Press Release

Same old, same old for ‘new’ Investment Court System to rule on EU-US trade deal

November 12, 2015

The European Commission’s proposed Investment Court System for the EU-US trade deal is a largely cosmetic rebranding, civil society groups have said, giving special privileges to foreign investors and undermining national and EU legal systems. The ‘new’ proposal keeps these major flaws of Investor-State Dispute Settlement (ISDS) intact – while the court’s establishment and running would be paid for by European taxpayers, according to sustainable transport group Transport & Environment (T&E) and environmental law organisation ClientEarth.

The Investment Court System is intended to be included in all future trade agreements, including the Transatlantic Trade and Investment Partnership (TTIP). Instead of requiring investors to exhaust national legal avenues first, as citizens must, the Commission proposes to let them choose between either a national court or the Investment Court System; investors will logically choose the route likely to lead to the highest financial settlement. 

Cécile Toubeau, manager better trade and regulation at T&E, which sits on the Commission’s TTIP advisory group, said: “This Commission is supposedly committed to doing less regulation while upholding the rule of law, yet it keeps pushing for a new institution that creates corporate welfare for foreign investors and undermines Europe’s national courts. Citizens should not have to unfairly shoulder private risks taken by foreign investors who get to bypass domestic courts.”

EU citizens will have to pay for half of the €3 million start-up costs via the EU budget, while the cost of the court’s future proceedings and settlements will be paid by both European and American taxpayers. [1]   

The Commission is refusing to check with the European Court of Justice (ECJ) whether the new court institution, which will be able to interpret and assess EU law, is legal under EU law. While the new proposal alludes to a number of the legal concerns, it fails to address them in a meaningful way. This proposal also raises doubts about the future legality of trade agreements that provide for settlements under the old system, such as the EU’s recent trade deals with Canada and Singapore. [2]

Laurens Ankersmit, a lawyer for ClientEarth, said: “We know that ECJ case history is stacked against the Commission’s proposal. The ECJ has found a number of agreements ― including the accession to the European Convention of Human Rights and the agreement setting up a European Patent Court ― incompatible with the EU Treaties for reasons that are equally valid for the Commission’s proposal and ISDS.”

Notes to editors:

[1] The average cost of proceedings so far has been $8 million and, in some cases, costs have gone as high as $30 million.… (page 7) 
See Annex 1:
For detailed analysis of the Commission’s Investment Court System proposal by: Transport & Environment (T&E) European Consumer Organisation (BEUC); Transatlantic Consumer Dialogue (TACD); European Public Health Alliance (EPHA); European Heart Network (EHN); European Association for the Study of the Liver (EASL); and their legal experts (as part of the TTIP advisory group’s work).…

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