greenpeace Austria.

ixExamples include the opinion piece by arbitrator August Reinisch in Austrian daily Der Standard, dated 29 January 2014, and a letter to the editor of the Financial Times by investment lawyer Todd Weiler, dated 25 March 2014.

xCorporate Europe Observatory/ Transnational Institute (2012): Profiting from Injustice. How law firms, arbitrators and financiers are fuelling an investment arbitration boom, pp. 15, 26.

xiBulgaria, Croatia, Czech Republic, Estonia, Latvia, Lithuania, Poland, Romania and Slovakia.

xiiSee UNCTAD’s database of treaty-based investor-state disputes: http://iiadbcases.unctad.org/.

xivUNCTAD (2014): World Investment Report 2014. Investing in the SDGs: An action plan, p.x.

  • 1. During a meeting with EU member states on 11 April 2014, the Commission responded to concerns raised by Spain and Germany, assuring them that thanks to the "such as" formulation in the 'closed' list for fair and equitable treatment clause, there was enough room for an expansive interpretation. A leaked report of this meeting, dated 11 April, is on file with CEO.
Trade unions are opposed to the corporate rights. Consumer groups, environmentalists and digital rights activists, too. All (centre-)left groups in the European Parliament have voted against it. So have the French Assemblée Nationale and the Dutch Parliament. Media reports continue to generate bad headlines. But according to the public consultation on the issue, set to close this Sunday, the European Commission still wants to enshrine extreme powers for corporations in the EU-US trade deal (Transatlantic Trade and Investment Partnership, TTIP) currently under negotiation.Under the chapter on “investor-state dispute settlement” (ISDS) companies could sue governments in private international tribunals, demanding taxpayer compensation for public interest policies that allegedly limit their profits – such as health and environmental protections. One only has to look at investor suits based on similar treaties to get a taste of what’s to come: tobacco giant Philip Morris is suing Uruguay and Australia over health warnings on cigarette packs; multinational polluter Vattenfall is seeking over US$3.7 billion from Germany following a democratic decision to phase out of nuclear energy; and oil and gas company Lone Pine is suing Canada for CAN$250 million after the province of Quebec imposed a moratorium on shale gas extraction (fracking) over environmental concerns.In the face of fierce public opposition to the granting of these extraordinary powers to foreign investors, business associations as well as lawyers who make money from investor-state claims have begun a misleading propaganda drive. Their strategy: to appease the public by downplaying the risks of investment arbitration and to divert attention from the fundamental problems of the system by publicly supporting the EU’s cosmetic reforms around the edges. Behind closed doors, however, they are lobbying hard to ensure that the reforms don’t go too far.Turning up the lobbying heatThe business sector went on the offensive as soon as the European Commission, in response to public outcry, announced that it would freeze the negotiations over the investor rights in TTIP and consult the public on the issue. This was also true of law firms with vested interests in profiting from such investor disputes. UK-based Hogan Lovells, one of the many law firms cashing in when investors sue states, urged its corporate clients: “It will be paramount for the EU and US business community to voice their views in support of strong investment protections and a robust ISDS mechanism in the consultation process.” Law firm Convington & Burling took the same line: “Now is a critical time to communicate the value of strong and effective investor state provisions. We urge companies and associations to make sure their voices are heard in this process.”On 6 March 2014, BusinessEurope, the European employers’ federation and one of the most powerful corporate lobby groups in Brussels, held a full-day internal seminar on investment. More than 40 business lobbyists packed the room, including several from companies which have already sued countries under existing investment treaties such as Veolia, Philip Morris, Telefónica, Repsol, GDF Suez, and Siemens. On their agenda was an assessment of the “success, backlash and prospects” of investor-state arbitration and an “open discussion” with two leading EU investment negotiators.iSuch strategising also took place in other business fora. In an internal meeting of the European chemical lobby Cefic on 31 March, it was considered “important to support the Commission” on ISDS in TTIP, to “work with BusinessEurope” in a special “task force”, “develop comments”, “organise events”, “encourage companies/individuals” to respond to the EU consultation and to “participate to major events eg at the EP”. “Main NGO criticisms” were also to be challenged.iiThe joint strategising seems to have been highly efficient. In mid-March, BusinessEurope and AmCham EU (“speaking for American business in Europe”) held a joint media briefing for journalists from major EU newspapers, advocating for investor-state arbitration in TTIP. At the end of March, the Federation