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The European Parliament Votes to Remove Investor-State Arbitration from the Trans-Atlantic Trade and Investment Partnership (TTIP) Negotiations

By Markus Burgstaller, Jonathan T. Stoel & Michael Jacobson on July 15, 2015
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On 8 July 2015, the European Parliament voted favorably on a non-binding resolution that approves of the negotiation of the Transatlantic Trade and Investment Partnership (TTIP), an international trade and investment agreement between the United States and the European Union. Importantly, however, the resolution also supports the removal of investor-state arbitration from the TTIP. The European Parliament instead recommends to the European Commission negotiators framing the TTIP with their U.S. counterparts that investor-state arbitration be replaced with “a new system for resolving disputes between investors and states which is subject to democratic principles and scrutiny”.

The resolution also calls for transparency in these proceedings, which should be resolved by “publicly appointed, independent professional judges in public hearings”. Consistent with a “Concept Paper” previously issued by the European Commission, the European Parliament urges that the TTIP include an appellate mechanism to ensure the consistency of judicial decisions as well as the jurisdiction of courts of the EU and of EU Member States. Finally, the European Parliament calls for limited investment protection provisions covering national treatment, most-favored nation, fair and equitable treatment, and expropriation.

The European Parliament’s resolution marks the culmination of increasingly skeptical views of the EU institutions towards investor-State arbitration. European Trade Commissioner Cecilia Malmström had previously announced the EU’s new objectives for investment protection in TTIP. On 5 May 2015, these objectives were published in a “Concept Paper” that outlined certain EU priorities in negotiating the TTIP investment chapter. Commissioner Malmström’s objectives were then also endorsed by a resolution of the European Parliament’s Committee on International Trade (INTA Committee) on 28 May 2015. The 8 July 2015 resolution of the European Parliament appears to be based on the European Commission’s Concept Paper to some degree, though it would seem that the European Parliament has even more significant concerns over investor-State dispute settlement (ISDS) than the Commission.

The European Parliament’s vote is yet another challenge to efforts across the Atlantic to negotiate the TTIP, notwithstanding the recent affirmative vote in the U.S. Congress to grant “Trade Promotion Authority” to President Obama. Business groups were particularly disappointed by the European Parliament’s vote, urging both the European Commission and the Office of the United States Trade Representative (USTR) to negotiate a TTIP that will “include an effective ISDS system that protects investors from unjust discrimination and unfair treatment.” The tenth TTIP negotiating round is currently underway, and so next steps on this contentious issue will be a matter of “wait and see.”

 

Special thanks to Warren Bianchi for his assistance with this blog post.

Photo of Jonathan T. Stoel Jonathan T. Stoel

Partner, Washington, D.C.

Multinational companies facing international trade and other complex international disputes look for specific experience in the courtroom and in arbitration. So do investors enmeshed in investment disputes. Jonathan Stoel has the experience to support clients in these challenging circumstances.

A…

Partner, Washington, D.C.

Multinational companies facing international trade and other complex international disputes look for specific experience in the courtroom and in arbitration. So do investors enmeshed in investment disputes. Jonathan Stoel has the experience to support clients in these challenging circumstances.

A partner in the firm’s International Trade and Investment and International Arbitration practices, Jonathan handles complex matters involving treaty-based claims, international investment protections, public international law, and international trade and customs issues. He also provides guidance on the U.S. Mexico-Canada Agreement (USMCA).

Jonathan helps clients in many industries, including the steel, pharmaceutical, energy, agriculture, and consumer products sectors. He represents claimant investors in investment arbitrations before the International Centre for Settlement of Investment Disputes (ICSID) and its additional facility, as well as in ad hoc arbitration under the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL). Jonathan also develops strategies for clients to avoid protracted and costly investment dispute settlement proceedings.

Jonathan regularly represents companies in international trade administrative proceedings before the U.S. International Trade Commission (ITC) and the U.S. Department of Commerce (DOC). He also litigates appeals before the U.S. Court of Appeals for the Federal Circuit and the U.S. Court of International Trade. Jonathan has resolved international trade disputes through arbitration before panels constituted pursuant to the World Trade Organization (WTO), the North American Free Trade Agreement (NAFTA), and the London Court of International Arbitration (LCIA). Jonathan provides customs law guidance to clients on classification, valuation, tariff preference, and other issues. He has first-chaired client defenses in customs regulatory audits, prior disclosures, and penalty and forfeiture proceedings.

Jonathan also serves as the chair of the Board of Trustees of the Thurgood Marshall Academy, a Southeast Washington charter school, and as counsel to the Court-appointed Receiver for Options Public Charter School.

Read more about Jonathan T. StoelEmail
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  • Posted in:
    Government and Public Policy
  • Blog:
    Focus on Regulation
  • Organization:
    Hogan Lovells
  • Article: View Original Source

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