Συμμετοχή ΣΒΑΠ στην δημόσια διαβούλευση της Ευρωπαικής Επιτροπής σχετικά με τους τρόπους προστασίας των επενδύσεων και ISDS σε ΤΤΙΡ 3.7.2014
Δημόσια διαβούλευση σχετικά με τους τρόπους προστασίας των επενδύσεων και
ISDS σε ΤΤΙΡ.
Public consultation on modalities for investment protection and
ISDS in TTIP
Athens, 3rd of July 2014
Subject: Online public consultation on investment protection and investor-to-state dispute settlement (ISDS) in the Transatlantic Trade and Investment Partnership Agreement (TTIP).
Question1:
Taking into account the above explanation and the text provided in annex as a reference, what is your opinion of the objectives and approach taken in relation to the scope of the substantive investment protection provisions in TTIP?
Further improvement is needed in the terminology of the text in order to specifically address the issue of who can be considered as an “investor” and thus to be subject to the provisions of the final Treaty. The term “substantial” is too objective and needs to be further elaborated.
This issue, like other in this consultation, is directly linked to the creation of a secure legal environment, which is a precondition for the enhancement of the investment flows and the benefits of economic growth that these bring as a result.
Question 2:
Taking into account the above explanations and the text provided in annex as a reference, what is your opinion of the EU approach to non –discrimination in relation to the TTIP? Please explain.
A strong investment protection text is needed for the TTIP to deliver its full potential benefits for both the investment community and the member states receiving the benefits of the investments. This strong regime must include an equally strong dispute resolution mechanism, without unjustified exclusions that might create an unfair state of competition between potential investors and already established local businesses.
It is imperative that public policy goals like the protection of the environment or public health are facilitated. However, this does not mean that this can be better achieved by excluding from the scope of the treaty of the dispute resolution mechanisms entire business sectors. Issues like these should be judged on an ad hoc basis, without preliminary exclusions that might deviate the treaty from the aim to create a level playing field between foreign investors and local businesses.
Question 3:
Taking into account the above explanation and the text provided in annex as a reference, what is your opinion of the approach to fair and equitable treatment of investors and their investments in relation to the TTIP?
Fair and equitable treatment to the investors is a fundamental part of the treaty and should not be limited to an exhaustive list of action, especially since this list (as in the EU-Canada Agreement) does not refer to “legitimate expectations”, a concept/principle which also very important for the stipulation of foreign investments.
Question 4:
Taking into account the above explanation and the text provided in annex as a reference, what is your opinion of the approach to dealing with expropriation in relation to the TTIP? Please explain.
Broadening the scope of the expropriation is needed, so as to cover governmental decisions that arbitrarily lead to a de facto expropriation of business property or rights.
Question 5:
Taking into account the above explanation and the text provided in annex as a reference, what is your opinion with regard to the way the right to regulate is dealt with in the EU's approach to TTIP?
No comment.
Question 6:
Taking into account the above explanation and the text provided in annex as a reference, please provide your views on whether this approach contributes to the objective of the EU to increase transparency and openness in the ISDS system for TTIP. Please indicate any additional suggestions you may have.
It does contribute to the transparency of the mechanism. We agree with the EU approach.
Question 7:
Taking into account the above explanation and the text provided in annex as a reference, please provide your views on the effectiveness of this approach for balancing access to ISDS with possible recourse to domestic courts and for avoiding conflicts between domestic remedies and ISDS in relation to the TTIP. Please indicate any further steps that can be taken. Please provide comments on the usefulness of mediation as a means to settle disputes.
The approach adopted by the EU is in the right direction.
Question 8:
Taking into account the above explanation and the text provided in annex as a reference, please provide your views on these procedures and in particular on the Code of Conduct and the requirements for the qualifications for arbitrators in relation to the TTIP agreement. Do they improve the existing system and can further improvements be envisaged?
No comment.
Question 9:
Taking into account the above explanation and the text provided in annex as a reference, please provide your views on these mechanisms for the avoidance of frivolous or unfounded claims and the removal of incentives in relation to the TTIP agreement. Please also indicate any other means to limit frivolous or unfounded claims.
It is in the interest of both member states and investors that frivolous and unfounded cases are limited. However, the EU approach must be improved, so that not every losing party is penalized simply because they filled or defended a claim, which might not necessarily be frivolous or unfounded. Our view is that the principle of sanctioning unfounded claims should be restricted to claims which will be dismissed as such (i.e. based on the fact that they are manifestly without legal merit). In other words, the losing party should bear all costs in cases that bad faith, no legal merit or frivolous claim are found in its claim.
Question 10:
Some investment agreements include filter mechanisms whereby the Parties to the agreement (here the EU and the US) may intervene in ISDS cases where an investor seeks to challenge measures adopted pursuant to prudential rules for financial stability. In such cases the Parties may decide jointly that a claim should not proceed any further. Taking into account the above explanation and the text provided in annex as a reference, what are your views on the use and scope of such filter mechanisms in the TTIP agreement?
No comment.
Question 11:
Taking into account the above explanation and the text provided in annex as a reference, please provide your views on this approach to ensure uniformity and predictability in the interpretation of the agreement to correct the balance? Are these elements desirable, and if so, do you consider them to be sufficient?
Predictability is a very important element in a dispute for all involved parties and especially the investor, who is taking the financial risk of the investment. However, a mere possibility of the non-disputing parties or one non-disputing party to intervene and provide its/their interpretation is not sufficient to fulfill this goal.
The EU needs to clarify more its intention, so that the possibility of interpretations that defy the substance of the treaty is eliminated.
Question 12:
Taking into account the above explanation and the text provided in annex as a reference, please provide your views on the creation of an appellate mechanism in TTIP as a means to ensure uniformity and predictability in the interpretation of the agreement.
The creation of an appellate mechanism and thus the EU approach is going to be an advancement for the successful implementation of the treaty and the creation of a uniform, consistent and trust-generating legal environment.