In 2016, the German Association of Judges (DRB) Rejected the European Commission’s ICS Proposals Which Are Now in CETA
In its Opinion on the Commission’s ‘Investment Court’, the German Association of Judges (DRB) said it, “sees neither a legal basis nor a need for such a court”.
On the investment court system which the Commission is hoping to attach to the EU-Canada free trade and investment deal called CETA, the German Association of Judges (known by its German acronym, the DRB) said: “The DRB sees neither a legal basis nor a need for such a court.
In its damning indictment of the entire concept of a private special arbitration mechanism just for non-EU companies to sue the EU and the members states, outside our existing legal system, the DRB said: “The clearly implied assumption in the proposal for an International Investment Court that the courts of the EU Member States fail to grant foreign investors effective judicial protection, lacks factual basis. Should the negotiating partners have identified weaknesses in this area in individual EU Member States, these should be taken up with the national legislature and clearly defined.”
Back in 2016, the European Commission was negotiating the Transatlantic Trade and Investment Partnership (TTIP) with the USA. It wanted to get its proposals for a special ‘court’ for non-EU investors into that US deal. The TTIP talks’ eventual collapse began in February 2016 when the Obama administration refused to give EU corporations automatic access to bid for US federal and state government contracts and procurement. That Commission proposal for an ‘International Investment Court’ which the DRB rejects here, is the same one the Commission envisages for the CETA, which the German judges reject:
“The German Magistrates Association [DRB] rejects the proposal of the European Commission to establish an investment court within the framework of the Transatlantic Trade and Investment Partnership (TTIP).
Independence of ‘judges’ Questioned
On the ‘wages’ proposed for the investment court’s part-time arbitrators, the German judges said: “In addition, a term of office of six years with the possibility of a further term of office, a monthly base salary (“retainer fee”) of approximately €2,000 for the judges of first instance and €7,000 for those serving on the Appeal Tribunal, plus an expense allowance in the event of actual service (art. 9 para. 12 and art. 10 para. 12) cast doubt on whether the criteria for the technical and financial independence of judges of an international court are fulfilled.”
Reference: German Magistrates Association, “Opinion on the establishment of an investment tribunal in TTIP – the proposal from the European Commission on 16.09.2015 and 11.12.2015”, No. 04/16, February 2016. https://friendsoftheearth.eu/wp-content/uploads/2016/02/english_version_deutsche_richterbund_opinion_ics_feb2016.pdf
CHECK OUT THESE NEWS AND NGO REPORTS OF THE GERMAN JUDGES VIEW OF ICS
The BBC: ‘TTIP trade talks: German judges oppose new investor courts’ https://www.bbc.com/news/world-europe-35503885
Global Arbitration News, from global law firm, Baker McKenxie: ‘German Association of Judges on the TTIP Proposal of the European Commission’: https://globalarbitrationnews.com/german-association-judges-proposal-european-commission-introduction-investment-court-system-settle-investor-state-disputes-transatlantic-trade-investmen/
Investment Treaty News, from the International Institute for Sustainable Development: https://www.iisd.org/itn/en/2016/02/29/germanys-judges-and-public-prosecutors-reject-proposed-investment-court-system-in-ttip/
Global Justice Now!, the UK-based social justice organisation: https://www.globaljustice.org.uk/blog/2016/feb/3/if-youre-worried-about-our-sovereignty-read-german-judges-damning-indictment-ttip
‘The zombie ISDS: Rebranded as ICS, rights for corporations to sue states refuse to die’ – 17 EU NGOs Research Paper: https://corporateeurope.org/sites/default/files/attachments/the_zombie_isds_0.pdf
Detailed analysis of Commission ICS proposal by: Transport & Environment (T&E), European Consumer Organisation (BEUC), Transatlantic Consumer Dialogue (TACD), European Public Health Alliance (EPHA), European Heart Network (EHN), European Association for the Study of the Liver (EASL) and their legal experts (as part of the TTIP Advisory Group work): https://www.transportenvironment.org/sites/te/files/2015_11_12_ICS_Annex%201_fullanalysis.pdf
The academic view: ‘The CETA ICS and the Autonomy of the EU Legal Order in Opinion 1/17 – A Compass for the Future’, Published online by Cambridge University Press: 04 August 2020: https://www.cambridge.org/core/journals/cambridge-yearbook-of-european-legal-studies/article/ceta-ics-and-the-autonomy-of-the-eu-legal-order-in-opinion-117-a-compass-for-the-future/1CF9189B17A06B65CE2EFE9354505FAC#
Friends of the Earth, Europe: https://friendsoftheearth.eu/news/belgium-asks-european-court-on-legality-of-investment-protection-in-ceta/
Public Services International: Investment Court System (ICS): The Wolf In Sheep’s Clothing The Eu’s Great Corporate Privilege Rebrand: https://www.world-psi.org/sites/default/files/documents/research/en_wolfics_web.pdf
ATTAC Ireland (from 2016): Irish Upper House Rejects CETA – what does this mean?: https://www.arc2020.eu/irish-upper-house-rejects-ceta-what-does-this-mean/