Henvendelse fra Greenpeace Norden m.fl. vedr. Transatlantic Trade and Investment Partnership”, investor-stat tvistbilæggelse (ISDS)

Ang. ”Transatlantic Trade and Investment Partnership”, investor-stat tvistbilæggelse
(ISDS)
Til Folketingets Europaudvalg fra Greenpeace Norden, Det Økologiske Råd, ATTAC-Danmark, NOAH, Afrika Kontakt og Corporate
Europe Observatory
Vi har bemærket, at udvalget på sit møde den 2. maj skal behandle de igangværende forhandlinger med
USA om en handels- og investeringsaftale, og vil i den forbindelse henlede opmærksomheden på den nu og
da stormfulde debat om investeringsbestemmelserne, særligt hvad angår det såkaldte investor-stat
tvistbilæggelsessystem (ISDS), der giver private virksomheder ret til at føre klagesager ved internationale
voldgiftspaneler, såfremt de mener, at afkastet fra deres investeringer formindskes af ny national
lovgivning eller regulering.
I den kommende tid må det forventes at være et af de afgørende emner i debatten om hele aftalen.
Kritikken er tiltagende fra mange sider, og Kommissionen besluttede i januar at indstille forhandlingerne på
dette punkt, og i stedet iværksætte en offentlig høring om et konkret forslag til udformning af et sådant
tvistbilæggelsessystem. Høringen er nu sat i værk og vil fortsætte indtil juni, hvorefter diskussionen må
forventes at blive taget op i Rådets arbejdsgruppe for handelspolitik. I den forbindelse vil også Danmark få
mulighed for at give sin holdning til kende.
Derfor vil vi benytte anledningen til at understrege vigtigheden af en kritisk dansk holdning, og til at knytte
et par bemærkninger til den igangværende høring og det forslag, Kommissionen har fremlagt i den
anledning.
1. Vigtigheden af en kritisk dansk holdning
I de forgangne år har sager ført gennem ISDS-ordninger under andre investeringsaftaler vis,t at de kan
underminere demokratiske beslutninger på centrale områder. Det gælder f.eks. miljøregulering (Ethyl
Corporation mod Canada, Vattenfall mod Tyskland), løn- og arbejdsforhold (Veolia mod Egypten),
sundhedspolitik (Philip Morris mod Australien), naturressourceforvaltning og miljø (Lone Pine mod Canada
samt Chevron mod Ecuador).
Listen over voldgiftssager af denne type, som træder ind og reelt eller potentielt tilsidesætter politiske
beslutninger, er jævnt stigende, ligesom også det samlede antal ISDS-sager på globalt plan. Der er altså tale
om et fænomen af stigende betydning, så politisk opmærksomhed omkring denne sag er afgørende, særligt
i den kommende tid.
Efter vores opfattelse er der slet og ret ikke behov for et ISDS mellem EU og USA. Retssystemerne på begge
sider er troværdige og gennemskuelige, og der er ikke noget belæg for at hævde, at f.eks. investorer fra
USA har behov for særrettigheder i f.t. dansk lovgivning og danske domstole. Derimod kan prisen for at
indføre en ISDS-ordning blive betragtelig.
I den senere tid har flere EU-medlemslande meldt meget kritiske holdninger ud, herunder Tyskland,
Frankrig og Holland. Derimod har den danske regering hidtil ikke haft nævneværdige forbehold, bortset fra,
at det tages for givet, at sager som ovenstående netop ikke kan gentages i sager mod Danmark, d.v.s. sager
som f.eks. underminerer regler indført for at sikre folkesundhed, miljø, forbrugerrettigheder eller lignende.
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Men det kan netop ikke tages for givet. Grundlæggende findes der kun én garanti mod ubehagelige
overraskelser, og det er slet ikke at indføre en ISDS-ordning i relationerne til USA.
2. Kommissionens forslag
Dette bekræftes vi i, når vi læser det nye forslag, som Kommissionens har fremsat i forbindelse med
høringsprocessen. Se i den forbindelse vedhæftede analyser.
