CYIL 2015

TTIP AND ISDS: NOT IRRECONCILABLE ACRONYMS Nevertheless, the wide majority of civil society, that is, more than three thousand individual citizens, business organizations, trade unions, consumer organizations, law firms etc. , expressed their opinions. 44 Analyses of the high number of submissions took more than a half year before a 140-page detailed report on consultation’s results was published on 13 January 2015. 45 On the basis of the collected replies, the European Commission divided their statements into three categories. The first category rejects the TTIP in general. The second group of replies particularly opposes investment protection and ISDS. The final category contains specific observations on the posed questions. Mostly, according to these replies the European Commission concluded that “views are divided with regard to almost every question” and identified “four areas where further improvements should be explored”: the protection of the right to regulate; the establishment and functioning of arbitral tribunals; the relationship between domestic judicial systems and ISDS; and, last but not least, the review of ISDS decision through an appellate mechanism. 46 The author acknowledges the rationale behind the four issues. The highlighted topics are long-lasting notorious subjects of investment lawyers’ debates; yet, still without clear and fitting answers (if they exist at all). In the words of Commissioner Malmström, “the consultation clearly shows that there is a huge scepticism against the ISDS instrument.” 47 Therefore, the publication was only a first step. The European Commission intended to continue, after publication of the report, in consultations with the Member States, the European Parliament and the interested stakeholders, such as NGOs, businesses associations or academia, particularly on the above identified areas. This wider debate on investment protection and ISDS in theTTIP should, in the view of the European Commission, aim to develop proposals taking into account the presented scepticism and articulated concerns. During her May visit in the European Parliament, Commissioner Malmström set out the Commission’s preliminary ideas on further improvements. Malmström wants to reinforce the right of governments to regulate in the public interest in an operational provision. Further, the European Commission proposes a selection of arbitrators from a pre-established roster and a widening of required qualifications of the arbitrators. In order to ensure consistency of interpretation and review of decisions, the proposal should include an appellate mechanism for ISDS modelled largely on the WTO Appellate Body. Finally, the European Commission believes it should address the question of the relationship between domestic legal systems and ISDS to exclude a possibility that investors will have a second chance to overrule the decision of a national court. In order to prevent parallel claims, the European 44 Supra note 43. 45 European Commission, Report presented today: Consultation on investment protection in EU-US trade talks (13 January 2015), see http://trade.ec.europa.eu/doclib/press/index.cfm?id=1234. 46 Supra note 43. 47 Ibid.

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