EFILA publishes response to the criticism against ISDS

Since the Lisbon Treaty entered into force almost 6 years ago, the European Commission began  developing its own  EU investment policy. The core of this new investment policy is the conclusion of trade and investment treaties with strategically important countries. In the context of these negotiations, the critique against investor-state dispute settlement (ISDS), which is contained in practically all Bilateral Investment Treaties (BITs) as well as in recently concluded Free Trade Agreements (FTAs) such as the EU-Canada treaty (CETA) and the EU-Singapore treaty, has become more vocal.


Critics have raised concerns about the pro-investor interpretation of investment treaty provisions and their perceived unpredictability, the alleged lack of transparency of arbitral proceedings, the alleged lack of independence and impartiality of arbitrators. Others have suggested that ISDS bypasses the operation of domestic law and national courts and stymies the right of states to regulate. Criticisms have also been raised against the investor-state arbitration process itself, claiming that it allows partisan, self-interested arbitrators to secretly overrule governments with no right of appeal.


EFILA decided to write a paper in order to address the most often voiced myths against ISDS. The paper aims at balancing the currently rather one-sided debate by providing an in-depth analysis, based on arbitration practice and literature. The EFILA paper in response to the criticism against ISDS is available under the following link: http://efila.org.domainpreview.nl/wp-content/uploads/2015/05/EFILA_in_response_to_the-criticism_of_ISDS_final_draft.pdf

Academics sign a letter in support of ISDS

46 eminent professors of international law from major Canadian and US universities has signed an open letter in support of investor-state dispute settlement provisions (ISDS) in international investment treaties. The letter calls for the discussion on ISDS based on facts and balanced representations instead of ‘errors or skewed information’. The letter is available under the following link: https://www.mcgill.ca/fortier-chair/isds-open-letter

EFILA organizes event on ISDS in the European Parliament

Since the start of the negotiations for the Transatlantic Trade and Investment Partnership Agreement (TTIP), the issue of investor-state dispute settlement (ISDS) has become the most hotly debated subject in Brussels and in many Member States. This traditional method of dispute resolution between a foreign investor and a State, in which the investor can seek recourse when a State has discriminated against the investor, is now at the forefront of the political debate in Brussels and elsewhere.


This event will try to provide answers to the following questions: is ISDS really a Trojan horse which may be used by American and other foreign investors to undermine labour, environmental and health standards as cherished in the EU? Does ISDS allow international companies to bypass national judicial systems, possibly at the expense of domestic competitors? Does it constitute a competition to State courts? Is the process inherently corrupt and flawed?


The event entitled “Unveiling the mystery of ISDS’ and co-organized by the European Federation and Investment Law and Arbitration (EFILA) as well as Mr Christofer Fjellner MEP and Professor Danuta Hübner MEP, will take place at the European Parliament (to be confirmed) on 14 April 2015.


To register please contact Blazej Blasikiewicz, General Manager, at b.blasikiewicz@efila.org

EFILA’s comment in Borderlex

EFILA’s comment entitled “Turning the tide on deteriorating EU investment protection standards after Lisbon” has been published by Borderlex, an online platform providing independent news and analysis as well as commentary from leaders in the field of trade policy.


The comment is available on Borderlex webiste.