Fra Kommissionens side hævdes det, at forslaget er formuleret på en måde så sager af samme karakter –
sager som er af særlig offentlig interesse som skitseret ovenfor – helt vil blive undgået. Men en nøje
læsning af teksten bekræfter ikke denne udlægning. F.eks. er der indsat en såkaldt ”forpligtende
fortolkning” som anneks til bestemmelsen om ”indirekte ekspropriation”, der er en bestemmelse, som gør
det muligt at anlægge sag, hvis en ny regel eller lov må føre til nedjustering af en virksomheds forventede
fremtidig indtjening. Men dels kan et panel vælge stort set at se bort fra en forpligtende fortolkning (ifølge
erfaringer fra NAFTA-aftalen), dels dækker fortolkningen kun en del af de sager om indirekte
ekspropriation, som vedrører sager af særligt offentlig interesse.
Derudover er bestemmelsen om ”rimelig og ligeværdig behandling” stadig formuleret på en måde, så der
vil være plads til de fleste af de kontroversielle sager, der verden over har skabt røre omkring ISDS, og som i
øvrigt har ført til, at mange lande er i færd med at afvikle investeringsaftaler med ISDS (f.eks. Sydafrika,
Indonesien, Ecuador).
Se i øvrigt vedhæftede analyser for en nøjere vurdering.
EU og Danmark vil løbe en betragtelig risiko ved at støtte et ISDS-system. Et almindeligt argument i
Udenrigsministeriet er, at man ikke hér forventer, at Danmark vil blive mål for sagsanlæg ved internationale
voldgiftspaneler. Men det er set ved en række tidligere lejligheder, at den slags forudsigelser er blevet gjort
til skamme. Som da Canada i 1994 tiltrådte NAFTA-aftalen med USA. Forudsigelsen var, at klagesager
overvejende ville ramme Mexico. Sådan er det ikke gået. De fleste sager foregår mellem Canada og USA, og
føres typisk af store, ressourcestærke virksomheder.
Vi vil derfor appellere til Europaudvalget om at kigge nøje på denne sag, og i sidste ende bidrage til, at en
fremtidig aftale med USA ikke indeholder ISDS.
Med venlig hilsen
Kenneth Haar, Corporate Europe Observatory
Jan Søndergaard, Greenpeace Norden
Mads Kjærgaard Lange, NOAH
Christian Ege Jørgensen, Det Økologiske Råd
Ida Grubb, ATTAC-Danmark
Mads Barbesgaard, Afrika Kontakt


Corporate Europe Observatory, Still not loving ISDS: 10 reasons to oppose investors’super-
rights in EU trade deals, 16 April 2014
http://corporateeurope.org/international-trade/2014/04/still-not-loving-isds-10-reasons-
oppose-investors-super-rights-eu-trade
Annex 2: Reality check of the Commission’s plans for ‘reform’ of “investor-state
dispute settlement”
When European Trade Commissioner Karel de Gucht launched the public consultation on the
investor rights in the proposed EU-US trade deal (TTIP), he said: “I fully agree with the many
critics who claim that investor-to-state-dispute settlement (ISDS) up until now has resulted in some
very worrying examples of litigation against the state.” The problem, according to de Gucht, lies in
some problematic features of existing investment agreements – which the Commission claims to
“re-do” to build a “legally water-tight system”.
This Annex looks into the Commission plans to “re-do” the investor-state dispute settlement process
(ISDS) through which EU and US companies could directly sue governments for alleged violations
of TTIP’s “substantive” investor rights (analysed in Annex 1). The Commission promises to
“improve” the mechanism “to ensure a transparent, accountable and well-functioning ISDS system
that reflects the public interest and policy objectives,” (section B in the Commission's consultation
document).
PR-speak:
what the Commission claims in its
consultation document
Reality check:
what the Commission really does
– and what it means in practice
The EU will introduce a “binding code
of conduct” for arbitrators in investor-
state dispute tribunals to ensure that
they are independent and act ethically.
If an arbitrator violates this code
“he/she will be removed from the
tribunal,” (from question 8 in the
consultation document).
This responds to concerns about conflicts of interest among the 3-
lawyer panels which decide investor-state claims. Unlike judges,
they have no flat salary but earn more the more claims they rule on
– a strong incentive to side with the only one side which can bring
claims (the investors). Existing rules and codes have sometimes led
to the disqualification of arbitrators (see here for a recent case & an
overview of existing rules). But they have not prevented a small
club of arbitrators from ruling on the majority of disputes, allowing
for more business in the future with investor-friendly
interpretations of the law. It is unlikely that the EU’s code of
conduct will ban this global elite club of ‘entrepreneurial
arbitrators’ (as Singapore’s attorney general called them). A 20
February leaked version of the Commission’s proposal from the
EU-Singapore talks does not even define what a “conflict of
interest” is.