of Germany Industries (BDI), one of the most powerful members of BusinessEurope, published a 28-page long “Roadmap for Improved International Investment Agreements”. BusinessEurope followed with its own position paper in early May. Dozens of hearings and public events followed in which the business lobby put its message across.Cosmetic changes, not real reformsAs more and more countries are questioning and even abandoning investor-state arbitration in previously agreed treaties because of negative impacts against the public interest, business is increasingly aware that certain reforms are needed if the regime is to be re-legitimised and maintained on a global scale. But from their point of view, the ‘reforms’ must not go too far: lawyers and business lobby groups such as the BDI and BusinessEurope support amending investment rules around the edges (transparency, more consistent rulings, including through an appeal mechanism...) without touching their problematic core (excessive property rights for investors and arbitrator power). That approach is notably in line with the agenda of the European Commission as outlined in its public consultation document (see Annex: Commission ISDS reform plan is an echo chamber of business views).Business has for years warned the Commission that it would not tolerate real reforms. In a meeting with officials in November 2010, BusinessEurope stressed that it would “not [be] comfortable with any limitation/ reduction of the current level of protection” under existing EU member state investment treaties, which could “result, for example, from EP [European Parliament] and civil society pressure to pursue other policy objectives”.iii During a meeting in July 2011, the European Services Forum (ESF) – an influential lobby group banding together global service players such as Deutsche Bank, The CityUK, and Telefónica – told Commission officials that industry would oppose any deal in which investment protection was “traded off against public policy objectives, including human and labour rights”.ivIn another intimate get together with EU negotiators in November 2012, BusinessEurope and the ESF, “expressed worries that the EU will give away too much” in negotiations with countries such as Canada (and later the US) by accepting their reforms from the context of the North American Free Trade Agreement (NAFTA).v According to an otherwise heavily censored meeting report released under the EU’s Freedom of Information law, the US Business Coalition for Transatlantic Trade (BCTT) also raised concerns with EU investment negotiators in December 2013 “that TTIP negotiations would lead to a lowering of the level of protection… which would be not only an unwelcomed consequence in the bilateral context, but also a bad precedent” for future treaties.viCommission reassures industryAgain and again, the Commission has assured industry that it should not fear real reforms that would actually curtail investor rights. In a meeting with BusinessEurope and the ESF in November 2012, it told industry that “there were no basis for such worries” as the Commission’s “intention was to keep the highest possible level of [investor] protection in the EU agreements”.viiThis echoes Commission statements to EU member states, for example, with regards to the so-called “fair and equitable treatment” standard – a catch-all clause which investors have used as a carte blanche to sue states for any regulations that could be deemed to affect their profits. In public, the Commission claims that it will clearly define the standard through a “closed list” of a “limited set of basic rights” – to prevent arbitrators from interpreting it in overly investor-friendly ways. In meetings behind closed doors with member states, however, it has told them that the “closed list” still leaves a lot of room for interpretation.1 So it seems that the EU’s ‘clarifications’ of the investor right would not stop creative lawyers and arbitrators from turning it against public interest legislation.Interestingly, investment lawyers also see it that way. Jonathan Kallmer, a former US investment negotiator now with law firm Crowell Moring recently said about the EU’s approach to the standard: “I actually don’t see it… as adding a whole lot of precision to the ‘fair and equitable treatment’ obligation in particular. I actually think, from the perspective of the greedy, avaricious lawyer, that’s a very good obligation to work with.”Business and Commission: partners in spinOn 22 November 2013, the Commission met with EU member states to craft a joint TTIP communication strategy (leaked here) to “reduce fears and avoid a mushrooming of doubts”. According to an internal annotated agenda for the meeting obtained by Greenpeace Austria, the Commission wanted business to play a key role in this PR effort.viiiEver since, business and the Commission have been putting out strikingly similar messages around controversial TTIP issues such as investor-state arbitration. Arbitrators and investment lawyers have also joined this PR campaign, for example, via opinion pieces for the media (which they publish as professors or simple barristers, not disclosing their vested financial interests in the systemix). This is not