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Council of Canadians rejects both ISDS and ICS in CETA

The Council of Canadians rejects both the investor-state dispute settlement (ISDS) provision and the proposed investment court system (ICS) for the Canada-European Union Comprehensive Economic and Trade Agreement (CETA).

Council of Canadians chairperson Maude Barlow has written, “Corporations have used ISDS to launch a challenge against government measures more than 600 times. Contrary to proponents’ claims that ISDS is a fair and independent dispute system, an in-depth investigation by Corporate Europe Observatory and the Transnational Institute found that an elite coterie of lawyers, arbitrators and financial speculators are making a killing seeking out and actively recruiting corporations to sue governments around the world over new health and safety, labour or environmental rules.”

In response to the mounting criticisms of ISDS, the European Commission announced a plan to ‘reform’ this provision by establishing a new European investment court system for the European Union-United States Transatlantic Trade and Investment Partnership (TTIP). But Barlow says, “This reform still fails to require foreign investors – like everyone else, including domestic investors – to go to a country’s domestic courts before seeking an international remedy. The proposed investment court system still gives a special status to foreign corporations by allowing them to challenge the laws that apply to everyone else through a special system outside established court systems.”

In short, investor state rules – whether ISDS or ICS – give special rights to corporations, but not basic protections to states, their populations or the land and water.

Our allies including War on Want, Transport & Environment, and Friends of the Earth Europe have also rejected the proposed ‘reform’. Global Justice Now has highlighted that 97 per cent of respondents in a consultation rejected investor-state provisions in any form. French MEP Yannick Jadot says, “It is necessary that Member States hear that European citizens do not just want a change at the margin of the arbitration, but removal of the provision.” And MEP Ska Keller says, “[This] would be little more than a PR stunt, ignoring the core of the problem. The proposal changes nothing about the fact that investors get an extra-judicial system that will only deal with their rights, not their obligations.”

This may become an increasingly pressing issue in Canada.

That’s because on Nov. 17, the House of Representatives in the Netherlands voted to demand that the ISDS provision in CETA be reopened and adjusted to be consistent with the European Commission’s ICS proposal for TTIP. The resolution was adopted by a majority vote in the 150-member legislature, with the support of all center and right-wing parties. The 4-member GroenLinks (GreenLeft) and the 2-member Partij voor de Dieren (Party for the Animals) voted against the resolution. GreenLeft also has 2 seats in the European Parliament (Bas Eickhout and Judith Sargentini), while the Party for Animals has 1 member in the European Parliament (Anja Hazekamp).

We do not know how the Trudeau government will respond to this.

The Harper government had previously maintained that CETA was closed to renegotiation, but the Trudeau government may not be so unaccommodating (especially given CETA could be voted down in the European Parliament if the ISDS provision is not amended in some way). Unfortunately, the opposition New Democrats could be receptive to re-opening CETA as well. During this past federal election, then-NDP trade critic Don Davies stated that the investment court system was a “good idea that is worth serious consideration”. It is our hope that the new NDP trade critic Tracey Ramsey will take a stronger position against this.

It is expected that CETA will go before the European Parliament for ratification votes either in late 2016 or early 2017. Prime Minister Justin Trudeau has already instructed trade minister Chrystia Freeland “to implement” CETA.

The Dutch resolution to re-open CETA can be read in full here.

For more on our campaign against CETA, please click here.

Further reading
Fighting CETA, TTIP and ISDS: Lessons from Canada by Maude Barlow
Watch the Free Trade 101 whiteboard animation video (Nov. 17, 2015)
MEPs and EU trade ministers reject Malmström’s ISDS reforms (May 7, 2015)
ATTAC handimation video explains TTIP and ISDS (May 3, 2015)