From the TUC

#TTIP news: 10 reasons why the latest #ISDS compromise is a bad deal

02 Jul 2015, by in International

Yesterday the Socialists & Democrats Group in the European Parliament voted 56-34 to endorse a compromise amendment to the Parliament’s draft resolution on the Transatlantic Trade and Investment Partnership (TTIP, the EU-US trade deal), covering the controversial issue of Investor-State Dispute Settlement (ISDS).

The compromise was opposed by UK Labour MEPs, and has dismayed Green and Left MEPs too. It’s not clear how many socialist MEPs will actually vote against the compromise if it is put to the Parliamentary vote next Wednesday (Labour MEPs are likely to vote against, and trade unions in other countries are likely to be pressing the French, German, Italian and Spanish socialist MEPs too.) Right-wing anti-Europeans like UKIP will probably also oppose it.

But with the backing of the Conservatives in the ECR group, centre-right MEPs from the European People’s Party and Liberal Democrats in the ALDE group, the compromise is likely to be adopted. We’ll be urging Labour, Green and UKIP MEPs to stand firm, and calling on Conservatives and the single Liberal Democrat to represent the people who elected them rather than the big businesses who will be rubbing their hands with greed. 

The proponents of the compromise in the S&D group are arguing that it rules out the sort of full-blooded ISDS that led to over 140,000 critical submissions to the European Commission consultation, over 2.25 million signatures on a European Citizens’ Initiative, and opposition from trade unions, consumer groups and environmentalists. But it leaves intact the idea that foreign investors should get a privileged route to massive compensation payments when democratically-elected governments do something that could be argued in court affects the profits of a multinational enterprise.

The compromise amendment reads:

“to ensure that foreign investors are treated in a non-discriminatory fashion while benefitting from no greater rights than domestic investors, and to replace the ISDS-system with a new system for resolving disputes between investors and states which is subject to democratic principles and scrutiny where potential cases are treated in a transparent manner by publicly appointed, independent professional judges in public hearings and which includes an appellate mechanism, where consistency of judicial decisions is ensured, the jurisdiction of courts of the EU and of the Member States is respected and where private interests cannot undermine public policy objectives;”

Here are ten reasons why the compromise amendment is a bad deal:

1. Although this proposal addresses some of the drawbacks of ISDS, it really isn’t an alternative to ISDS, but just a softer version, or ISDS-lite. It still provides for individual foreign investors to challenge state decisions directly, with all the problems that entails such as ‘regulatory chill’ (when Philip Morris sued the Australian Government over plain paper packaging – a case still not concluded – the New Zealand Government shelved its plain paper packaging proposals.)

2. Leaving any form of privileged investor protection in TTIP would mean that the threat to a publicly-run National Health Service remains. Corporate lawyers will still be licking their lips over the possibility of suing any government brave enough to return privatised parts of the NHS to public hands. And that applies to education, water, railways and any other privatised or part-privatised public services.

3. The compromise would provide foreign investors with compensation arrangements not available to other potential litigants (eg workers, consumers, environmentalists). It would be like restricting access to the European Court of Justice, which also oversees trans-national conflicts, to just one class of litigants, foreign investors.

4. The imbalance of access to justice which is so offensive in ISDS would remain – workers would still get what they have in the EU-Canada deal (called CETA): the possibility of a strongly worded, expert report. As ever, if that’s good enough for workers why should investors get more?

5. The costs involved in taking cases under this arrangement will mean it is only really available to big companies – so small firms will be excluded, which has led to opposition from Austrian and German small firms’ organisations.

6. The case for privileging investors like this still has not been made. How much extra investment is likely to arise? How much has been lost as a result of not having ISDS in EU-US arrangements?

7. Some of the changes proposed sound good (eg “private interests cannot undermine public policy objectives;”) but how can they be guaranteed? In practice, the courts will decide how far these principles are effected (they always do) and we can’t guarantee, once set up, that courts will do as we wish. Corporate lawyers will get creative!

8. There are still many reforms to ISDS that have been proposed which are not included in this proposal, eg that costs should be borne by the unsuccessful litigant, that litigants should demonstrate they are upholding the law before suing governments (so there will be many cases brought by disreputable companies), that amicus curiae/third party briefs will be permitted etc.

