EU Observer | 1 March 2016
The seven sins of the EU investment court
By Pia Eberhardt
European trade commissioner Cecilia Malmstroem and Canadian minister for trade Chrystia Freeland have confirmed that the EU-Canada CETA agreement will include far-reaching investor privileges.
The investor-state dispute settlement (ISDS) clause in the deal is set to be based on EU proposals for an Investment Court System (ICS) that were announced last autumn following unprecedented public outcry. However, ICS is no new departure. Indeed, it is the same special rights for foreign investors come back from the dead.
Plans for ISDS were among the most contentious parts of the proposed TTIP deal between the EU and US. Debate has been focused on the rights that corporations will acquire to challenge democratic decisions when they consider them a threat to their profits.
This power for companies to haul governments before special tribunals for lost profits has, for instance, led to Philip Morris suing Uruguay over tobacco control measures and, more recently, TransCanada’s announcement that it will sue the US for $15 billion over President Barack Obama’s rejection of the Keystone XL oil pipeline.
Last autumn, Malmstroem made another attempt to quell the controversy with a new proposal to replace ISDS - the Investment Court System. However, a close look at the new system reveals that it is just as dangerous.
Following Monday’s news that investor privileges are to be a key part of CETA, here are seven key reasons why “super-rights” for foreign investors remain a bad deal for citizens – whatever their name:
1. The commission’s investment protection proposal still offers corporations the right to sue governments over measures to protect the environment, health and workers. If TTIP and CETA go ahead as planned, tens of thousands of Canada and US-based companies operating in the EU would be newly empowered to sue.
2. Billions in taxpayer money could be paid to compensate corporations, including for missed future profits that they hypothetically could have earned. New laws in the public interest would not be shielded from such crippling compensation orders.
3. The proposed investor rights are a sure-fire way to bully decision-makers, with the potential to curtail desirable policy making to tackle issues such as climate change.
There is already evidence that proposed environmental and health protections have been abandoned, delayed or otherwise adapted to corporate wishes because of the threat of litigation. Canada and New Zealand, for instance, have delayed anti-smoking policies because of looming legal cases from Big Tobacco.
4. The commission’s proposed multilateral investment court – essentially a world supreme court exclusively available to corporations – risks perpetuating an already gravely unjust system where large companies or wealthy individuals get powerful rights while the rest of us just get responsibilities.
5. Since only investors can sue, there is an incentive for the arbitrators (relabelled “judges” in the commission proposal) to side with them as this will bring more legal cases, fees and prestige in the future. According to the Deutscher Richterbund, Germany’s largest association of judges and public prosecutors, “neither the proposed procedure for the appointment of judges of the ICS nor their position meet the international requirements for the independence of courts”.
6. There are doubts that the proposed investment protection system is compatible with EU law as it sidelines European courts and is fundamentally discriminatory, granting special rights to foreign investors only.
7. Rather than putting an end to ISDS, the ICS threatens to lock member states into it forever. It will be practically impossible for them to remove investor privileges once those are enshrined in larger trade deals such as CETA and TTIP.
At a time when all attention should be focused on crucial issues facing politicians such as impending climate catastrophe and future economic crises, there is simply no space for agreements that would make many solutions to these problems illegal.
Despite all the talk of reform from commissioner Malmstroem, the threat to democratic decision-making is as alive and dangerous as ever. Defending the public interest and democracy as we know it means dangerous investor privileges - whatever acronym guise they come in - must be scrapped