The Proposed Transatlantic Trade and Investment Partnership (TTIP): ISDS Provisions, Reconciliation, and Future Trade Implications

Abstract

On July 8, 2013, the United States and the European Union launched talks for the Transatlantic Trade and Investment Partnership, a proposed international investment agreement. This agreement would create the world’s largest free trade area and cover almost half of the entire global economic output. Other research has concluded that increasingly global trade has led to an increase in investment disputes between foreign investors and host nations and stressed the importance of investor-state dispute settlement provisions. Within an international investment agreement, investor-state dispute settlements provide investors a means of holding foreign states accountable to an international tribunal with repercussions of a binding, enforceable award of compensation.

Even with a recognized public backlash, U.S. and EU leaders have publicly stated their intention of including investor-state dispute settlement provisions in the finalized TTIP and future international investment agreements, including any future multilateral agreement on investment. A U.S. Model text includes three significant changes that will impact the adoption of investor-state dispute settlement provisions in the bilateral investment treaty: transparency; third-party involvement; and consideration for future multilateral appellate procedures. The EU Draft text and corresponding negotiating directive address the following issues: transparency, tribunal creation, enforcement of arbitration awards and potential future appellate mechanisms. This Comment provides original analysis on specific provisions regarding each of these issues and seeks to prescribe reconciliation between the U.S. and EU texts. I find that reconciliation is possible on all ISDS provisions of the proposed TTIP. Then, I conclude with a summarization of all relevant discussions.

Keywords: Investor-State Dispute Settlement, Transatlantic Trade and Investment Partnership, International Trade, Private International Law