The EU wants to set up a list (roster)
of qualified arbitrators, from which the
chairperson of an ISDS tribunal will be
picked if the parties cannot otherwise
agree on one. This would “ensure” the
“abilities and independence” of these
arbitrators whom the EU and the US
vetted and agreed to, (from question
8).
A similar roster already exists at the tribunal most often used for
investor-state claims, the International Centre for Settlement of
Investment Disputes (ICSID). According to this analysis by the
International Institute for Sustainable Development (IISD, p.22), it
“has not helped mitigate concerns of impartiality and independence
of arbitrators”. Like the ICSID roster, the one proposed by the EU
will only be a “backup” for the third arbitrator – not an “exclusive
roster for all the arbitrators fulfilling strict conditions of
experience, independence and impartiality”. So, concerns about
arbitrator bias will not really be addressed by the roster.
The EU’s aim is “to ensure
transparency and openness” in
In most investor-state disputes, little or no information is released
to the public. But opacity has become the achilles heel of the
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PR-speak:
what the Commission claims in its
consultation document
Reality check:
what the Commission really does
– and what it means in practice
investor-state disputes. It will
guarantee that hearings are open and
that “all documents” are available to
the public – “subject only to the
protection of confidential information
and business secrets,” (from question
6).
system’s legitimacy, which is why the veil of secrecy in ISDS
proceedings is gradually being lifted around the world. The US and
Canada in fact started this process over a decade ago. So, the EU is
swimming with the tide. Still, exceptions for the “protection of
confidential information and business secrets” could severely
hamper access to information. Under the UNCITRAL transparency
rules referred to by the EU, tribunals can also limit public access to
hearings for “logistical reasons” and withhold information that
“would jeopardize the integrity of the arbitral process”, giving
them wide discretion for non-transparency.
The EU will introduce “an early and
effective filtering mechanism” to
“quickly dismiss frivolous claims” as
well as unfounded ones. This avoids
lengthy and costly legal proceedings
and reduces the risk of abuse of the
system, (from questions 5 & 9).
The egregious investor challenges of sound policies by
corporations such as Philip Morris, Lone Pine, and Vattenfall, for
example, would not be dismissed under such a mechanism. They
are alleged real violations of the sweeping investor rights granted
in investment treaties (see annex 1). Claims are only considered
frivolous when there is a complete lack of legal merit. Under
existing rules, states can already ask tribunals to swiftly dismiss
frivolous claims, but not a single such case is known.
A tribunal deciding an investor-state
dispute “will not be able to order the
repeal of a measure”, but only
compensation for the investor, (from
question 5).
This can result in a serious raid on public budgets. The highest
known compensation to date, US$2.3 billion, was awarded against
Ecuador. In 2003, the Czech Republic had to compensate a media
corporation with US$ 354 million – the equivalent of the country’s
entire health budget. The mere threat of a multi-million-dollar
lawsuit may also be enough for governments to repeal the disputed
measure ‘voluntarily’ (see reason 2).
The EU “aims to establish an
appellate mechanism in TTIP so as to
allow for review of ISDS rulings”.
This would help ensure consistency of
interpretation and serve as a “check”
on the work of arbitrators, (from
question 12).
Unlike in proper court systems, decisions by investor-state
arbitration panels are non-reviewable (except for annulment
proceedings which address a narrow range of procedural errors and
are heard by another arbitration tribunal). An appeal mechanism
could contribute to more coherent decisions and rein in arbitrator
adventurism, but as things currently stand, this is a long way from
becoming reality: in the draft EU-Canada deal, for example, there
are only vague suggestions that a future joint committee may
consult on “whether, and if so, under what conditions, an appellate
mechanism could be created”. In TTIP, the EU states it wants to
directly create such a mechanism, but according to reports from
EU-US negotiation rounds on file with CEO, the US is “reluctant”.
The US has referred to the possibility of an appeal mechanism in
its treaties for many years – but this has led to nothing.
The EU’s approach “favours domestic
courts”. The Commission aims to
“provide incentives for investors to
pursue claims in domestic courts or to
seek amicable solutions – such as
mediation”. “Different instruments”
will be suggested “so as to not
discourage an investor from pursing
these avenues,” (from question 7).