surprising. Investment arbitration is big business for such lawyers. The tabs racked up by elite law firms can be US$1,000 per hour, per lawyer in investment treaty cases, with whole teams handling them. The arbitrators also line their pockets, earning daily fees of US$3,000 and more. The more trade and investment deals with investor-state arbitration the EU signs, the more investor rights they contain, the more business for the burgeoning arbitration industry.Like the Commission, investment lawyers and industry lobby groups have denounced the “populist fire” directed at the “mega-project” TTIP as a “dangerous mix of false allegations, fear-mongering and lies”. And like the Commission, they are now addressing these “common misconceptions about ISDS” (BusinessEurope).However, a close look at the corporate PR offensive shows that it is business that is misrepresenting the facts about the international investment regime. Let us guide you through the top-10 misleading claims used by investment lawyers and corporate lobbyists to defend the corporate privileges.Misleading claim #1: More investor rights bring more investmentReality: The investor rights do not bring the economic benefits claimed for themDuring a Commission stakeholder event in March 2014, ESF lobbyist Pascal Kerneis claimed that “there is an obvious strong link” between investment agreements and the amount of investment a country attracts. According to Kerneis, EU member states’ investment pacts “made the EU the biggest receiver of investors and the biggest investor across the world”. Powerful business lobby group the International Chamber of Commerce (ICC) has also argued that “strong investment protection standards should be a policy priority for all governments in order to promote new waves of prosperity-enhancing FDI,” (foreign direct investment).But the evidence on the link between investment treaties and investment flows is ambiguous. While some econometric studies find that investment treaties do attract investment, others find no effect at all. Qualitative research suggests that the treaties are not a decisive factor in whether investors go abroad. When, in 2010, the European Commission interviewed 300 European companies about the relevance of the treaties, half of them did not even know what an investment agreement was.Governments have also begun to realise that the promise of foreign investment has not been fulfilled. Shortly before South Africa cancelled some of its bilateral investment treaties (BITs) with EU member states from the 1990s, a government official said: “We do not receive significant inflows of FDI from many partners with whom we have BITs, and at the same time, we continue to receive investment from jurisdictions with which we have no BITs. In short, BITs are not decisive in attracting investment.”Misleading claim #2: Investor-state arbitration is independent and impartialReality: Arbitrators have a vested interest in pleasing investorsBusinessEurope justifies investor-state arbitration this way: As “the separation of powers and judiciary independence and impartiality is not always evident in some states”, arbitration “provides an opportunity to seek for independent and impartial judicial decisions, based on technical and legal grounds”. The system is also described as “neutral”, “fact-based”, and “objective”.In reality, investor-state arbitration has a built-in pro-investor bias. Disputes are usually decided by a tribunal of three for-profit arbitrators. Unlike judges, they do not have a flat salary, but are paid per case, earning daily fees of US$3,000 and more. They are, as investment lawyer Lord Goldsmith put it, “judges for hire; dependent on their next appointment for their fees”. In a one-sided system where only the investors can bring claims, this creates a strong incentive to side with them – as investor-friendly rulings pave the way for more claims, appointments and income in the future.Empirical research by Associate Professor Gus van Harten from Toronto University indeed reveals that arbitral tribunals tend to resolve contested legal issues in investment treaty law with expansive interpretations. These enhance “the compensatory promise of the system for claimants and, in turn, the risk of liability for respondent states”, he writes, adding: “If the system is meant to provide an impartial and independent adjudicative process based on principles of rationality, fairness, and neutrality, then the interpretation and application of the law should reflect a degree of evenness between claimants and respondent states in the resolution of contentious legal issues arising from ambiguous treaty texts.” But the evidence suggests that arbitrators tend to favour the claimant.Misleading claim #3: The system is not pro-investor, but fairReality: Only states can be sued, not investorsBusiness lobbyists and investment lawyers refer to statistics on the known outcomes of investor suits against states to argue that investment arbitration is fair. According to the United Nations Conference on Trade and Development (UNCTAD), of the 247 concluded cases known by the end of 2013, around 43% were decided in the state’s favour and 31% in favour of the investor. The rest (26%) were settled. In the words of