Written answers

Tuesday, 31 March 2015

Department of Jobs, Enterprise and Innovation

Transatlantic Trade and Investment Partnership

Photo of Paul MurphyPaul Murphy (Dublin South West, Socialist Party)
Link to this: Individually | In context | Oireachtas source

304. To ask the Minister for Jobs, Enterprise and Innovation if he will report on the discussions held regarding the Transatlantic Trade and Investment Partnership with the European Commission and at the recent Council of Ministers meeting held in Riga in Latvia; and his position on the model of investor state dispute settlement for the partnership. [13147/15]

Photo of Richard BrutonRichard Bruton (Dublin North Central, Fine Gael)
Link to this: Individually | In context | Oireachtas source

The Latvian Presidency of the European Union hosted an informal meeting of EU Trade ministers in Riga on 24/25 March, 2015. During this informal meeting, the EU Commissioner for Trade, Cecilia Malmström, briefed Ministers on her recent meeting with US Trade Representative Mike Froman.

The Commissioner also set out some of her preliminary ideas for reforming investor state dispute settlement, following the analysis of the views submitted during the public consultation. These are:

1. Right to regulate: The Commission has floated two ideas to address this: a full possible article in the text of any Agreement that would make clear that governments are free to pursue public policy objectives and they can choose the level of protection that they deem appropriate, and a clause providing that says that investment protection rules offer no guarantee for investors that the legal regime under which they have invested will stay the same.

2. Improving the way the tribunals work: To address concerns that the system creates conflicts of interest because arbitrators are also lawyers and might expect to get business from the investors in future, the Commission's idea is for governments, long before any actual cases are launched, to nominate a limited list of arbitrators who would decide on all TTIP investment cases. To get onto the list, the arbitrators would have to be sufficiently qualified. For example, they would have to be eligible to be judges in their home systems. There have been some calls for creating a permanent investment court, with permanent judges, and the Commissioner supports the idea, but considers this a more long-term project that would be best undertaken as a multilateral project, not just a TTIP project.

3. Appeals mechanism: The idea is to include an appeals body, with permanent members, within TTIP. The Commissioner believes that this would ensure consistency of interpretation and review of decisions. The Commission will, in parallel, also be proposing an appeals mechanism to other negotiating partners, with the aim of achieving a multilateral appeal mechanism.

4. Relationship between domestic legal systems and ISDS: In order to address the perception that ISDS gives investors a second chance to overrule the decisions of national courts, the Commissioner is considering two possible options: Require claimants to choose between national courts and ISDS from the outset, so they would not be allowed to use ISDS once a case had begun in national courts; or, to avoid the risk that this might encourage claimants to avoid national courts altogether, provide that they would have to abandon any proceedings they have started in national courts if they launch an ISDS case. Recourse to ISDS would not be possible if the claimant decided to exhaust local remedies.

The ideas set out by the Commissioner seem worthy of further exploration. The Commission has not yet made any formal proposals, but I am open to considering proposals that can achieve a reasonable and workable arbitration system that addresses the shortcomings already identified in historic models of ISDS and that have given rise to concerns.

Comments

No comments

Log in or join to post a public comment.