bilaterals.org | Europe : la peur des tribunaux d’arbitrage
Le Monde | 13/01/2015
Europe: the fear of arbitration tribunals
Cécile Ducourtieux (Brussels, European office)
145,000 responses against a total of 150,000 ... The consultation launched by the European Commission in spring 2014 on investment arbitrations, and she has made the conclusions Tuesday, January 13, delivered a result without nuance s: public opinion today do not want it. "This clearly shows that there is considerable skepticism about this mechanism," acknowledged Cecilia Malmström, Commissioner for Trade has traveled to Strasbourg, the European Parliament - rather very negative also in the courts Arbitration on Monday to present the consultation.
Investment arbitration is a mechanism that allows a company to use a private tribunal, "neutral" to attack a State, when it considers that its investment was injured. All bilateral investment agreements between countries and almost give the possibility to use this justice, considered very protective for business. But since the European Commission has announced plans to include these arbitration tribunals (ISDS State for Investment Dispute Settlement) within the transatlantic treaty, agreement totally unconventional and considerable geopolitical significance - it began with the United States, concern is raised a notch.
NGOs, MEPs and citizens are concerned about the ability of states to regulate. Recent cases have alerted them: thus the cigarette company Philip Morris attacked Australia just after his government passed a law requiring the neutrality of cigarette packs, in 2011. The case has still not been found.
Among the responses to the consultation, even the participants from the business, if they are not hostile to the principle of arbitration, are worried that the EU does "lowers the level of investor protection" . Others fear that the arbitration mechanism is "the prerogative of very large companies," because it will be difficult for small investors to use it, because of "its cost and complexity."
Europeans have come to an agreement
Aware that the ISDS is flawed and must be improved, the Commission has outlined four tracks of work Tuesday in Strasbourg. Guarantee the right of countries to regulate better coordinate national justice and these private courts, better regulate the functioning of these trade-offs - check that the referees are actually independent. And finally, the need to establish a genuine appeal decisions of these courts - for now, it is almost impossible.
Cecilia Malmström was very clear on Tuesday: "We need to conduct a frank and open discussion on investment protection and dispute resolution in the transatlantic partnership with the governments of the countries of the European Union, the European Parliament and civil society before issuing any policy recommendation in this field. This will be the first thing to do after the publication of this report. »
It will take the Europeans to agree on the merits in the coming weeks before to continue negotiating the transatlantic treaty with the Americans. We maintain an ISDS procedure in this treaty or not? Within the Commission, the opinions are divided. President Juncker has publicly expressed his prejudices, late 2014. institution's services are rather, believing that these courts are a great way to protect European investments outside the Union.
MEPs are rather reserved, all political parties. As for the countries, they are also shared. "France has never been in favor of the integration of ISDS in transatlantic treaty," says Monde Secretary of State for Trade Matthias Fekl. He has to go in the coming days in Berlin to try to find common ground with his German counterpart. "If we must maintain ISDS in the treaty, then calls for the appointment of arbitrators be better controlled, so that could be condemned companies who abuse arbitration" Mr. Fekl list. "Why not think, too, to a requirement to submit the arbitration decision - for approval - to a judge of a national court? It would also be a way for states to regain control, "still considers Mr. Secretary of State.
Cécile Ducourtieux (Brussels, European office)
Brussels correspondent
