ISDS Novelty Overlooked Or Novelty Outdated?

by Emma Spiteri-Gonzi*

Investor-State Dispute Settlement (ISDS) is a procedural mechanism provided for in international investment agreements such as bilateral investment treaties (BITs) or multi-lateral investment treaties (MITs). ISDS allows an investor from one country to institute proceedings against the country where their investments where made- the Host State. So, has this novelty been overlooked or has it simply been outdated?

Disputes between investors and foreign countries have required adjudication for as long as there has been cross-border investment.  Under international law the taking of foreign property was protected under the minimum standard of treatment of aliens premised on the idea that a State is bound to respect and protect the property of nationals of other States. The problem however, lay in the individual being able to channel that right. Prior to the evolution of the modern rules-based system, foreign investors investing abroad relied heavily on the mercy of their own State. The injured citizen’s remedy lay in seeking diplomatic protection through his or her own government. If so inclined, the State would espouse the claim of its citizens against the offending Host State.

One will remember cases like Barcelona Traction, Light and Power Company Ltd (Belgium v Spain), in which the International Court of Justice (ICJ) detailed the shortcomings of diplomatic espousal remarking how the State is a ‘sole judge’ in deciding whether ‘its protection will be granted’ to a national, to what ‘extent it is granted’, and ‘when it will cease’.

The precarious procedural rights of the injured investor relying on Inter-State adjudication is further detailed in Elettronica Sicula S.P.A. (United States of America v Italy) where the court rejected the applicant’s claim for reparation and Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo) where notwithstanding a claim was successful in terms of securing the protection of Mr. Diallo’s human rights, the judgment fell short of protecting his investments.

One of the first investment treaties to provide for ISDS was the Belgium-Indonesia BIT of 1970. The clause was simple:

any dispute concerning an investment between an investor of one Contracting Party and the other Contracting Party shall, if possible, be settled amicably… Where the dispute is referred to international arbitration, parties in the dispute may agree to refer the dispute either to…’.

This clause paved the way for the multitude of ISDS clauses found in international investment agreements today.

Opponents of ISDS have pointed out that investment agreements concluded by developed countries no longer require ISDS and that this mechanism has become obsolete. The truth is that relying on the national courts of the Host State to enforce obligations in an investment agreement is not always easy, no matter how developed.

An investor in a Host State court is automatically an alien, advancing a claim in a foreign court automatically places the investor at a disadvantage of itself.

Lack of access to the court is another consideration. International investors have found that there would be no suitable forum, in certain Host States, to bring a claim unless an ISDS provision in the investment agreement had made adequate provision.

Host States are not always forthcoming with ratifying the rules entered into in an international investment agreement into their national laws. When this occurs, even if investors have access to local courts, they may not be able to rely on the obligations the government has entered into in the international investment agreement.

Today, opponents of ISDS choose to remember the procedure for providing corporations and investors with the locus standi to ‘drag’ Sovereign governments to dispute settlement.  More often it’s remarked that investment treaties are being concluded between countries with equally developed legal systems and it follows that any dispute would take place in the courts of either developed State, therefore the process has become outdated.

The past struggles of private parties to challenge the actions of governments seem all but forgotten. But perhaps we should not be so quick to forget, and not look a gift horse in the mouth.

* Emma Spiteri Gonzi, Legal Counsel- Nemea Bank Plc.

A BIT-By-BIT Understanding of the EU’s Present & Future Investment Agreements

by Emma Spiteri-Gonzi*

Anyone with an interest in European investment and trade will undoubtedly have heard of the EU-US TTIP or, to use its full name, the Transatlantic Trade and Investment Partnership. Naturally, this makes sense as the US is the EU’s top trading partner and a trade agreement of this significance would unquestionably make headlines. The reality, however, is slightly different and the TTIP has made headlines for all the wrong reasons. One of these is the controversy generated from its investment chapter, more specifically its investor state dispute settlement provisions (ISDS). The aim of this piece is to shift focus away from this arduous debate and instead take a glance at the whole of the EU’s trade policy agenda.

Amidst the controversy of the TTIP negotiations the EU has already concluded a free trade agreement (FTA) with South Korea. The final text of the EU-Singapore FTA was also agreed upon, along with five Economic Partnership Agreements (EPAs) with Cote d’Ivoire, Cameroon, the Southern African Development Community, Ghana and the East African Community. These new generation EU investment agreements form part of an ambitious trade agenda by way of the EU’s Common Commercial Policy (CCP), Articles 206 and 207 of the Treaty on the Functioning of the European Union (TFEU), which call for the ‘harmonious development of world trade’ and ‘the progressive abolition of restrictions on foreign direct investment’. Prior to the CCP EU Member States entered into their own investment agreements with third countries. The first bilateral investment treaty was the German-Pakistan BIT, a bit ironic given the heated opposition to TTIP from that member state.  After the German-Pakistan BIT individual member states concluded around 1200 bilateral investment treaties. The Commission is now tasked with finding a consensus approach to trade agreements amongst member States.

For a moment, let’s ignore the hyperbolic headlines (e.g. ‘Trojan TTIP’) and review instead what these new generation agreements will mean for us. The Commission has said that if the EU was to complete all its current free trade talks tomorrow, it could add 2.2% to the EU’s GDP or €275 billion. This is equivalent to adding a country as big as Austria or Denmark to the EU economy. The agreements will cover goods, services, intellectual property and the procurement by government agencies of goods and services for a public function. Furthermore, these agreements will set out provisions on regulatory coordination and cooperation to facilitate trade in the covered areas, as well as establish rules to govern what qualifies as an investment and who qualifies for protection as an investor. They will contain commitments on customs duty reduction, access to services markets, and also consolidate and regulate technical barriers to trade (TBT) such as technical regulations relating to labeling or marking requirements.

The EU is also undergoing treaty negotiations with its second and third largest trading partners, China and the ASEAN [1] countries respectively. Chinese EU trade negotiations have reached their seventh round, with the eighth round scheduled to take place in Brussels at the end of November 2015. Also underway are negotiations for a FTA with JAPAN. Negotiations with Japan, the EU’s second biggest trading partner in Asia, are in their twelfth round, though as yet no agreement on an investment chapter has been reached. A Deep and Comprehensive Free Trade Agreement (DCFTA) with Morocco has entered the fourth round of negotiations. And, with recent or coming regime change in India, Burma and Argentina those countries are destined to move up the ladder on the EU’s trade negotiation agenda.

With Canada, the EU’s twelfth most important trading partner, the EU has concluded a Comprehensive Economic Trade Agreement (CETA). This agreement’s investment chapter is the investment chapter on which the TTIP’s investment chapter was modeled. Yet, the CETA managed to reach final form without attracting the scrutiny of TTIP critics. The EU has also entered into a DCFTA with Moldova and Georgia, which began to apply provisionally from September 2014. The EU-Ukraine DCFTA was completed and provisional application will begin once it has been ratified.

With the proliferation of present and pipeline new generation EU investment agreements, do critics use time wisely merely focusing on the TTIP and tarnishing ISDS? We stand to miss the forest for the trees. Europeans ought not lose focus on the end goal, the creation of favourable investment climate and the economic rewards that come with it.

[1] The EU is currently negotiating with three Association of Southeast Asian Nations (ASEAN) countries Malaysia, Vietnam and Thailand.

* Emma Spiteri Gonzi, Legal Counsel- Nemea Bank Plc.