9. The move throws away the Parliament’s negotiating position with the European Commission far too early. The TTIP negotiations have years to run, and opposition to ISDS will continue to build. Rather than accept a compromise investor protection system at this stage, the Parliament should hold off until popular opposition to ISDS has made all special deals for foreign investors unacceptable.

10. Finally, the compromise amendment means that the Parliament only has the option to vote for ISDS-lite (as set out in the current draft of the Parliament’s resolution) or ISDS-liter as in the compromise, rather than the original amendment put down by MEPs like Labour’s Jude Kirton-Darling which called for excluding ISDS from TTIP altogether.

The lengths that European Parliament politicians have gone to, responding to public concern, demonstrates how effective and influential the campaign against ISDS has become. No one in the European Parliament is now defending the sort of ISDS that has been included in the already concluded EU trade deals with Canada, Singapore and so on.

Unions and other campaigners will be demanding those trade deals have to be scrapped or completely rewritten, and we will be building popular opposition to special rights for foreign investors, whether they’re called ISDS or not. We’ve come a long way, and losing this skirmish doesn’t mean we can’t win this trade war.

Take action! Email your MEPs now

17 Responses to #TTIP news: 10 reasons why the latest #ISDS compromise is a bad deal

  1. Ray Hennessy
    Jul 2nd 2015, 8:58 pm

    TTIP in any form is an attack on democratic government at both national and at local levels As can be seen in South America and in some US States, big business and global companies, who far outweigh their opponents in cash terms, will throw massive amounts of advocacy at small councils – so great in fact that the whole idea of democracy is buried under a pile of writs. THIS MUST NOT BE ALLOWED.

    If you believe in democracy, you must believe in open government and open justice. Please vote against this conspiracy to undermne democratic government.

  2. John Holden
    Jul 3rd 2015, 6:18 am

    Please stop TTIP and ISDS before they ruin this country.

  3. Geoffrey Herbert Keable
    Jul 3rd 2015, 11:00 am

    We must not allow our government or the E.U. to sign up to this deal as it stands ,or we will loose a lot of the things that have we have gained over the last 100 years or so.

