Richard Bruton (Dublin North Central, Fine Gael) | Oireachtas source

The purpose of the negotiations on a transatlantic trade and investment partnership, TTIP, is to reduce barriers to trade and investment in order to generate jobs and growth. Based on European Commission estimates, an ambitious TTIP could generate 400,000 jobs. The gains for Ireland could be double this in proportionate terms, approximately 8,000 additional jobs, because of the significant flows of trade between Ireland and the US.

The scope of the European Commission’s mandate to negotiate with the United States on a TTIP includes investment protection and investor state dispute settlement, ISDS. The aim is to promote more two-way investment between the US and EU with high standards of protection for investors. This mandate has been supported by all member states, including Ireland. All of the EU’s free trade agreements seek to provide EU investors abroad with a level of protection similar to that which they would obtain in the EU. This is important for Irish investors abroad.

Ireland does not have bilateral investment treaties. In Ireland, guarantees to investors that they will not be treated in a discriminatory manner are provided by virtue of Article 43 of our Constitution. However, in other EU member states this protection is provided through bilateral investment treaties with third countries that include ISDS. Nine member states have such treaties with the US. TTIP would replace these.

International experience points to a wide disparity of bilateral investment agreement provisions. Some cases taken by investors under some of these have justifiably brought criticism of ISDS as a mechanism. The TTIP negotiations give the EU an opportunity to make improvements and create a new generation ISDS model that addresses the weaknesses identified in other agreements. Indeed, the existing mandate already provides important provisions protecting the right of government to regulate sectors. I support the European Commission in its continuing work to modify and improve the existing models and through the public consultation which it has conducted.

In the case of the recently concluded negotiations between the EU and Canada, for example, a breach of the fair and equitable treatment obligation could only arise when there is denial of justice in criminal, civil or administrative proceedings; a fundamental breach of due process, including a fundamental breach of transparency, in judicial and administrative proceedings; manifest arbitrariness; targeted discrimination on manifestly wrongful grounds, such as gender, race or religious belief; or abusive treatment of investors, such as coercion, duress and harassment. In addition, in the Canada agreement, there is provision for a list of arbitrators pre-agreed by the EU and Canada.

The European Commission has indicated it will engage in further consultations with member states, the European Parliament and other stakeholders and that, following these consultations, it will develop specific proposals for the TTIP negotiations. I very much welcome this approach and it is important to take time to have open and constructive discussion following the Commission’s report that will inform the next steps. At this stage, there are no negotiations taking place with the United States on this aspect of the proposed agreement. Ultimately, this element, as indeed other elements of the mandate, will only be included if the overall outcome is satisfactory to the EU.

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