The Commission does not discourage investors from mediation and
claims in local courts. But it does not give an incentive either. The
recourse to mediation is entirely voluntary (“the disputing parties
may at any time agree to have recourse to arbitration”). There is
neither a requirement for mediation nor a duty of foreign investors
to exhaust local remedies before bringing an ISDS claim. This is
what one would expect if the EU really “favoured” domestic courts
and amicable solutions. By not demanding the exhaustion of local
remedies, the EU grants foreign investors greater rights than
anyone else – and risks undermining the validity of its own legal
system.
All in all, the Commission does little to “re-do” the investor-state dispute settlement process.
Contrary to what it claims in its consultation notice, its approach is not “very different” from the
process foreseen in existing investment agreements. Nearly all of its proposals are already out there
in the world of international investment law and have not made any real difference (the trend
towards transparency, codes of conduct for arbitrators, the ICSID roster of arbitrators, protection
from frivolous claims, mediation...). Others might never materialise (as with the appellate
mechanism).
As was pointed out by a previous analysis of the Seattle to Brussels Network, the investor-state
arbitration system that the Commission wants to establish “is far inferior to the domestic legal
system of the EU and North America” from a public interest and a rule of law viewpoint. It will
“forever surrender […] the judgement over what policies are right or wrong” to a small club of for-
profit lawyers, who are unconstrained by fear of appeal and have a strong incentive to rule in favour
of the one side which can bring claims: the investors.
This bias is a systemic flaw that the Commission does not deal with – and that arguably cannot be
tackled without abandoning the privatised system of investor-state arbitration.


Corporate Europe Observatory, Still not loving ISDS: 10 reasons to oppose investors’
super-rights in EU trade deals, 16 April 2014
http://corporateeurope.org/international-trade/2014/04/still-not-loving-isds-10-reasons-
oppose-investors-super-rights-eu-trade
Annex 1: Reality check of the Commission’s plans for ‘reform’ of “substantive”
investor rights
When European Trade Commissioner Karel de Gucht launched the public consultation on the investor
rights in the proposed EU-US trade deal (TTIP), he said: “I fully agree with the many critics who
claim that investor-to-state-dispute settlement (ISDS) up until now has resulted in some very worrying
examples of litigation against the state.” The problem, according to de Gucht, lies in some problematic
features of existing investment agreements – which the Commission claims to “re-do” to build a
“legally water-tight system”.
This Annex looks into the Commission plans to re-do the so called “substantive” investor rights
(Annex 2 is on their proposals to reform the dispute settlement system). The Commission claims that
it will introduce “clear and innovative provisions” with regards to some of the traditionally vaguely
formulated investor rights so that they “cannot be interpreted by arbitral tribunals in a way that is
detrimental to the right to regulate”. Because, it argues, “in the end, the decisions of arbitral tribunals
are only as good as the provisions that they have to interpret and apply,” (question 5 in the
Commission's consultation document).
PR-speak:
what the Commission claims in its consultation
document
Reality check:
what the Commission really does
– and what it means in practice
The EU wants to make sure that states’right to
regulate is “confirmed as the basic underlying
principle” of the EU-US agreement so that
arbitrators “have to take this principle into
account” when assessing an investor-state dispute.
The Commission quotes a section of the preamble
of the EU-Canada agreement (seen as a template
for TTIP) that indeed recognises the parties’ right
“to take measures to achieve legitimate public
policy objectives”, (from question 5 in the
consultation document).
It is impossible to check the claim with just an excerpt of
the preamble. According to a Canadian summary of it, the
‘right to regulate’ is specified (“in a manner consistent
with the Agreement”). According to this analysis from the
International Institute for Sustainable Development
(IISD, p.2), this detail puts the investor rights above the
right to regulate – the exact opposite of what the
Commission claims. During a public debate in March, a
high-ranking Commission official admitted that the
formulation on the right to regulate will “not make any
difference” in investor-state disputes.
The EU sees no problem with the “intentionally
broad” definition of “investment” in investment
treaties covering “a wide range of assets, such as
land, buildings, machinery, equipment, intellectual
property rights, contracts, licenses, shares, bonds,
and various financial instruments,” (from question
1).