Jonathan Kallmer of law firm Crowell & Moring: “[G]overnments win more than investors, and even when investors win, they typically recover only a fraction – typically between 3 and 12 percent – of the amount that they claim in damages.”So, is investment arbitration fair? No. First, it is non-reciprocal. Investors cannot be sued, for example, when they violate human rights. They might not win every case, but only states can lose in the sense of having to pay compensation. How anyone can call such a system “fair” and deny that it is “pro-investor”, frankly, is a bit of a mystery.Second, it is likely that many of the settled cases – 26% of known decisions – involve payments or other concessions for the investor. Germany, for example, settled its first dispute with Swedish energy company Vattenfall by agreeing to water down environmental standards imposed on one of Vattenfall’s coal-fired power plants. Abitibi-Bowater’s case against Canada – launched because a provincial government had taken back water and timber rights after the company closed its mills – was settled when Canada paid US$130 million to the paper maker. When settlements contain something for the investor, the above statistics look pretty pro-investor.Third, investment arbitration is not just about the final awards. Tribunals tend to resolve contested legal issues in investment law with expansive, pro-investor interpretations (see claim #2 above).And finally, on the costs: it is true that, on average, investors win less than they claim. But individual cases can seriously raid public budgets. In 2003, the Czech Republic had to compensate a media corporation with the equivalent of the country’s entire health budget (US$ 354 million). The highest known damages to date, US$2.3 billion ordered against Ecuador to pay to an oil company, amount to more than 2,5% of the country’s GDP. Legal costs can also be substantial and are not always awarded to the winning party. The Philippines government, for example, spent US$58 million to defend two cases against German airport operator Fraport – the equivalent of the salaries of 12,500 teachers for 1 year.xMisleading claim #4: Investment deals only protect investors against extreme sovereign abuseReality: Investment deals are a powerful tool for corporations to challenge legitimate legislation to protect public health or the environmentIndustry has argued that it is “categorically not true” that investment arbitration “will allow companies to sue governments over changes in regulation pertaining to health, environment, consumer protection etc if these changes negatively affect the profits of companies”. Rather, they claim, cases are “relatively rare” and brought in “extreme” situations (ICC) – such as expropriation or discrimination or an otherwise “arbitrary or capricious action of the state” (Lord Goldsmith of law firm Debevoise & Plimpton). This is because “the grounds for bringing a claim under investment agreements are narrowly defined” (ICC).Philip Morris’ investor-state challenge of Australia’s plain tobacco packaging law is a good example to show that investment treaties are not that harmless. The law applies to all tobacco producers, i.e. is non-discriminatory. It was upheld by Australia’s High Court which did not consider it an expropriation of property (expropriation is one of the bases for awarding damages in investment arbitration). It is based on extensive research and supported by leading public health experts for reducing the appeal of smoking. So, Philip Morris uses an investor-state claim to attack public health legislation that is non-discriminatory, not an expropriation, in line with Australia’s constitution and backed by scientific evidence. If the grounds for investor-state arbitration were as narrowly defined as industry lobbyists claims, the lawsuit wouldn’t even exist.Misleading claim #5: Laws and regulations cannot be revoked by investment tribunalsReality: The mere threat of a multi-billion-dollar lawsuit can be enough to kill legislationIn its position paper on investor-state dispute settlement (ISDS), BusinessEurope stresses that “under no circumstances does a ruling under ISDS require a state to revoke a law, regulation or any other measure, even in cases where the particular law, regulation or measure has been found to violate the bilateral agreement. The ISDS arbitrators only allocate awards”, i.e. order states to pay compensation. In an op-ed for Austrian daily Der Standard, arbitrator August Reinisch, too, wrote that tribunals “cannot prohibit” a state to act “in the context of its right to regulate”.This is not true. While investor-state tribunals typically award monetary compensation, they absolutely have the power to order governments to revoke a disputed measure. In its claim against Australia, Philip Morris, for example, is not only requesting compensation, but also that the country suspends or revokes its anti-smoking law.Even if future EU agreements provided “absolute clarity that a state cannot be forced to repeal a measure”, as the European Commission intends, that would not be the full story. Even if arbitrators cannot force states to revoke a law, this won’t stop governments from doing so ‘voluntarily’ once a multi-billion-dollar