The 11th round in these negotiations took place in Miami from 19th - 23rd October, 2015. During this round negotiators discussed all three pillars of the proposed agreement namely market access for EU and US companies, regulatory cooperation and trade rules. There was substantial progress on market access for EU and US companies in all three areas including tariffs, services and public procurement. A second tariff offer was exchanged and both sides have now arrived at a level of proposal in terms of tariff line coverage which will assist and benefit further negotiations. There was also discussion in relation to public procurement and it is envisaged that there will be an exchange of market access proposals on public procurement by February 2016.
The negotiations also provided an opportunity to clarify some of the main principles of regulatory cooperation. These included the fact that any cooperation is possible only if the level of protection for consumers stays the same or improves and any form of regulatory cooperation will not change or affect the EU regulatory and democratic process.
The EU Commission’s mandate to negotiate with the U.S. also includes in its scope, investment protection. This is designed to ensure that Irish enterprises trading into 50 different US States will not face unfair discrimination in any particular State where the legal code may not fully transpose elements in the agreement. Equally US investors in the EU expect common investment protection standards and common redress mechanisms, and not 28 different set of standards and 28 different redress procedures.
The mandate makes it clear that the inclusion of investment protection 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 EU and the member states to adopt and enforce measures necessary to pursue legitimate public policy objectives in a non-discriminatory manner.
While no negotiation has commenced on such a mechanism the model which Europe has developed of Dispute Settlement provides:
- It can only be invoked where there is targeted discrimination on manifestly unfair ground, or a fundamental breach of fair process.
- Adjudicators must be approved by Governments and be from among persons qualified to be judges.
- Procedures must be transparent.
- There will be an independent appeal process.
- It must respect and protect the right of governments to regulate.
On the 8th July 2015 the European Parliament voted for a resolution supporting the EU-US Trade Agreement including a reformed investment protection mechanism.
On the 12th November 2015, the EU Commission published and formally presented to the US its proposal for a new and more transparent system for resolving disputes between investors and states - the Investment Court System. This proposal is the outcome of a lengthy public consultation process with the Member States, the European Parliament, stakeholders and the public. The Commission’s proposal aims at safeguarding Government’s right to regulate and creates a new system composed of a first instance tribunal and an appeal mechanism based on clearly defined rules, with qualified judges and transparent proceedings. The proposal also includes additional improvements on access to the new system by small and medium sized companies.
I welcome these improvements and the Commission’s efforts to follow up on the views expressed by Member States, the European Parliament and other stakeholders.
I can assure the Deputy that I will continue to support a trade agreement that is in the overall best interest of the public and the Irish economy.
At the Council of Trade Ministers scheduled to meet on 27th November in Brussels, I will have the opportunity to discuss progress on these negotiations with Commissioner Malmström and with EU Council colleagues.