The definition of “investment” is key because it
determines what is covered by the chapter. A broad – and
open-ended – definition such as the Commission’s not
only covers actual enterprises in the host state, but a vast
universe ranging from holiday homes to sovereign debt,
exposing states to unpredictable legal risks.
The EU wants to avoid abuse by improving the
definition of “investor” to eliminate so called
“shell” or “mailbox” companies from the scope of
the agreement: “to qualify as a legitimate investor
of a Party, a juridical person must have substantial
business activities in the territory of that Party,”
(from question 1).
The definition of “investor” is key because it determines
who is covered by the agreement. The EU seems to have
understood that a broad definition can lead to abuse of the
treaty via “treaty shopping”, allowing, for example, a US
firm to sue the US via a Dutch mailbox company. But
unfortunately, it fails to define the term “substantial
business activity”. Thousands of investors will be
covered by the chapter.
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PR-speak:
what the Commission claims in its consultation
document
Reality check:
what the Commission really does
– and what it means in practice
National treatment: Investors “should not be
discriminated against” except in “rare cases” and
“specific sectors” where discrimination “may need
to be envisaged”. The aim is to ensure “a level
playing field between foreign investors and local
investors,” (from question 2).
The EU’s investor rights do not create a “level playing
field”, but VIP treatment for foreign investors: they get
greater private property rights than everyone else and
access to a parallel legal system that is exclusively
available to them – not local businesses or ordinary
people.
Most-favoured nation treatment (MFN): A
provision to ensure “a level playing field” between
different foreign investors. EU member states and
the US would have to treat investors from the other
party “no less favourably” than investors from any
other state. But the Commission “seeks to clarify”
that investors will not be able to “import” more
favourable rights from other agreements signed by
the US or EU member states, (from question 2).
In reality the provision has indeed been interpreted like a
“magic wand” that allows investors to ‘import’ rights
from other treaties signed by the host state (as a lawyer
defending states against investors has recenty put it).
Under the EU’s current MFN wording, this cherry-
picking would be possible, self-cancelling all of the
supposed ‘clarifications’ of investor rights and
multiplying the risks of successful investor-state attacks
against public policy. In meetings with NGOs, the
Commission admitted that it only recently became aware
of the problem.
Fair and equitable treatment (FET): Investors
shall be treated in a “fair and equitable” manner.
The EU wants to clarify the standard so that it only
covers “breaches of a limited set of basic rights”
(denial of justice; disregard of fundamental
principles of due process; manifest arbitrariness;
targeted discrimination; abusive treatment), (from
question 3).
The standard has become the catch-all guarantee most
relied on by investors when suing states. In 74% of the
cases won by US investors, tribunals found an FET
violation. And investors frame their claims precisely
around the same “basic rights” listed by the Commission.
Philip Morris, for example, argues that Australia’s anti-
tobacco law was arbitrary because the claimed health
benefits are “contradicted by facts” and other policies to
reduce smoking without a negative effect on Philip
Morris were available. Canadian mining firm Lone Pine
also argues that the revocation of its “right to mine for oil
and gas” in Quebec was “arbitrary” and without “due
process”. It seems the EU's ‘clarifications’ do not offer
much protection.
Protecting investors’ legitimate expectations:
The Commission explicitly states that tribunals
which apply the fair and equitable treatment
standard may take into account whether a state
made a “specific representation” to an investor that
“created a legitimate expectation” upon which the
investor relied when making or maintaining an
investment, (from question 3).
The protection of an investor’s “legitimate expectation”
has been interpreted by tribunals as a right to a stable
regulatory environment – binding governments to not
change regulation. In the Quebec case where strong
community resistance halted a fracking project, Lone
Pine, for example, argues that the “revocation” of its gas
exploration permits violated its “legitimate expectation of
a stable business and legal environment”. The EU does
not define the type of “specific representation” by a state
which could create such legitimate expectations. Would a
prime minister’s twinkling of an eye be enough?
Expropriations (direct and indirect ones) of
investors are permitted only if they are for a public
purpose, non-discriminatory, follow due process
and are compensated. The EU wants to clarify the
provision to “avoid claims against legitimate
public policy measures”. It wants to make clear
that “non-discriminatory measures taken for
legitimate public purposes, such as to protect
health or the environment, cannot be considered
equivalent to an expropriation, unless they are
From a certain, investor-friendly view, almost any law or
regulatory measure can be considered an ‘indirect
expropriation’ when it has the effect of lowering profits.