  4. Gerry Ward
    Jul 3rd 2015, 11:45 am

    Dear Mr Own Tudor, Can you please,please, assure everyone on this site that you will not be retiring any day soon, this country desperately needs people like you, I class myself as a Socialist, and am a massive believer in Human Rights,(and read whatever I can on this subject) and to some degree a philanthropist, at least in terms of giving up my free time to try and help others,(Was an unpaid carer for the last three years for my wee mate Keith, who sadly passed away just over a year ago) and used to be a volunteer worker at an Alcohol Recovery Organisation called D.R.A.W once or twice a week to try and help people with Bills and Benefits, Anyway My Apologies I am digressing, this country needs people who will not “SELL THEIR SOUL TO THE DEVIL” and sod the rest of us.
    TTIP needs to be stopped, why is it not on the news every night? or in the papers every day? In my Humble and Subjective Opinion it is because the political scene the world over has too many rich people with more money than either sense or compassion for their fellow Human Beings, who are clearly trying to Influence Governments the world over as can be seen and reflected in the current TTIP deal as it currently exists, This country is sleep walking into becoming a “Mini America” who are meant to be the “Land of the Free” and yet have more people in prison per head than most of the so called civilised countries of the world, one of the major problems is that large corporate lawyers are all too eager to Misuse In a very clever and sometimes subtle way the very thing that they are meant to uphold, “The LAW” so unless this next maxim is untrue it needs to be totally removed by every legal system that It does not apply to Verbatim, and that Maxim is that (In theory at Least) we are “ALL EQUAL BEFORE THE LAW” but it would appear some people want to be “More Equal” than the rest of us.
    As a Scot who has lived in the North East of England for over 25 years, I am happy and settled here, but should the Tories get their own way and try to dismantle the whole welfare state as well as the NHS, then Firstly Long Live the Revolution and failing that regarding more cuts to Welfare and “DISABILITY BENEFITS” which have been linked to 10,000 deaths in a report the Tories and the DWP don’t want released despite the I.C.O saying it should be, Adding to the fact that the father of all slapheads and a man with a face so devoid of any sympathy or compassion for those he is meant to be the minister for “The Dept for Work and Pensions” I Refer of course to none other than Mr Iain Duncan Smith, A man that I for one would simply not get fed up hitting in the face with a baseball bat until hell had frozen over, and who as I speak Is trying his utmost to rush through another 3,000 “Victims” to be subjected to his new “P.I.P” Regime declared in a recent Judicial Review by a Judge to be deemed “UNLAWFUL” but not against your Human Rights(I cant really work out why? It clearly (for Me at least) fits most, if not all of the criteria for Article 8 of the said Acts and Protocols) anyway I Digress once again,
    Should the Tories proposals to try to Grind those on Benefits even further into the ground than they already have done and add even more deaths to the 10,000 people already subjected to yet another Tory policy more akin to Disability ESA Euthanasia, than to actually having any real practical connection with “HELPING” people find work in their own time (should this in fact be what they are trying to do in this case but I very much doubt It) this in fact is the very self same reason as to why these people (myself Included) are classed as needing to be placed in the “Support Group” In the first place, there was also another Judicial Review which declared that under the current WCA system for “Assessing” those with MHP (Mental Health Problems for future reference) was Discriminatory against people with MHP you don’t need to be a Doctor to be able to tell that if someone has a bone sticking out, they are clearly in a lot of pain, and cant walk as a result of this, that they have a broken leg (at Least) and yet, we are asked (and Expected) due to dubious legislation, which allows this Government to get away with being able to allocate non expects in the Field of the most complicated and unique functioning organ in the body of every Human Being on the Planet, I allude of course to the “Human Mind” Apparently it is O.K and “Acceptable” to allow these non experts, which includes, D.M,s (Decision Makers) so adept are these people at mental health assessments that they don’t even have to see or speak to you” AMAZING JUST HOW DO THESE PEOPLE DO THIS” I await a Government reply with Baited Breath, on the bright side though we are expected to take the word of so called “Health Experts” who surely MUST have some degree in Psychology) YES? Well no actually but they are still allowed to assess some of the most Vulnerable people in our Society, and declare them “FIT FOR WORK” Only for a lot of the 10,000 people already placed in that position to Die within a six week period of