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Transatlantic Trade and Investment Partnership

Dáil Éireann Debate, Tuesday - 9 June 2015

Tuesday, 9 June 2015

Questions (410)

Robert Dowds

Question:

410. Deputy Robert Dowds asked the Minister for Jobs, Enterprise and Innovation his views on the current suing of the German Government by a Swedish energy company, using an investment state dispute settlement which forms part of their bi-lateral trade agreement, for billions of euro on foot of the German Government's decision to phase out the use of nuclear energy, and whether the proposed Transatlantic Trade and Investment Partnership agreement between the European Union and the United States of America could lead to the State being sued in a similar manner for changing its regulatory environment or its public policy, and whether such a threat of being sued would act as a deterrent to any future Government from making regulations which were in the public interest. [21513/15]

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Written answers

The EU Commission’s mandate to negotiate with the United States on the Transatlantic Trade and Investment Partnership (TTIP) includes in the scope (paragraphs 22 and 23) investment protection and investor-state dispute settlement (ISDS). The stated aim of negotiations on investment is to negotiate investment liberalisation and protection provisions on the basis of the highest levels of liberalisation and highest standards of protection that both sides have negotiated to date.

The mandate makes it clear that the inclusion of investment protection and ISDS will depend on EU interests being met and on the final balance of the Agreement. Importantly, the mandate states that the objectives of any investment protection provisions would be without prejudice to the right of the EU and the member states to adopt and enforce measures necessary to pursue legitimate public policy objectives such as social, environmental, security, stability of the financial system, public health and safety in a non-discriminatory manner.

This means that the type of investment arbitration system under TTIP would be a vast improvement on investment protection in existing Bilateral Investment Treaties, some of which date back to the 1950s.

In the case of the recently concluded negotiations between the EU and Canada, for example, a breach of the fair and equitable treatment obligation could only arise when there is:

- denial of justice in criminal, civil or administrative proceedings;

- a fundamental breach of due process, including a fundamental breach of transparency, in judicial and administrative proceedings;

- manifest arbitrariness;

- targeted discrimination on manifestly wrongful grounds, such as gender, race or religious belief; or

- abusive treatment of investors, such as coercion, duress and harassment.

In addition, in the Canada Agreement, there is provision for a list of arbitrators pre-agreed by the EU and Canada.

The Commission’s Concept Paper, “Investment in TTIP and beyond – the path for reform ”, published on 6 May, which builds on the important progress that has been achieved in the investment agreement with Canada, sets out four areas for further improvement: Governments’ right to regulate, establishment and functioning of tribunals, relationship between national judicial systems and an ISDS system, and an appellate mechanism.

These improvements are aimed at fixing the problems with dispute settlement in order to create a new modern system of investment arbitration. Ireland already provides the highest protection for investors by virtue of Article 43 of our Constitution, so the policy intention of the Commission in these negotiations is not new to Ireland.

The case referred to by the Deputy does not involve Ireland and is a matter for the parties involved.

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