lawsuit has been filed or threatened in order to avoid the potential risk of a huge fine.Precedents include the watering down of environmental restrictions for a coal-fired power plant when Germany settled a claim with Swedish energy company Vattenfall; New Zealand’s announcement delaying the enactment of plain-tobacco-packaging legislation until after Philip Morris’ claim against Australia’s anti-smoking rules has been resolved; and Ethyl vs Canada, which Canada settled with a US$ 16 million payment and withdrawal of the disputed trade restrictions for a toxic chemical. This chilling effect on government regulation has arguably become the main function of the global investment regime.Misleading claim #6: ISDS is an established system which has not curbed the right to regulateReality: The last two decades have seen the rise of an investment arbitration regime which is used by powerful companies to put the squeeze on public interest regulationTo dodge growing criticism, advocates of investor-state arbitration characterise it as a well-oiled, long-standing system functioning since 1959 when Germany and Pakistan inked the first investment treaty. With over 1400 agreements signed by EU member states alone, the latter have ample experience with this “routine ingredient of international economic diplomacy” (BusinessEurope). In spite of their “ubiquitous nature”, business sees “little to no evidence that these agreements have curtailed a country’s ability to regulate” (law firm Covington & Burling).However, while investor-state arbitration clauses have been included in investment deals since the late 1960s (the Germany-Pakistan treaty only provided for state-to-state disputes), investment arbitration as we know it today only emerged in the last two decades. In that period, the number of cases exploded: from a handful in the mid-1990s to a total of 568 known disputes at the end of 2013. The stakes have also skyrocketed: in 2011-13, 165 investor claims involved corporations demanding at least US$100 million from states. And while the system was originally designed for instances of direct expropriation, multinationals are using it more and more to chase down what they say are lost profits as a result of public policy.While often anecdotal, there is evidence that proposed and adopted laws on public health and environmental protection have been abandoned or watered down because of proposed or actual corporate claims for multi-million dollar damages. Five years after NAFTA’s investor rights came into force, a former Canadian government official told a journalist: “I’ve seen the letters from the New York and DC law firms coming up to the Canadian government on virtually every new environmental regulation…. Virtually all of the new initiatives were targeted and most of them never saw the light of day.” (See misleading claim #5 for concrete examples of regulatory chill).It is precisely because of negative impacts against the public interest that more and more countries are disengaging from investor-state arbitration globally. South Africa, Bolivia, Ecuador, Venezuela, and Indonesia have started to cancel or phase out existing investment treaties. In Ecuador, a commission is investigating if the country’s remaining investment deals are beneficial and in line with its constitution. India is reportedly also reviewing its treaties.Misleading claim #7 – EU members have not been sued under existing treaties with the USReality: EU states have certainly been challenged by US investors – and the likelihood of corporate claims will increase substantially under TTIPThe business lobby often refers to the nine existing bilateral investment accords between the EU’s Eastern European member statesxi and the US to downplay the risks of investment arbitration in TTIP. BusinessEurope writes in its position paper: “Concerns have been raised that TTIP may lead to the launch of numerous claims by US companies against EU Member States. Nevertheless, US companies could have already done this under the current agreements between the US and EU Member States. This is not however the case.”This is selective blindness. Nine cases by US investors against EU countries are publicly known.xii Poland, for example, was ordered to pay US$ 16.3 million plus interest and fees to agribusiness giant Cargill because of quotas that the country imposed in preparation of its accession to the EU’s common agricultural policy. There’s also the example of US cosmetics billionaire Ronald Lauder who sued the Czech Republic first under the US-Czech bilateral investment treaty, and then again under the Netherlands-Czech one (the investment was structured via a Dutch vehicle). While the first case was dismissed, in the latter, the Czech Republic was ordered to pay US$ 354 million, the equivalent of the country’s entire health budget at the time.More importantly, according to figures published by Public Citizen, the existing investment pacts between nine EU member states and the US cover only a very small share – less than 8% – of US companies in the EU. Expanding investor-state arbitration to the remaining 92% of US businesses operating in the other 19 EU member states would dramatically increase the likelihood of disputes between US investors