CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ WHAT CANWE EXPECT FROM POSTǧBREXIT UNITED KINGDOM’S INVESTMENT POLICY? the EU investment policy. 26 The UK has been an active player in investment debates within the EU arguing for “greater international investment protection”. 27 In the meantime, the UK Parliament has been regularly informed of trade and investment policy through updates at EU scrutiny committees. During the period when the EU has had the competence over foreign direct investment, the most significant moment was probably the public consultation on investment protection and ISDS in the Transatlantic Trade and Investment Partnership Agreement (TTIP). In response to public concerns regarding ISDS system being included in the TTIP, the European Commission initiated a public consultation which took place between 27 March and 13 July 2014. 149,000 responses were received with 52,000 coming from the UK, which means over a third (52,000) of all replies (34.81 %). 28 Based on the submissions originated from the UK, we can assume that the domestic and stakeholders’ views are mostly critical. During the TTIP negotiations, the UK Government faced intense scrutiny from the Parliament. In one of its replies to the parliamentarians, the Government argued that investment provisions “provide investors with confidence when investing, ensuring that they have a right to redress and compensation if a host country has acted unfairly.” 29 It also considered “[i]nvestment protection provisions, including ISDS, […] an important element of the agreement.” 30 In defence of ISDS, the UK Government stated that: “[i]nvestment protection treaties are designed to make investment across borders safer and to ensure that governments treat investors fairly, lawfully and without discrimination. International obligations as set out in treaties between states are not generally enforceable in domestic courts. It is therefore appropriate that there is an independent system to assess claims that the treaty obligations have been breached. The Government believes that the fairest way to ensure that these treaty claims are independently assessed is through independent international arbitration.” 31 Other elements of the current EU approach were as equally strongly defended by the UK Government: “The introduction of a ‘loser pays’ principle, as included in the ISDS consultation, will reduce or remove these costs, as the unsuccessful claimant will compensate the government for their legal and arbitration fees.” 32 In another document, this position was reaffirmed: “The Government wants to see the ‘loser pays’ principle incorporated in any ISDS provisions contained within the agreement,” adding further element: “We also want to see the inclusion of a mechanism to reject frivolous claims quickly.” 33 The document continues with a reference to the EU-Canada Comprehensive Economic and Trade Agreement (CETA) 26 POULSEN, Lauge N., BONNITCHA, Jonathan, YACKEE, Jason W. ‘Analytical Framework for Assessing Costs and Benefits of Investment Protection Treaties’ [2013] 1. 27 Department for Business Innovation and Skills, Trade and Investment for Growth (UK Government White Paper, Cm 8015, 2011) 10. 28 European Commission, Preliminary report (statistical overview) (2014), 2-3. 29 HM Government, Government Response to the House of European Union Committee’s Fourteenth Lords Report: The Transatlantic Trade and Investment Partnership (2014) 7. 30 HM Government, Government Response to the House of Commons Business, Innovation and Skills Committee’s Eleventh Report of Session 2014-15: Transatlantic Trade and Investment Partnership (2015) para 41. 31 Ibid, para 38. 32 HM Government, TTIP: Vince Cable’s detailed response to ‘TTIP: no public benefits, but major costs’ (2014). 33 HM Government, Government Response to the House of Commons Business, Innovation and Skills Committee’s Eleventh Report of Session 2014-15: Transatlantic Trade and Investment Partnership (2015) para 22.

357