The Transatlantic Trade and Investment Partnership came under fire from various sides including a number of political parties recently through election amnifestors. David W Rivkin, president of the International Bar Association (IBA), has now come to the defence of the proposed treaty in a statement in which he aimed to rectify misconceptions about the nature of the agreement.
Among the parties who hit out at the treaty in their manifestos are the Green Party, the Scottish National Party, Plaid Cymru and UKIP. Rivkin, who is also a partner at prominent New York legal firm Debevoise & Plimpton, said that critics of the potential trade agreement were “subverting debate” through the use of inaccurate information. In particular, he said, incorrect claims were being made about matters of investor-state dispute settlement (ISDS) contained within the treaty’s terms.
As a result of such erroneous claims about the agreement, Rivkin said in his statement: The IBA Arbitration Committee and I are concerned that the discussions about ISDS in the Transatlantic Trade and Investment Partnership and the Trans-Pacific Partnership are being compromised.”
ISDS is the process through which businesses can make complaints against nation states. Through ISDS, the businesses in question can undergo a process of arbitration through which they can have their complaints examined and the dispute settled.
The arbitration committee of the IBA, Rivkin said, is now going to analyse the matter of ISDS in depth. The committee will look at the full range of criticisms and concerns being raised about the Transatlantic Trade and Investment Partnership’s treatment of the matter, as well as the proposed benefits of ISDS. The aim will be to identify which criticisms of ISDS are substantiated in fact, and which are untrue or based on misconceptions.
Among the complaints being made about ISDS in the Transatlantic Trade and Investment Partnership which Rivkin claims to be misconceptions are:
- Investors Win Every Time: In fact, Rivkin says, a greater proportion of cases have been won by states than by investors. Around a third of all cases have come to an end with investors and states reached a settlement.
- ISDS is Guarded From the Public Eye: Another prominent complaint being made against ISDS is that proceedings rarely come under scrutiny from the public. The IBA, however, says that the majority of awards are published and that some proceedings are even streamed live online. Furthermore, a number of recent investment treaties allow for public attendance at proceedings.
- States are Forced to Change Laws Through ISDS: It has been claimed that ISDS can force states to change laws and policies against their will. However, the truth is that “States subject to investment treaty arbitration cannot be ordered to amend their laws or change their policies, and awards issued by investment tribunals do not order states to change their policies or laws.”