Several tribunals have interpreted legitimate public
policies that way and have ordered states to pay
compensation. Would the EU’s ‘carve-out’ for public
welfare measures prevent this? Not necessarily. The state
would have to prove that a measure “was designed and
applied to protect public welfare objectives” (and as in
the Philip Morris case, investors would challenge this). In
PR-speak:
what the Commission claims in its consultation
document
Reality check:
what the Commission really does
– and what it means in practice
manifestly excessive,” (from question 4). “rare circumstances” it could then still be considered an
expropriation. Academics (p. 28) have argued that amidst
“significant debate and uncertainty” about the meaning of
such clauses, there is “the possibility that an arbitral
tribunal might interpret [...] an EU-US investment chapter
expansively [i.e. in a pro-investor way] despite the
addition [...] of cautionary footnotes and annexed
clarifications”. Also, the current text on MFN (see above)
would allow investors to refer to expropriation clauses in
other treaties without public policy exceptions, rendering
the EU’s carve-out pretty meaningless.
When greater clarity is needed to protect the right
to regulate, the EU and the US will be able to
“adopt interpretations of the investment
protection provisions which will be binding on
arbitral tribunals.” This will allow them to monitor
how the law that they created is interpreted and
influence the interpretation, (from questions 5 &
11).
Following a wave of investor claims under the North
American Free Trade Agreement NAFTA, the US,
Canada and Mexico have already issued such joint
clarifications of vaguely formulated investor rights. In
practice, however, arbitrators have proven that they are
willing to ignore these ‘binding’ interpretations (see here
for examples relating to fair and equitable treatment).
The EU will ensure that “all the necessary
safeguards and exceptions are in place” to protect
the right to regulate – for example, with regards to
environmental and consumer protection, health and
the stabilisation of financial markets. EU
agreements also contain “general exceptions
applying in situations of crisis”. This suggests that
certain types of regulatory measures might be
exempt from the obligations in the treaty, (from
question 5).
A closer look at the relevant provisions shows that this
provides false comfort. Measures to ensure financial
stability, for example, “shall not be more burdensome
than necessary to achieve their aim”. “Safeguard
measures that are strictly necessary” may be taken “in
exceptional circumstances of serious difficulties for the
operation of monetary and exchange rate policy”. For
policies to tackle “serious balance-of-payments or
external financial difficulties”, the EU even states that
they should “avoid unnecessary damage to the
commercial, economic and financial interests of the other
Party”. It will be up to a tribunal of unaccountable for-
profit lawyers to determine which policy was “strictly
necessary” and which caused “unnecessary” costs for the
other party. An easy hurdle to pass for investors.
Umbrella clause: The EU also wants to protect
investors when the host country avoids
“contractual obligations” towards them, (from
question 3). While there is no exemplary treaty text
in the consultation on this issue, there is a similar
clause in the leaked EU-Canada investment chapter
from November 2013 (Article X on page 14).
This would bring all obligations a state assumed with
regards to an investment under the TTIP ‘umbrella’ (like
a contract with one investor), multiplying the risk of
costly lawsuits. In a 2011 resolution, the European
Parliament had asked the Commission for a study on the
impacts of the inclusion of an umbrella-clause in future
European investment agreements. There is no such study
yet.
‘Survival’ (or better: ‘zombie’) clause: An issue
that is not mentioned in the Commission’s
document, but that deserves some attention.
The EU discretely forgot to mention that the EU-US trade
deal would allow investors to sue states for decades –
even if they cancelled the treaty in the future. The leaked
EU-Canada agreement (article X.18) says that, for
investments already made, the treaty “shall continue to be
effective for a further period of 20 years” from the
moment it is terminated. The corporate super rights
would live on like a zombie – even if the agreement was
dead.
All in all, the Commission’s plans to “re-do” the “substantive” investor rights do not do the job of
building a “legally water-tight system” that “cannot be interpreted by arbitral tribunals in a way that is
detrimental to the right to regulate”. On the contrary, many of the proposed provisions seem to have
the exact opposite effect (which was also the conclusion of analyses of previously leaked negotiation
texts from the Commission by the International Institute for Sustainable Development (IISD) and the
Seattle to Brussels Network).
Under the EU’s reforms, the investor rights will remain what a lawyer defending states in investor-
state lawsuits recently called: “weapons of legal destruction”.