Window cleaners on skyscraper to illustrate story saying 101 law professors sign letter saying ISDS is unlawful

101 law professors say ISDS is incompatible with EU law

Over 100 EU law professors have signed a letter saying investor provisions in trade agreements like TTIP and CETA undermine EU rule of law.

ClientEarth lawyer Laurens Ankersmit, whose analysis shows that Investor State Dispute Settlement (ISDS) is illegal under EU law, said: “EU law professors have now joined Civil society and judges associations across Europe to question the legality of investment arbitration in Europe. It is absolutely crucial that the European Court of Justice is asked to clarify this issue before a potentially unconstitutional deal is concluded.”

Why is ISDS incompatible with EU law?

The 101 professors object to ISDS on the basis that it:

  • Establishes privileges for foreign investors based on vague
    substantive standards;
  • Threatens regulation in the public interest, democratic change and
    state budgets;
  • Is systemically biased and lacks rule of law safeguards.

The statement highlights a “strong tension with constitutional and European law principles” … “likely to affect the autonomy of the European Union’s legal order, as the investment tribunals’ binding and enforceable decisions on state liability threaten the effective and uniform application of EU law”.

Representing universities across the EU, the academics said the European Commission’s latest proposal “offers no cure for these fundamental flaws” in ISDS.

They added: “We therefore strongly demand not to weaken and undermine the rule of law and the democratic principles upon which our member states and the European Union were founded by providing foreign investors with an unnecessary, systemically biased and structurally unsound parallel legal and judicial system in TTIP or CETA.”

ClientEarth recently started legal proceedings against the Commission, for refusing to share official analysis of whether the controversial investor rules are legal.

The Commission asked its lawyers their opinion on the legality of ISDS and related system ICS, but refused a request from ClientEarth to see the documents.

Under EU transparency laws, the public has a right to see the documents. But the Commission refused access, saying disclosure of the legal reflections would undermine the Commission’s negotiating position.

ClientEarth lawyer Laurens Ankersmit said the documents are not about negotiation tactics, so disclosing them cannot weaken the Commission’s negotiating position.

ClientEarth is waiting for a date from the EU General Court for a hearing on its access to documents case.

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Nuno Silva