The TTIP, ISDS and the shift towards transparency in investor-state arbitration

The negotiations between the EU and the US over the Transatlantic Trade and Investment Partnership (TTIP) have generated a lot of discussion about investor-state dispute settlement (ISDS). This discussion provided the inspiration for this thesis, with the TTIP in the background, setting the scene. In this thesis I study the nature of ISDS and the principle of transparency within investor-state arbitration. I aim to determine whether the use of ISDS is restricted to international arbitration and whether ISDS can be considered to constitute a system or regime. Furthermore, I consider whether the introduction of the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration (2014, the UNCITRAL Transparency Rules) changes investor-state arbitration in relation to transparency. To achieve this, I examine ISDS provisions in several different international investment agreements (IIAs) and evaluate the ways in which transparency is incorporated into investment law. Moreover, I compare the provisions on transparency and confidentiality in institutional arbitration rules with the UNCITRAL Transparency Rules. I have formed several conclusions, including that the ISDS provisions may contain methods other than international arbitration and that ISDS does not constitute a system. Furthermore, the UNCITRAL Transparency Rules do change – theoretically, at least – investor-state arbitration to become more transparent. Whether the UNCITRAL Transparency Rules will make investor-state arbitration fully transparent depends on the actions of the contracting state parties when negotiating new IIAs and whether they choose to incorporate the UNCITRAL Transparency Rules in the IIAs already concluded.

The Transatlantic Trade and Investment Partnership (TTIP)

The United States of America and the European Union are currently negotiating a Transatlantic Trade and Investment Partnership (TTIP). It is one of the most ambitious free trade and investment initiatives, going much further than eliminating tariffs. TTIP mainly aims at reducing “non-tariff barriers”. While tariffs on goods have been imposed with an eye to foreign competition, most of the non-tariff barriers are the laws and regulations that are the result of social struggles for the protection of consumers and workers. It is therefore certain that TTIP will impact workers. This volume provides a preliminary assessment of the likely consequences for labor by: - providing an overall introduction to the TTIP negotiations; -assessing the reliability of the studies claiming employment gains; - highlighting specific problematic proposals such as the investor-to-state dispute settlement mechanism; - presenting the position of organized labor from both sides of the Atlantic. / Among the contributors are Stefan Beck (Kassel), Lance Compa (Ithaca, New York), Pia Eberhardt (Brussels) and Werner Raza (Vienna).

The impacts of TTIP on Brazil

The objective of this project is to analyze the effects for Brazil of the conclusion of TTIP. This is approached under different hypotheses: considering the effects on Brazil of a TTIP with the reduction of only tariff barriers between US and EU; introducing a partial reduction of non-tariff barriers; and, at last, with a complete reduction of these barriers. To finalize, an audacious alternative is assumed: a hypothetical participation of Brazil in the TTIP under a partial reduction of agricultural tariffs by the US and EU markets, and under a full liberalization of their agricultural markets. The methodology used to estimate non-tariff barriers was presented in the Ecorys Project (2009) developed by Berden e Francois to the European Commission.

Das Ende der bilateralen Handelsabkommen?: Was Mega-Abkommen wie das Freihandelsabkommen EU-USA (TTIP) für die Schweiz bedeuten

Zwei Jahrzehnte lang hat sich im internationalen Handelsrecht wenig bewegt. Durch die Paralyse der WTO genossen bilaterale Handelsabkommen viel Aufmerksamkeit und waren während 20 Jahren das primäre Instrument für die Weiterentwicklung und Vertiefung der Handelsbeziehungen. Vor gut einem Jahr hat sich die Dynamik geändert: Mit mehreren sogenannten Mega-Abkommen, plurilateralen Initiativen und dem ersten neuen Entscheid der WTO seit vielen Jahren, verlieren bilaterale Handelsabkommen an Attraktivität und Nutzen. Diese neue Dynamik bringt deutlich zum Vorschein, dass der handelspolitische Alleingang steigende Kosten mit sich bringt und die fortschreitende Globalisierung einen Imperativ zur Vernetzung und Kooperation schafft. Ob die Schweiz bereit ist, der neuen Herausforderung proaktiv zu begegnen, wird sich weisen.

Democratic Legitimation of Trade Policy Tomorrow: TTIP, Democracy and Market in the Swiss Constitution

Free Trade Agreements (FTAs) are increasingly more concerned with regulatory convergence, rather than trade liberalisation through elimination of tariffs. This appears to result more often in so-called dynamic trade agreements, which still evolve after adoption. Further economic integration in democracies, however, depends on the support of the constituency. This article takes a closer look at the democratic legitimation of global economic integration in a case study on Switzerland. It finds that the current principles and institutions of democracy in Switzerland are unlikely to fully accommodate the new regulatory challenges of dynamic FTAs.