and EU governments.Misleading claim #8: Without investment arbitration the investor rights cannot be enforcedReality: Nothing would hinder EU companies from enforcing the investor rights in local courts – but pro-investor arbitrators are more likely to rule in their favour than independent judgesBusiness frequently stresses that investor-state arbitration is “often the only means to obtain redress when an alleged breach of an investment agreement occurs” because “in many countries investment agreements are not directly enforceable in local courts” (ICC). BusinessEurope gives this example: “If a domestic US law is adopted after TTIP enters into force and its content violates the agreement, such a law can still be found constitutional. In this case, the only possibility for a European investor to seek the protection agreed in TTIP is to bring the claim to international arbitration.”According to analysis by Jan Kleinheisterkamp from the London School of Economics the example is misleading because “international commitments by the US to European investors can very well be made applicable in US courts and even confer right of action to individuals.” So, it is entirely possible that EU investors could enforce the rights granted to them in TTIP by suing the US government in US courts, meaning ISDS would be unnecessary. This would only require that TTIP is implemented through legislation by Congress.But there’s an interesting honesty in BusinessEurope’s example. It describes a scenario in which a law is in line with a country’s constitution, but violates an international investment treaty. This could happen to Australia’s plain tobacco packaging law. In a legal challenge by Big Tobacco, Australia’s High Court upheld it as constitutional, arguing that the law did not constitute an expropriation. But the for-profit arbitrators deciding Philip Morris’ parallel investor claim could come to a different conclusion, based on the much broader concept of expropriation in international investment law.This shows what investment arbitration is really about: granting multinationals more generous property rights than any domestic firm, any community, any individual is granted by domestic law – and providing them with a parallel, exclusive legal system to claim these superior rights.Misleading claim #9: We need ISDS in TTIP to get it in a deal with ChinaReality: China wants the corporate rights as much as the EU – and granting them to Chinese investors is no less dangerous than granting them to US businessesBusiness lobbyists argue that investor-state dispute settlement (ISDS) in TTIP is vital as a precedent for other trade deals, like with China. According to BusinessEurope, “it would seem inconsistent, arbitrary, unjustified and unreliable from the part of the EU to view ISDS as a central element in an investment treaty with emerging and developing countries while insisting on not having such a mechanism in a treaty with OECD members. Such a precedent would weaken the ability of the EU to include ISDS in future [bilateral investment treaties and free trade agreements] with non-OECD countries, for instance with BRICS” (Brazil, Russia, India, China, South Africa).It is questionable that TTIP will make these countries more or less likely to enter into a treaty with the EU. China, for example, has already built up a dense network of more than 130 bilateral investment treaties, aggressively catering for the interests of its companies abroad. The world’s coming economic superpower wants an EU-China agreement no less than the EU.More importantly, such an agreement would be no less dangerous than TTIP, allowing Chinese corporations to sue EU governments – and vice versa – when they change their laws.Misleading claim #10: ISDS in TTIP is the ultimate chance to fix the problems of the pastReality: If you want to fix the problems, abandon investor-state arbitration, in TTIP and elsewhereBusiness disingenuously argues that enshrining investment arbitration in TTIP is the best way to reform ISDS. As lobbyists of the Unites States Council for International Business and the Danish and Swedish Industry Federations wrote in a joint letter to the Financial Times: “We have a unique possibility of making a modern ISDS agreement which can balance the legitimate needs of governments to regulate public priorities with the legitimate needs of businesses to have reasonable and predictable protection of investments.” Such an agreement, they argued, would “create a global gold standard” which other countries would look to as a model.This stated objective of re-balancing the international investment regime may be laudable. But the corporate (and European Commission’s) ‘reform’ agenda for ISDS shows no genuine attempt to pursue it. It offers sweeping rights but demands no obligations for investors. It fails to protect states’ right to regulate. And it fails to tackle the serious flaws of investor-state arbitration, surrendering the judgement over what policies are right or wrong and how much taxpayer money should be paid to compensate investors to for-profit arbitrators with a vested interest in this privatised legal system.xiiiFixing the problems of the past would mean rejecting the flawed investor-state arbitration