having the decision overturned, clearly meaning that regardless of anything else, the original “Assessment” was clearly wrong in the first place, and proof of that can also be gleamed from the fact that most,(If Not All) of these very vulnerable people, had a mountain of medical evidence to support their case, which was clearly “Overruled” by the Government or the DWP,s “Health Expert” In an area so complicated we are only beginning to scratch the surface of, “The Human Brain” we all have one but they are so complicated, and “Unique” to each living Individual that not even Conjoined or Monozygotic twins have the exact same one, but never mind (Pun Intended) we can rely on these non experts in this field the Government or DWP Approved “Health Experts” to “Get things right on the day” failing that we can surely rely on the D.M,s who have absolutely no medical training whatsoever, most of whom could not tell their Gluteus Maximus from their Elbow, even if they were tortured, and to the best of my knowledge don’t apply the “Brown Principles” as they should do to any and all decisions, the proof of which can be determined once again by the 10,000 people who have been Manslaughtered (Subjective Opinion) and who were nothing more than “Victims” of a Government who’s policies are more Akin to Right Wing Extremism than anything else and does nothing to endorse Mr Ca moron’s “Vision” that apparently we are “All in this Together” (I must have been asleep that day)
    The Current Governments Policies should not only be removed with Immediate Effect, but those in the party who Implemented these “Ideas for change” should be charged with both crimes against the state and put on trial for crimes against Humanity, If the Tories are hell bent on Finding £12 Billion pounds in cuts, why not put more effort into claiming the £139 Billion this country loses every year to “Tax Avoidance” and make it law that deliberately trying to avoid “Paying what you owe” morally at least if not legally at the moment, will conclude by recovering all the money they should have paid With at least 10% Interest on Top, and a fine so high it would make their eyes water, as well as an “AUTOMATIC PRISON SENTENCE” with a minimum of 2 Years with “No Parole” and higher sentences dependant on amount avoided and the potential damage such actions have had on the country, there is for the record between 35 to 50 TRILLION (YES THAT IS TRILLION $)IN TAX AVOIDANCE MONEY, lying in offshore accounts. anyway I am sure this government know what they are doing (that’s what really worries me) Still we Live in Hope, or don’t as the case may be,
    There is an old saying amongst those with expertise and who actually deal with and work with people who have various forms of MHP, there is no Health without Mental Health. clearly something that has not been either listed to or understood in its fullness by the current crop self serving “Chums Anonymous” Politicians known as the (CONservative Party) Who’s current policies make the Rich even Richer and the poor DEAD The Latter being the real cost of these Austerity Cuts which punish those most in need for the failings of an Industry which this, and other Governments before them either couldn’t or wouldn’t Control them by applying much Higher Fines, Sackings without pay (never mind without Bonuses) and being tried for whatever crime using other people’s money to “Gamble With” safe in the knowledge, that they themselves won’t be effected (unless of course they may lose their bonuses) comes under in Law, For a Government that seems to prefer a stick to a carrot when it comes to trying to make things work (The banking Industry seemingly being the exception) bringing them into line by making it a clear Criminal offence, punishable by a “Minimum Prison Sentence” a ruling that should also apply to the FCA for allowing these failings to happen in the first place, Until these or similar proposals are put in place then the Status Quo Will remain Ad Infinitum,
    To Summarise, any more attempts at more cuts to the welfare benefits, and I will be forced to Sell my house and move back to my Native Country of Scotland, and then proceed with a “Claim” against the Government for breaking Article 8 or the 1998 Human Rights Act, proof of which can clearly be supported by this very article, Human rights will still be applicable in Scotland regardless of anything else they have vowed to keep It, and even though Scottish Law does differ from English Law, the basis of the case would be based on E.U Law which(In theory at least) Supersedes both or at the very least needs to comply with It or be declared Incompatible)Scotland is now the only really true and decent country left that still has any true Socialist Policies or Values in its Manifesto that would protect those that need Protecting for the reasons mentioned, and the main reason I would be “Forced” to Move Back. P.S My apologies for saying I would like to hit I.D.S in the face with a baseball bat, Clearly that was an Error on my behalf, I did of course mean a “Cricket Bat” which is far more in keeping with his Status. Thank You.

