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ClientEarth Communications

27th September 2018

Rule of law

Lawyers sue EU Commission for information on legality of trade deal tribunals

ClientEarth has challenged a judgment regarding the European Commission’s decision to keep secret information about controversial investment tribunals in EU international trade deals.

Lawyers from environmental law charity ClientEarth have appealed to the Court of Justice of the European Union to challenge a judgment of the General Court. The judgment concerns the Commission’s refusal to allow access to a legal analysis of investor-state dispute settlement (ISDS) and Investment Court System (ICS) tribunals and their compatibility with EU law.

ISDS and ICS create special tribunals that are only available to industry, with proceedings that may be confidential and judges who are not publicly accountable. They allow companies investing in another country to sideline domestic courts and sue governments over environmental and social laws that affect their investment.

Analysis from environmental law charity ClientEarth shows that this may not be compatible with EU law and in 2016 its lawyers requested access to the views of the Commission’s legal service regarding the compatibility of these dispute settlement mechanisms with EU law, given public interest in this issue. However, most of the relevant information was redacted.

ClientEarth trade lawyer Amandine Van Den Berghe said: “ISDS is not only an unwelcome tool that allows multinationals to put pressure on public interest decision-making, it is also incompatible with EU law.
“EU institutions must be more transparent about this important issue and show they are committed to the rule of law. We also need informed public debate on whether the EU electorate really wants these controversial tribunals to be included in EU trade agreements.”

ClientEarth lawyer Anne Friel said: “The role of national and EU courts in ensuring the rights of individuals and the full application of EU law is one of the most important features of Europe’s unique legal order. Allowing investors and states to circumvent these courts in deciding crucial matters affecting everyone’s life – like the quality of our food, air and water – through the ISDS mechanism is at odds with EU law.

“In the documents we received, the most relevant parts had been redacted. We believe that access to such information is vital and we hope the Court will acknowledge the need for access to information that could inform the public’s decisions around their daily life and the environment.”