system entirely, and establishing control mechanisms to halt abuse by transnational corporations.Will big business get its corporate super-constitution?In the months to come, the public debate about the corporate rights in EU trade deals is likely to heat up. We can expect quite a fray over the outcome of the Commission’s consultation which it will try to spin so that it supports its own ‘reform’ agenda. We might also see the conclusion of the negotiations over the EU-Canada trade agreement (CETA), a blueprint for TTIP and the first EU-wide deal including investor-state arbitration which the European Parliament will have to vote on.Those who would profit from the excessive investor privileges – investment lawyers, arbitrators and businesses – are likely to step up the fight for their privileges. The entry of corporate-funded think tanks into the debate is a first indication of that (“with the purpose of getting a better factual understanding” of and “demystifying” ISDS as Brussels-based ultra-liberal ECIPE puts it).But the corporate stakes in this debate go far beyond TTIP and CETA. The global investment regime is at a historic crossroads: in one direction, countries are questioning and even fleeing investor-state arbitration. In the other, a number of “megaregional-agreements” with “systemic implications” for global investment rule-making are under negotiation, with TTIP and CETA being two of them.xivIf the EU signs any of these mega-deals with investment arbitration in it, this will greatly re-legitimise the contested investor privileges globally. Also, it will subject vast shares of global investment stocks, which are to date not covered by investment treaties, to arbitrator power. This would move the world a significant step further towards a global corporate super-constitution, enforced by corporate ‘courts’.The challenges we are facing – from combating climate change to preventing another financial crisis – make that scenario unthinkable. Our societies won’t be able to confront them when they are stuck in a legal straight-jacket, with the constant threat of multi-billion corporate disputes against policy changes. Investment arbitration belongs nowhere else but in the dustbin of the trade debate.EndnotesiAgenda for BusinessEurope Seminar on Investment, Challenges Investors face abroad and the EU investment policy, 6 March 2014. On file with CEO.iiPresentation on Investor State Dispute Settlement – ISDS by Freya Baetens and Nicole Maréchal, 31 March 2014. On file with CEO.iiiEuropean Commission (2010): Flash report of a meeting with Adrian van den Hoven & Anka Schild of BusinessEurope, dated 25 November 2010. Obtained through access to documents requested under the information disclosure regulation. On file with CEO.ivInternal European Commission report of a meeting on EU investment policy and the EU-US investment dialogue, organised by AmCham EU on 8 July 2011. Obtained through access to documents requested under the information disclosure regulation. On file with CEO.vEuropean Commission (2012): Report of a meeting with BusinessEurope and ESF on investment, dated 7 November 2012. Obtained through access to documents requested under the information disclosure regulation. On file with CEO.viEuropean Commission (2013): Minutes of a lunch meeting with BCTT on TTIP, December. Obtained through access to documents requested under the information disclosure regulation. On file with CEO.viiSee endnote 5.viiiEuropean Commission (2013): TTIP Communication Meeting with representatives of Member States, 22 November 2013, dated 18 November 2013. Obtained through access to documents requested under the information disclosure regulation. On file with CEO. Courtesy of Greenpeace Austria.ixExamples include the opinion piece by arbitrator August Reinisch in Austrian daily Der Standard, dated 29 January 2014, and a letter to the editor of the Financial Times by investment lawyer Todd Weiler, dated 25 March 2014.xCorporate Europe Observatory/ Transnational Institute (2012): Profiting from Injustice. How law firms, arbitrators and financiers are fuelling an investment arbitration boom, pp. 15, 26.xiBulgaria, Croatia, Czech Republic, Estonia, Latvia, Lithuania, Poland, Romania and Slovakia.xiiSee UNCTAD’s database of treaty-based investor-state disputes: http://iiadbcases.unctad.org/.xiiiFor a critical analysis of the Commission’s ‘reform’ agenda, see, for example: IISD (2014): A Response to the European Commission’s December 2013 Document “Investment Provisions in the EU-Canada Free Trade Agreement (CETA)”; Seattle to Brussels Network (2014): Investment in CETA. A response to a lobby document by DG Trade; Corporate Europe Observatory (2014): Still not loving ISDS. 10 reasons to oppose investors’ super rights in EU trade deals.xivUNCTAD (2014): World Investment Report 2014. Investing in the SDGs: An action plan, p.x. 1. During a meeting with EU member states on 11 April 2014, the Commission responded to concerns raised by Spain and Germany, assuring them that thanks to the "such as" formulation in the 'closed' list for fair and equitable treatment clause, there was enough room for an expansive interpretation. A leaked report of this meeting, dated 11 April, is on file with CEO.
 