  5. John Holden
    Jul 3rd 2015, 1:19 pm

    Its amazing how many “Socialists” who are all for peace and human rights want to “smash people in the face with a cricket bat” or violently demonstrate against anything the Tories do!! What happened to discussion? Even more amazing is that when the Labour government were in, they never repealed any of the acts the previous Conservative government put in. So did they secretly agree with them?
    Anyway, I also digress and must agree that selling off out NHS should not be allowed.

  6. Gerry Ward
    Jul 3rd 2015, 4:11 pm

    Dear Mr John Holden, for a start I never said I was “All for Peace” although that would be the wish of us all, “As the contestants in the Miss World Competitions used to say, and for the record when a group of “Disabled People In Wheelchairs” wanted to have a “DISCUSSION” with “Mr Ian Duncan Smith” they were met with him being surrounded by “ARMED POLICE OFFICER” You seem to know more about this than me, so no doubt you will have a “perfectly reasonable explanation as to WHY this was both the case and clearly deemed Necessary” you used the word “Amazing” and yet despite the myriad of comments I made and subjects alluded to, and potential things that I personally would like to see done,(Baseball and Cricket bat aside) Sadly the only decent thing you did say was in regard to the Labour Party, this only endorses my point, The Labour Party are no longer recognisable as such, and in a “So Called Democracy” using an outmoded voting system which clearly does not represent the reality of the vast majority who voted. made worse by Government moving “boundaries” in order mislead people and help further their own Cause by fair means or foul, and secondly, for a start you know nothing about me or any Illnesses I have, why did you not contradict me on all the other points raised John?
    Clearly I must have left myself open to a counter argument on any or all of the other points raised, what do you know about me? am I in a wheelchair? suffering from some other Illness that would in fact make the “Theoretical” Statement for an act that in Reality won’t ever happen, whether I was in full health or not, what I was exercising was my right to “Free Speech” and expression Under the 1998 Human Rights Acts and Protocols Article 1 Protocol 1 something Else this all knowing all seeing Oracle of a Government want to remove, the question you should be asking is, Why would anyone want to do that to I.D.S? are there any reasons to justify that? the obvious answer is no, more to the point. when people vent their anger, they could potentially be “Violent by Nature” or simply “Frustrated” at the situation they find themselves in, and with their lives depending on the essential benefits they receive, and at the same time having no control over it, and basically are at the mercy of a Government Filled with “Millionaires” and so out of touch with the vast majority of people that it Beggars Belief they were even allowed to stand for election never mind run the Country.
    So before you go trying to “Defend the Indefensible” or is the Deaths of 10,000 Mostly Disabled people now classed as Acceptable these days? while not allowing a F.O.I Report to be made public, they can tap our phones, and look at our emails, but God Forbid they be subjected to any form of scrutiny by those they “Are Meant” to represent, so before you go trying to take the moral high ground here John, ask yourself WHY people to be moved to even think such things, there surely has to be a reason? or don’t you agree, or is everyone on Benefits now the accepted mode of currency as Cannon Fodder these days? Collateral Damage perhaps?
    With regards to your Labour Party quip, that was clearly covered by my last point, relating to the SNP in reality being the only real party left with true “Socialist” Values” I am sure you could clearly understand the P.S part, It may have been a feeble attempt a comedy (or should that be Irony) that a Government who tells us that we are “All In this Together” won’t meet with those whose Benefits they expect to cut by up to £30 a week regardless of who they are or whatever their circumstances,
    Finally John Could you please Address all the other points mention in my First Email starting with (1) All equal before the Law (2) the 10,000 potentially Linked Deaths report that the I.C.O have said is O.K to be released but neither the “Beloved” Tory Party with a 12 seat Majority gained under a system whereby they get less than 40% of the Vote or their Henchmen the DWP want the report to be released. WHY? (3) Why Is Mr I.D.S hell bent on trying to push through that yet another 3,000 people be “Assessed” for his P.I.P Revolution when (A) It has been blighted by problems and protests since day one and is well behind schedule (please don’t say that this is the reason for hurrying up his P.I.P Assessment for these 3,000 poor sods who if they fail this Pathetic “Assessment” could be forced to wait over a year to get a decision on whether that decision was correct or not (Hence the 10,000 Deaths John) or is the fact that I will continue to keep making of this point simply just me being Pedantic? well if it Is then (4) should be a doddle for you to answer John, (remember all equal before the Law point John?) why are 3,000 more people being put at risk despite a “JUDICIAL REVIEW” Declaring it UNLAWFUL JOHN? I’m fairly sure you can explain that one with ease, so while you are. what about (5) DWP Tests Deemed “Discriminatory” against people with MHP. for the record John I don’t know much about these things, but apparently this was another “JUDICIAL REVIEW JOHN” brought against this wonderful bunch of politicians who are just trying to unite this once great country, anyway John this case was brought against the Government by 4 organisations you might have heard of the RNIB, The Autistic Society, (and we all know what money grabbing …….. they are don’t we JOHN) M.I.N.D and last but not least Re-Think Mental Illness, for the record JOHN I have links with all of them, anyway you have a 5th question still to complete. The Decision was made in the Upper Tribunal by no less than three Judges sitting En banc the decision was Unanimous John, and to date I have not heard about any successful appeal, however I will stand corrected and bow to your greater knowledge should you supply me with the correct court case details which are usually in Square Like Italics [ ] please note the other type { } basically from a legal reference point of view tell you Diddly Squat, anyway JOHN, it is knocking on a bit now so If you can please just let me know two final things, what Medical qualification do the “Health Expert” approved by this Government Have? and finally how many of the D.M,s Decisions which refuse ESA/Similar are actually accompanied by the said D.M,s Reported copy of their case file and “Diary” which unless adhered to should (In theory at least) be declared unlawful for not adhering to the “Brown Principles” as set out in case Law, and which in reality are meant to be “Complied With” Before and not after the event.
    Phew John I don’t know about you JOHN but I am Knackered. one last thing John, I am positive you can easily answer this one, it’s a piece of …. as we E By Gum Lad Uneducated Northerners like to say, or anyone even anyone living north of Watford.
    Have you heard of the “BULLINGDON CLUB” JOHN? If you haven’t then please feel free to check this out and get back to me, in order to become a member (many and mostly Tories are members) one of the “INITIATION CEREMONIES” Is that you have to Burn a £50 Note in front of a homeless Person/Tramp, the reason for which you would need to ask possibly one of the beloved Conservatives Like say Mr Boris Johnson, I believe he is/or was a Member as are many many others in the Tory Party. so please forgive my “Socialist” uneducated left wing ramblings filled with mere clever rhetoric and sophism, as opposed to what exactly JOHN. Tory lies and Propaganda? why is TTIP not in the news JOHN? or on the T.V JOHN? I really must try Burning a £50 note in front of a homeless person, the only problem is JOHN I don’t know what one looks like. Sarcasm and Irony are my specialties JOHN but I do always try and work hard on Facetiousness just in case its ever warranted. Have a nice day……… JOHN

