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EU-Canada (CETA), India and Singapore FTAs - EC negotiating mandate on investment (2011)

Text of the Mandates

Here’s the text of the negotiating mandates approved by the General Affairs Council for investment protection chapters in free trade agreements of the EU with Canada, India and Singapore

Annex 1

TITLE 3 A : Investment protection

Objective: In accordance with the principles and the objectives of the Union’s external action the respective provisions of the agreement shall provide for

- the highest possible level of legal protection and certainty for European investors in Canada/India/Singapore,
- for the promotion of the European standards of protection and seek to increase Europe’s attractiveness as a destination for foreign investment,
- for a level playing field for investors in Canada/India/Singapore and in the EU and shall be without prejudice to the right of the EU and the Member States to adopt and enforce, in accordance with their respective competences, measures necessary to pursue legitimate public policy objectives such as social, environmental, security, public health and safety in a non-discriminatory manner. The agreement shall respect the policies of the EU and its Member States for the promotion and protection of cultural diversity.

Its respective provisions shall be built upon the Member States’ experience and best practise regarding their bilateral investment agreements.

The aim is to include into the investment protection chapter of the agreement areas of mixed competence, such as portfolio investment, dispute settlement, property and expropriation aspects.

Scope: the investment protection title of the agreement shall cover a broad range of investors and their investments, intellectual property rights included, whether the investment is made before or after the entry into force of the agreement.

Standards of treatment: the negotiations shall aim to include in particular but not exclusively the following standards of treatment and rules:

- a) fair and equitable treatment, including a prohibition of unreasonable, arbitrary or discriminatory measures,
- b) unqualified national treatment
- c) unqualified most-favoured nation treatment,
- d) protection against direct and indirect expropriation, including the right to prompt, adequate and effective compensation
- e) full protection and security of investors and investments,
- f) other effective protection provisions, such as ?umbrella clause?
- g) free transfer of funds of capital and payments by investors
- h) rules concerning subrogation.

Enforcement: the agreement shall aim to provide for an effective investor-to state- dispute settlement mechanism. State-to-state dispute settlement will be included, but will not interfere with the right of investors to have recourse to the investor-to-state dispute settlement mechanism. It should provide for investors a wide range of arbitration fora as currently available under the Member States’ bilateral investment agreements (BIT’s).

Relationship with other parts of the agreement: the chapter on investment protection shall be a separate one, not linked to the market access commitments. These markets access commitments may include, when necessary, rules concerning performance requirements.

All the sub-federal or local entities and authorities (such as provinces or municipalities) must effectively comply with the investment protection chapter of this agreement.

 source: Seattle to Brussels Network