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A deregulation agenda is sweeping through the Commission & member states, particularly pushed by the UK.

The recent leak of many parts of TTIP, allowing us for the first time to read the negotiating position of the US, confirms our most serious concerns.

Dangerous attacks against regulations protecting public interest wouldn't be prevented by 'new' proposals.

Despite growing concerns among the European public, the new EU proposal on regulatory cooperation in TTIP does nothing to address the upcoming democratic threats.

Biodiversity collapse, the future of agriculture, politics versus science, EU States and the European Commission shifting blame on each other, industry's capture of the regulatory process through data secrecy, a Commissioner caught between Juncker, EU States, lobby groups, and his own services... The glyphosate saga, coming to an end this week with the European Commission's decision to extend its licence, has been an entry point into many broader problems. Overview.

The official EU assessment of glyphosate was based on unpublished studies owned by industry. Seven months later, the pesticide industry still fights disclosure and, so far, successfully. We obtained a copy of their arguments.

While CEO is not taking a position on the UK referendum, many of our publications are relevant to those who will have a vote, or those who are following the debate.

The current struggle in France over labour law reforms is not just between the Government and trade unions – a European battle is waged. The attacks on social rights stem in no small part from the web of EU-rules dubbed 'economic governance', invented to impose austerity policies on member states.

 
 
 
 
 
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The corporate lobby tour