from the clever-cosmetic-changes dept
Last September, Techdirt reported on the EU’s plan to replace the highly-controversial corporate sovereignty provisions in TAFTA/TTIP — the “investor-state dispute settlement” (ISDS) chapter — with something it called the “Investor Court System” (ICS). As we reported then, even if ICS addressed all the problems of ISDS — spoiler alert: it certainly doesn’t — there was a huge backdoor in the form of CETA, the trade deal between the EU and Canada. If CETA includes old-style corporate sovereignty provisions, US companies with subsidiaries in Canada will be able to use CETA to by-pass TAFTA/TTIP’s new ICS system completely, and sue EU nations using ISDS with all its widely-recognized faults. In fact, Bernd Lange, the MEP with responsibility for making recommendations on how the European Parliament (EP) should vote on international trade matters, said at the time that he would not support CETA if it included ISDS.
The arrival of a new government in Canada while CETA is still undergoing “legal scrubbing” — checking and tweaking the exact wording — has given the European Commission the opportunity to re-negotiate the corporate sovereignty chapter in CETA, even though it rather sneakily claimed it couldn’t do that. But it turns out it could, and did, in a move that is likely to have important repercussions:
The European Commission and the Canadian Government have agreed to include a new approach on investment protection and investment dispute settlement in the EU-Canada Comprehensive Economic and Trade Agreement (CETA).
The negotiations on a free trade deal between the European Union and Canada were concluded in 2014 with a reformed investment dispute settlement system, notably with full transparency of proceedings and clear and unambiguous investment protection standards.
Following the legal revision of the text, the agreement now reached goes even further. All the main elements of the EU’s new approach on investment, as outlined in the EU’s TTIP proposal of November 2015 and contained in the recently concluded EU-Vietnam free trade agreement, have been included in the finalised CETA text.
This represents a clear break from the old Investor to State Dispute Settlement (ISDS) approach and demonstrates the shared determination of the EU and Canada to replace the current ISDS system with a new dispute settlement mechanism and move towards establishing a permanent multilateral investment court. This revised CETA text is also a clear signal of the EU?s intent to include this new proposal on investment in its negotiations with all partners.
By persuading Canada to accept the ICS instead of a marginally-updated ISDS, the European Commission can claim to have addressed Lange’s concerns. Indeed, his party, the Socialists and Democrats (S&D), rushed out a press release that tries to claim credit for the move:
The Socialists and Democrats in the European Parliament welcome the announcement made today by the European Commission and the Canadian government on the changes in the trade agreement between the EU and Canada (CETA) so as to include the S&D demands.
What matters here is not who did what, but that the S&D are now unlikely to block CETA because of the corporate sovereignty provision. With broad S&D support, CETA stands a better chance of being ratified by the European Parliament sometime later this year.
However, even with ICS in CETA, the European Commission still faces an uphill battle convincing the US that it too should agree to replace the old-style corporate sovereignty in TAFTA/TTIP. Last week, during the 12th round of the TTIP negotiations, the EU formally proposed its ICS alternative (pdf), but we don’t yet know what the official US response will be. Unofficial comments suggest that it is lukewarm about the idea. Since some powerful US business lobbies seem unhappy with the ICS approach, Canada’s decision to accept it in CETA may paradoxically stiffen US resistance to the idea in TAFTA/TTIP. And without ICS, Lange’s S&D could decide they have to vote against the deal if and when it comes up for ratification in the European Parliament.