Photo of workmen for story saying ClientEarth is taking the Commission to court over access to ISDS papers

ClientEarth takes Commission to court over investor protection papers

ClientEarth has launched legal proceedings against the European Commission for keeping secret official analysis of whether controversial investor rules in international trade agreements are legal.

The Commission has refused to disclose documents containing a purely legal discussion on the compatibility with EU law of investor provisions ISDS and ICS in trade agreements like TTIP and its Canadian equivalent, CETA.

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: “Documents setting out the law are not strategic as they are not about negotiation tactics. The Commission is bound by the rule of law during trade negotiations, as at any other time. Disclosure of documents setting out these legal limits cannot weaken its negotiating position.”

redacted-document

Sample pages of the redacted analysis sent to ClientEarth by the Commission.

Investor-state dispute settlement (ISDS) and the Investment Court System (ICS) create special courts that are only available to industry, with for-profit judges who are not publically accountable.

This makes ISDS and ICS a powerful legal tool against environmental law-making. For example, a future decision to cancel the Hinkley Point nuclear project could face an ISDS claim from investors.

It also sidelines national and EU courts in deciding on crucial matters affecting everyone’s life, like the quality of our food, air and water.

ClientEarth analysis shows this is not compatible with EU law. The German Association of Judges and the European Association of Judges have also expressed strong reservations about the legality of ICS, and the Walloon Parliament has called for the Court of Justice of the EU to give an opinion on its compatibility with EU law.

Ankersmit added: “Investor protection in TTIP and CETA is surrounded with controversy. Publishing legal analysis and reflections on the compatibility with EU law would inform the public of the legal risks of trade agreements, and contribute to the on-going debate of whether European Court of Justice should rule on the legality of ISDS and ICS.”

Share this...
Share on Facebook! Tweet this! Share on LinkedIn! Email!

Kaique Rocha

Related articles

More from

  • upwards view blue sky highrise building

    Spotlight on auditors over climate risk reporting

    Lawyers say auditors must now understand the implications of climate risk and consider how it affects their own work and advice. There are real and increasing legal risks if they don’t.

  • orange glow misty mountain upwards

    Coal investors stand to lose billions within a decade – unless utilities act now

    As coal runs at a loss, power companies are running out of excuses to invest in it. A new report by Carbon Tracker charts a route to minimising the impact to shareholders as coal loses out to cheaper, cleaner ways of making and using energy.

  • delicate dry twigs against blue background

    “Earth to trustees” – climate risk guidance for pension funds is now available

    Until now, the pension industry has been missing a comprehensive ‘how-to’ for the day-to-day management of climate risk. The PLSA has worked with ClientEarth to publish one.

  • autumn leaves

    New reports bring to light climate liability risks facing pensions advisers

    Climate risk is present throughout the investment chain and so too is the responsibility to monitor and manage it. New legal research sheds light on how climate risk affects the advice consultants and actuaries provide to their pensions clients.

  • Follow us

    You can help

    Your support helps us use the law to protect your environment.