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The New Investment Protection Policy of the EU in the Free-Trade Treaties (CETA, TTIP...): New Risks for the EU?

Author: Clémentine BALDON avec la collaboration de Adèle AZZI

Type: Article

ref: 120181-18

N0:1 of 2018

Pages: 1-18

As observed by the European Commissioner of Trade, there is a huge scepticism against the ISDS instrument. It was reflected by the 97% of negative answers over 150,000 replies to the Commission’s online consultation launched in 2014 on the introduction of investment protection provisions in the TTIP. On the international level, bilateral investment treaties (“BITs”) with ISDS mechanisms have increased over the last years, along with an unprecedented inflation of the number of damages claims brought by private companies against the States, as a result of which these mechanisms have been increasingly questioned. The European Union investment policy has strengthened these criticisms as it aims at including investment protection and ISDS provisions within all the new free-trade agreements between the European Union and third countries. This policy may expose the European Union and its Member States to greater litigation risks and jeopardize their ability to regulate. Finally, it would be timely for the CJEU to assess the compliance of ISDS systems with the Europeans Treaties.