Investor-State Arbitration Under TTIP: Resolving Investment Disputes in an (Autonomous) EU Legal Order

Abstract

Controversies about the inclusion of the investment-state dispute settlement (ISDS) mechanism have been dominating the debate surrounding the ongoing negotiations of the Transatlantic Trade and Investment Partnership (TTIP) agreement in many EU countries. The level of social anxiety and the amount of heated political discussion about the instrument may seem somewhat surprising knowing that since the 1960s the EU Member States have concluded more than 1400 investment protection treaties, and by the 1990s ISDS had developed into a standard provision in such agreements.

Breaking away from the polarization of the ongoing debate about the ISDS, which limits the choice to either having or not having it included in the treaty, this report is attempting to address the issue from a legal rather than political perspective and show alternative solutions. The report investigates the systemic challenges of inclusion of ISDS provisions in the TTIP, and their compatibility with the principle of autonomy in the EU legal order. The author argues that the risk of incompatibility of the ISDS framework can be alleviated by innovative drafting of the relevant provisions and thereby address the many democratic concerns underlying public criticism of ISDS.

Keywords: EU law, EU as a global actor, ISDS, TTIP, investor-state, investment law, CETA, common commercial policy