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Joint Interpretative Declaration on CETA: unpacking the “clarifications” on investment protection

S2B | 11 October 2016

Joint Interpretative Declaration on CETA: unpacking the “clarifications” on investment protection

by TNI, Friends of the Earth Europe, Power Shift, Both Ends, Aitec

The investment protection chapter included in the Comprehensive Economic and Trade Agreement (CETA) enshrines expansive and ill-defined provisions that can be used by corporations to launch arbitration disputes. It does not prevent investor attacks against regulations protecting the public interest and the environment, and is therefore a threat to democratic decision-making in Europe and Canada. Finally, the Investment Court System (ICS) proposal, while incorporating some procedural changes compared to the Investor-State Dispute Settlement (ISDS) Mechanism that it replaced, does not solve the problem that arbitrators have a financial incentive to interpret the law in favour of investors.

The Joint Interpretative Declaration on the Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union (sent on 10th October to all EU Member States) does not change or clarify any of the specific provisions in CETA’s text. Instead, it is a reaffirmation that investors can bypass the domestic court systems and will enjoy ample rights without any obligations.

Steven Shrybman from the law firm Goldblatt Partners LLP, has argued this Declaration would have no legal impact on the actual text of the agreement because it can not be considered as an “interpretative declaration” under international law. Furthermore, he concluded: “In our opinion, no party could credibly present such a document as an ’interpretative declaration’ to a Tribunal called upon to determine an investor rights dispute. Moreover, in the unlikely event that should occur, a Tribunal that gave it any consideration would risk its own credibility.”

Read here the passage-by-passage analysis of the Joint Interpretative Declaration (pdf - 676 KB)

 source: S2B