TTIP and Climate Change – How real are Race to the Bottom Concerns?

This paper examines concerns about the impact that TTIP could have on existing and future climate policies and laws from the inclusion of provisions on investment protection including investor-to-State dispute settlement (ISDS), the reduction of non-tariff barriers and the introduction of rules for trade in energy and raw materials. It argues that from an environmental perspective, ISDS should not necessarily be seen as a regime that goes against the defence of the environment or prevention of climate change. Although it might be used to challenge policies of an EU home State that increase levels of environmental protection, it can also be used to contest changes in an EU home State’s environmental policies that would reduce the protection of the environment, if foreign investment is affected. To a large extent, this also holds true for other areas of TTIP negotiations. While the achievement of a balance between rules that promote trade and those that maintain policy space for governments to respond to environmental concerns has to be closely monitored, benefits for climate could be seized from harmonisation of carbon laws at the level of the strictest regulations of two parties, provisions that promote trade in low carbon technologies and renewable energy and bilateral cooperation on climate change.

Spillover effects of TTIP on BRICS economies : a dynamic GVC-based CGE model

This paper uses a GVC (Global Value Chain)-based CGE model to assess the impact of TTIP between the U.S. and the EU on their main trading partners who are mainly engaged at the low end in the division system of global value chains, such as BRICS countries. The simulation results indicate that in general the TTIP would positively impact global trade and economies due to the reduction of both tariff and non-tariff barriers. With great increases in the US–EU bilateral trade, significant economic gains for the U.S. and the EU can be expected. For most BRICS countries, the aggregate exports and GDP suffer small negative impacts from the TTIP, except Brazil, but the inter-country trade within BRICS economies increases due to the substitution effect between the US–EU trade and the imports from BRICS countries when the TTIP commences.

Prospects for regulatory convergence under TTIP. Bruegel Policy Contribution 2013/15, October 2013

An ambitious, comprehensive and high-standard trade and investment agreement between the European Union and the United States is feasible, but a key concern is whether the transatlantic trade partners will succeed in creating a meaningful agreement within the tight timeline of the Transatlantic Trade and Investment Partnership (TTIP) negotiations. The target of a ratified pact before a new European Commission takes office in November 2014 is an objective that is likely to conflict with the level of ambition on the substance. Regulatory congruence would require the unilateral and unconditional recognition by the TTIP partners of each other’s standards, procedures and conformity assessment tests. The way forward is to create a ‘living’ (or progressive commitment) agreement on regulatory cooperation with a horizontal template for coherence and conformity assessment and a detailed monitoring mechanism, with implementation starting immediately for a few selected sectors. Regulatory harmonisation under TTIP may not lead to emerging markets automatically upgrading to the higher TTIP standards. Domestic priorities and the high demand from a rising price-sensitive group of consumers will likely result in a dual regulatory regime in emerging markets in the medium-term.

Towards Effective Regulatory Cooperation under TTIP: A Comparative Overview of the EU and US Legislative and Regulatory Systems. CEPS Special Report No. 88, 15 May 2014

The aim of this report is to inform the EU-US Transatlantic Trade and Investment negotiations on enhanced regulatory coherence and cooperation, by providing negotiators, stakeholders and the public with a comparative overview of the US and EU legislative and regulatory processes in their current form, highlighting differences and similarities.

The Impact of TTIP: The underlying economic model and comparisons. CEPS Special Report No. 93/13 October 2014. [TTIP Series No. 1]

What are the economic and other impacts of the Transatlantic Trade and Investment Partnership? At the request of the European Parliament, CEPS has provided an appraisal of the TTIP Impact Assessment carried out by the European Commission, with special elaboration of the underlying economic model. The methodology applied by the Centre for Economic Policy Research (CEPR) for this economic modelling is analysed in depth, together with the assumptions used to make TTIP amenable to an economic appraisal. The research paper also compares the IA on TTIP with selected previous empirical economic assessments of EU trade agreements and with a set of alternative studies on TTIP itself. In reading our findings, two central caveats should be kept in mind that affect any analysis of the CGE model included in the European Commission’s Impact Assessment. First, TTIP is a rather unusual bilateral trade agreement; and second, TTIP is so wide-ranging that an alternative approach, such as the so-called ‘partial’ (equilibrium) approach – already a second-best solution – would be totally inappropriate to the case under examination.