Gus Van Harten


Van Harten, Gus, Key Flaws in the European Commission’s Proposals for Foreign Investor Protection in TTIP (November 17, 2015). Osgoode Legal Studies Research Paper No. 16/2016. Available at SSRN: or

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Key flaws in the European Commission’s proposals for foreign investor protection in TTIP


In November 2015, the European Commission released a proposed text on foreign investor protection in the EU-US Transatlantic Trade and Investment Partnership (TTIP). In this paper, the researcher outlines key flaws in this proposal, including language buried in the text that significantly undermines the EC’s proposed provisions on the investment court system (ICS) and on the right to regulate.


For six reasons, the EC’s proposal for foreign investor protection in TTIP are flawed:

  1. ISDS lives on in the details of the EC’s proposal.
  2. There is still no evidence-based justification for including extraordinary protections for foreign investors in the TTIP and similar agreements.
  3. The proposal does not include any responsibilities for foreign investors that can be enforced in the same process as foreign investors’ elaborate rights and protections.
  4. The EC has buried poison pills inside the details of the “right to regulate”.
  5. The proposal remains disrespectful of domestic institutions, including domestic and European courts.
  6. The EC’s proposal for an international investment court lack credibility because the EC has proceeded first with a proposal for ISDS in the TTIP.

There is a viable alternative to this state of affairs. The EC could decline to pursue new treaties based on ISDS. It could work to establish an international judicial process that replaces ISDS in existing treaties. It could ensure that the law of foreign investment is balanced by permitting foreign investor rights and responsibilities to be enforced in the same process. It could ensure that this area of law is respectful of domestic institutions based on longstanding principles of international legal protection for all individuals. The EC could do all of these things, and it should.