{"id":3361,"date":"2015-05-21T23:44:03","date_gmt":"2015-05-22T04:44:03","guid":{"rendered":"http:\/\/itn.mattrock.ca\/?p=3361"},"modified":"2024-08-09T18:26:11","modified_gmt":"2024-08-09T16:26:11","slug":"news-in-brief-19","status":"publish","type":"post","link":"https:\/\/www.iisd.org\/itn\/2015\/05\/21\/news-in-brief-19\/","title":{"rendered":"News in Brief"},"content":{"rendered":"

European Commission addresses TTIP concerns at European Parliament meeting<\/strong><\/h2>\n

At a March 18, 2015 meeting at the European Parliament\u2019s International Trade Committee, EU<\/span> Trade Commissioner Cecilia Malmstr\u00f6m presented four \u201cpreliminary ideas\u201d<\/a> to address public concerns about investment in the Transatlantic Trade and Investment Partnership (TTIP) in negotiation between the European Union and the United States.<\/p>\n

To prevent conflicts of interest resulting from the dual rule (arbitrator\u2013lawyer) in investor\u2013state arbitration, the Commissioner emphasized the role of arbitrator rosters. She also supported the idea of a permanent investment court\u2014but aiming at a multilateral one, as a parallel medium-term objective.<\/p>\n

The Commissioner also suggested including in TTIP an appeal body with permanent members to review decisions and ensure their consistency. In addition, to prevent giving investors \u201ca second chance to overrule the decisions of national courts,\u201d she proposed provisions to clarify the relationship between domestic systems and investor\u2013state arbitration.<\/p>\n

Malmstr\u00f6m also discussed clauses to address the concern \u201cthat investment arbitration in TTIP will be a barrier to Europe\u2019s noble tradition of high quality regulation.\u201d Such concern is increasingly widespread in Europe. On April 18, thousands in several German cities protested against the TTIP<\/a> fearing an erosion food, labour and environmental standards.<\/p>\n

In the European Parliament, the leading European People\u2019s Party favours investor\u2013state arbitration in the TTIP, but six committees have drafted opinions<\/a> against it. While not binding, these opinions will be taken into account in the International Trade Committee\u2019s report, to be put to vote on May 28 and presented to the Parliament in June 2015.<\/p>\n

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TPP Investment Chapter: Re-edition of U.S. BIT<\/span>, with ISDS<\/span><\/span> carve-outs<\/strong><\/h2>\n

The TPP has been under negotiation for five years by Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States, and Vietnam. Since the draft texts are not shared with the public, interested observers must rely on periodic leaks.<\/p>\n

Most of the latest leaked chapter is copy-pasted from the U.S. model bilateral investment treaty (BIT), with slight differences. Investment authorizations and contracts, normally within the scope of U.S. BITs, appear in square brackets, indicating that their inclusion is not yet confirmed. Performance requirements are broadly prohibited, but an exception covering \u201cmeasures to protect legitimate public welfare objectives\u201d was added. And states go as far as recognizing that voluntary corporate social responsibility should be encouraged.<\/p>\n

Several negotiating countries carved out measures and sectors from the scope of investor\u2013state dispute settlement (ISDS). Notably, a footnote expressly indicates that ISDS will not be available for use by Australian investors or against Australia. Yet the footnote is followed by an intriguing note: \u201cdeletion of footnote is subject to certain conditions.\u201d It is not clear what Australia would trade for its anti-ISDS stance.<\/p>\n

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India releases Model BIT for comments; United States pushes for negotiations<\/strong>\u00a0<\/strong><\/h2>\n

The Indian government published a draft of its model bilateral investment treaty<\/a> (BIT) for public comment on March 24, 2015. By April 11, the deadline for submission, 185 comments were posted on the government\u2019s online forum<\/a>. The new text is set to replace the country\u2019s 1993 model Bilateral Investment Promotion and Protection Agreement (BIPA) and results from an inter-ministerial review process started in mid-2012.<\/p>\n

India\u2019s new model includes obligations on foreign investors and investments and on their home state aimed at ensuring that investment contributes to inclusive growth and sustainable development. Investors and investments that breach obligations regarding corruption, disclosures and taxation do not benefit from the treaty benefits\u2014and are subject to counterclaims by the host state. While retaining investor\u2013state dispute settlement provisions, the model requires a foreign investor to exhaust administrative and judicial remedies before initiating arbitration against the host state.<\/p>\n

Increasingly concerned with investor\u2013state arbitration, India is reported to be considering<\/a> renegotiating or exiting its BITs (currently, 83 signed, 72 in force). Although the country does not have an investment treaty with the United States, sporadic negotiations are reported to be occurring since 2008. The completion of India\u2019s new model has motivated a new round of talks<\/a>, as indicated in March 2015 by U.S. Assistant Secretary of State Nisha Desai Biswal.<\/p>\n

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UNCITRAL<\/span> Transparency Convention opened for signature in Mauritius<\/strong><\/h2>\n

The United Nations (UN) Convention on Transparency in Treaty-based Investor\u2013State Arbitration was opened for signature in an official ceremony on March 17, 2015 in Mauritius.<\/p>\n

Now also known as the Mauritius Convention on Transparency<\/a>, the treaty results from the work of the UN Commission on International Trade Law (UNCITRAL) on transparency in investment arbitration dating back from 2010.<\/p>\n

Another product of this work, the UNCITRAL Rules on Transparency<\/a> in Treaty-based Investor\u2013State Arbitration were adopted in 2013 and have been effective since April 1, 2014. They require publication of basic information about the arbitration, disclosure of key documents (including the tribunal\u2019s decisions) and open hearings. The rules automatically apply to any UNCITRAL arbitration proceeding under a treaty concluded after April 1, 2014.<\/p>\n

By signing the Transparency Convention, a state commits to applying the transparency standards of the UNCITRAL Rules on Transparency to any investor\u2013state arbitration proceeding under treaties concluded before<\/em> April 1, 2014, even if those treaties do not refer to UNCITRAL Arbitration Rules.<\/p>\n

The first signatories of the Mauritius Convention were Canada, Finland, France, Germany, Mauritius, Sweden, the United Kingdom and the United States. It will enter into force six months after the deposit of the third instrument of ratification.<\/p>\n

A January 20, 2015 negotiating draft of the Investment Chapter<\/a> of the Trans-Pacific Partnership Agreement (TPP) was leaked on March 25, 2015.<\/p>\n