  7. MEPs must listen to the people and vote down #ISDS compromise in #TTIP debate
    Jul 4th 2015, 10:18 am

    […] new amendment still gives foreign investors special legal treatment, which is clearly a hugely unpopular […]

  8. Why investor protection matters so much in trade deals
    Jul 6th 2015, 8:09 am

    […] the rest of the European trade union movement, we’re calling on MEPs to exclude ISDS, and ISDS-lite from trade deals. Some people say that trade unions and others are making a fuss about nothing, but […]

  9. European Parliament view on EU-US trade deal
    Jul 9th 2015, 12:19 am

    […] over investor protection, essentially replacing Investor-State Dispute Settlement (ISDS) with ISDS-lite. Despite what some of the architects of that compromise say, the European Parliament voted today […]

  10. Ray Hennessy
    Jul 9th 2015, 5:44 pm

    Gerry Ward asks What does John know about him? Well “prolix” springs to mind, also alliteratively “garrulous”. Gerry, you may well be making some excellent points but do you have to write 1500-2000 words every time? That counts as a rant, not reasoned argument. This discussion is about TTIP but you manage to mention it only three times in the latest two submissions which total over 3200 words.
    Please summarise your views in about 100 words. I personally think TTIP is evil [6 words].

  11. Gerry Ward
    Jul 11th 2015, 5:33 pm

    Reply to Ray Hennessy, Me To[ 2 words]

  12. Geoffrey Herbert Keable
    Jul 11th 2015, 6:23 pm

    TTIP is evil. Nothing more needs to be said.

  13. ISDS-lite could yet scupper the EU-Canada trade deal
    Jul 16th 2015, 10:07 am

    […] TUC is no fan of the revised Investor-State Dispute Settlement (ISDS) process that EU Trade Commissioner Malmstrom has persuaded the European Parliament to back in the […]

  14. Government fails to address BIS Select Committee's concerns on TTIP
    Aug 5th 2015, 8:44 am

    […] the ISDS-lite that EU trade commissioner Malmström proposed earlier in the year which the TUC has condemned as it continues to provide privileged rights for investors to make claims against government […]

  15. chris_lucy
    Aug 5th 2015, 1:37 pm

    Faceless, soulless, money-orientated corporations from USA running the show over here too. No way! Think our government, councils and finances can stand up to these capitalist steam-rollers. Not a chance. So, don’t give them any chances – they will win at our cost. There will be better ways to mange our fledgling NHS, transport, education and other public services – and it means more people taking the time to listen, read – educate themselves and contribute towards making society better in this country. Unfortunately, most will remain ignorant, continue to be apathetic or lazy …. and that’s the real battle ahead – convincing others that they can make a difference. Bore your friends at dinner parties, hand out flyers/tweet/email/share valuable information – stand out in the rain and be counted if that’s what it takes. And that… is exactly what it takes.