The Proposed TTIP Tribunal and the Court of Justice: What Limits to Investor-State Dispute Settlement under EU Constitutional Law?

In its controversial Opinion 2/13, the European Court of Justice has rejected the accession of the EU to the European Convention on Human Rights. The constitutional hurdles the CJEU has erected in this opinion are not only relevant in the area of human rights, but also require us to think hard about the EU constitutionality of the suggested TTIP Tribunal, or any other mechanism of investor-state dispute settlement under future EU international investment agreements. To reduce this uncertainty it may be advisable to request the CJEU through an advisory opinion.

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Regulatory Cooperation under TTIP: Democracy on this Side of the Bridge

A week ago, the EU Commission announced that investor-state dispute settlement (ISDS) will no longer be part of its proposals on TTIP. This was the Commission’s response to public contestation and fears that such a mechanism could place unjustified constraints on democratic institutions and on the capacity of states and of the EU to preserve their regulatory autonomy. The change announced by the Commission may be a step in the right direction. But there are other reasons of concern in the current Commission proposals, which have been overshadowed by the discussion on ISDS. Once the agreement is in place, how will decisions be made on the differences between EU and US regulation that could be usefully overcome? On which technical requirements are unnecessarily duplicated? On which standards should remain in place because they contend with health safety in a way that would not be compatible with EU standards? On which areas are too distinct to justify attempts at mutual recognition? Such issues will be decided, in a first instance, via regulatory cooperation between the EU and the US. Thus far there has been little debate on this chapter of TTIP. Yet, regulatory cooperation may remove decision-making further away from parliamentary oversight and impact on existing institutional balances in the EU.

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Thinking out legal remedies under TTIP

Last week, the EU commission presented its reform proposal for the investment chapter in the currently negotiated EU-US free trade agreement TTIP. The proposal has rightly sparked an overall positive response, as its many improvements set new benchmarks for international investment law. However, a more fundamental question, brought up again in the aftermath of the Commission’s proposal, still remains open: Why should only foreign investors, and not domestic enterprises, consumers and workers, have the right to claim TTIP provisions intended to protect their respective rights and interests? Isn’t an exclusive right to bring individual claims an unjustified advantage for foreign investors over other individuals and groups that are equally affected by TTIP?

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