The EU commission published its report (pdf) on the result of the public consultation on the controversial investor-state dispute settlement (ISDS) mechanism in the Transatlantic Trade and Investment Partnership (TTIP) agreement.
The commission identified four areas where further improvements should be explored: the protection of the right to regulate; the establishment and functioning of arbitral tribunals; the relationship between ISDS arbitration and domestic remedies; and the review of ISDS decisions for legal correctness through an appellate mechanism.
These are serious issues. The commission now has to withdraw the investment chapters of the draft agreements with Singapore and Canada. These agreements would lock-in failed reforms; multinationals world-wide would be able to use the ISDS mechanisms in these agreements to attack the EU.
I would like to add a more fundamental observation.
ISDS is fundamentally flawed. It does not respect the separation of powers, lacks institutional safeguards for independence and creates perverse incentives. If we would truly solve these issues, there wouldn't be ISDS arbitration left. In other words, intellectually ISDS has been dead for ever. But it has a hard time dying politically.
The solution may come from an unexpected angle. ISDS would undermine the EU court's exclusive jurisdiction over the definitive interpretation of European Union law. This is not compatible with the EU treaties. ISDS may die in the hands of the EU court. This would reduce the political costs. Hopefully the court will assist the union in moving forward in the right direction.
You could say we witness the entr'acte between our colonial past and our Union future.
