The Strengths and Weaknesses of TPP's ISDS

Straight Talk on the ISDS Provisions in the Trans-Pacific Partnership, with James M. Roberts and Riddhi Dasgupta, Heritage Foundation Issue Brief #4564, May 17, 2016. "The Trans-Pacific Partnership (TPP), an investment and trade agreement signed last February between the U.S. and 11 other Pacific Rim nations, contains enforcement provisions, including an Investor-State Dispute Settlement (ISDS) mechanism, for resolving potential investment disputes related to the agreement. Today, the ISDS system is used widely around the globe to help protect the investor and to secure for the signatory nation the foreign investment it seeks. But ISDS has become controversial, both as part of the TPP and because it may be included in the Transatlantic Trade and Investment Partnership (TTIP) presently being negotiated between the U.S. and the European Union. The ISDS provisions are only one component of the TPP. The agreement must be assessed as a whole. The purpose of this Issue Brief is to assess the strengths and weaknesses of the ISDS provisions of the TPP, both as part of the agreement and as part of the broad agenda of American investment and trade diplomacy."

Against An International Investment Court

The U.S. Should Reject the European Commission’s Proposed Investment Court, with James Roberts and Riddhi Dasgupta, Heritage Foundation Issue Brief #4485, November 13, 2015. "The proposed Transatlantic Trade and Investment Partnership (TTIP) between the United States and the European Union, if negotiated successfully, will certainly contain a mechanism for resolving disputes related to the treaty. The current model for Investor-State Dispute Settlement (ISDS) panels is widely used, but also wrongly controversial, particularly in Europe. The European Commission (EC), the executive body of the European Union (EU), has proposed that the TTIP create a new Investment Court System (ICS) to resolve such disputes.[1] The U.S. should firmly resist this proposal, which departs radically from the well-functioning ISDS system."

Against an International Investment Court

The Proposed Investor-State Dispute Settlement (ISDS) Mechanism: U.S. Should Oppose EU Demand to Abandon It, with James Roberts and Riddhi Dasgupta, Heritage Foundation Issue Brief #4432, July 14, 2015. "One of the most important components of the proposed Transatlantic Trade and Investment Partnership (TTIP) between the United States and the European Union is the establishment of a mechanism for investor-state dispute settlement (ISDS). An appropriately structured ISDS is an essential part of trade agreement enforcement and should be included in any comprehensive U.S. trade agreement with the EU. The EU’s proposal, backed by a vote of the European Parliament on July 8—that the TTIP should establish a permanent investment court, not an ISDS mechanism—is a bad solution in search of a non-existent problem. ISDS mechanisms work well to secure basic legal protections for a signatory state’s nationals abroad. The U.S. should firmly reject the EU’s proposal and insist that TTIP establish an ISDS."

Senator Warren Is Wrong (Again) About Trade

Investor-State Dispute Settlement (ISDS) Mechanisms: An Important Feature of High-Quality Trade Agreements, with James Roberts and Riddhi Dasgupta, Heritage Foundation Issue Brief #4351, February 20, "There are many reasons to doubt that a trade agreement between the U.S. and the EU will deliver the economic gains or advance the broader geopolitical objectives claimed for it. Like any treaty, a trade agreement can be fairly assessed only when a full and final text has been negotiated and presented to the public. Yet the concerns raised in principle about creation of an ISDS mechanism are unfounded. Far from being dangerous or undesirable, an appropriately structured ISDS is an essential part of trade-agreement enforcement and should be included in any U.S. trade agreement with the EU."