During Tuesday's plenary session GUE/NGL deputy Helmut Scholz addressed De Gucht, saying, "You carried out a public consultation on the inclusion of an investor state dispute settlement (ISDS) clause which received over 115,000 responses.

"Citizens don't want ISDS; neither in TTIP nor in the agreement with Canada," the German deputy argued.

The Socialists were proud to be at the birth of TTIP, and we do not want to be its assassins, and I want to tell the Commission clearly now, though, that if we have to be, we will be. And that's why we want the Commission to listen carefully to our concerns.

German Socialist Bernd Lange, who said procedural rules would stop [right-wing MEP] Le Pen grandstanding or using sessions for publicity, also warned that an investor-state dispute settlement mechanism should be dropped from TTIP. If it wasn't, he said, the Parliament’s next resolution on TTIP could be negative.

As Commission President, I will also be very clear that I will not sacrifice Europe's safety, health, social and data protection standards or our cultural diversity on the altar of free trade. Notably, the safety of the food we eat and the protection of Europeans' personal data will be non-negotiable for me as Commission President. Nor will I accept that the jurisdiction of courts in the EU Member States is limited by special regimes for investor disputes. The rule of law and the principle of equality before the law must also apply in this context.

The Evo Morales government rejected the Investor-State Dispute Settlement mechanism from the outset. This was reflected in the country’s withdrawal from ICSID -- the most widely used Investor-State Dispute Settlement forum -- in May 2007. In addition, the new [Bolivian] Constitution prohibits the state from settling investment related disputes with foreign investors in international tribunals.

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one of the most important provisions of the new Constitution in this regard is to denounce and renegotiate all international treaties that are contrary to the constitutional text, that is to say, the BITs, which is ultimately where the power lies for corporations to do whatever they want in the countries in which they operate. The BIT's are where the rules of the game between companies and states are established. They are also the reason why Bolivia, despite regaining sovereignty from corporations and shielding itself from this system, could still be liable to further lawsuits in international tribunals similar to ICSID, which establish their jurisdiction in such treaties.

When we asked about the reaction of other countries, [Walter Clarems Endara Vera, Deputy Minister for Trade and Integration of Bolivia] said that obviously there was concern on the part of European countries and the United States, which are among those that invest most overseas, and with which Bolivia signed most of it’s BITs. However, he also said that "in all of these cases there has not been a negative response", and that, "in conclusion, our understanding is now that we do not have bilateral investment agreements."

Deputy Minister Endara also noted that "...many countries are interested in signing a new investment agreement with Bolivia."

When we asked the Deputy Minister Endara why he believed that these countries were being so accommodating, his response was that "... chickens have now come home to roost. Countries promoting BIT's are now also being sued in forums such as ICSID as well as other tribunals, sometimes by their own investors. Unfortunately, the economic crisis in Europe has led some countries to take measures affecting foreign investments and they are now being sued. This means that the conversation with some European countries is now different. We can now talk as equals because they are suffering the same problems we have suffered ... I mean, we can now see some of the biggest defenders of the investor-state dispute settlement mechanism defending their own countries against these cases. The situation really has changed."

In the Bolivian context, it is important to note that, unlike at the time of the first case with Aguas del Tunari, the country now has a legal and constitutional framework, as well as public institutions and a clear policy, to address these Bilateral Investment Treaties and the system of international arbitration that corporations are using to undermine the actions of sovereign countries.

Are there any other issues related to the topics covered by the questionnaire that you would like to address?

First of all I would like to express my deep concerns with this highly complicated and technical questionnaire. If a consultation asks for the contribution of civil society/the public, then an honest attempt should be made whereby non experts should be able enabled to contribute. This is definitely not the case with this consultation, especially because, up until this question, there has been no possibility to state that I do not want any investor-state dispute settlements at all -- in TTIP, or in any other trade agreement. Furthermore, technical obstacles that prevent me from only filling in one part of the form, or to respond through email or fax fundamentally alter the "public" character of this consultation.

There are serious flaws in this consultation process. First: it fails to give European communities the possibility of responding to the proposed TTIP in its entirety. The EU should provide this opportunity, particularly in light of the controversy regarding issues such as the secrecy surrounding the negotiations and the undermining of basic democratic processes, regulatory harmonisation and the impact on standards, the impact on jobs and on the economies of non-Party countries.

Second, the consultation is written in such a technical (and occasionally obscure) language that it excludes everyone but investment law experts. As most of these are arbitration practitioners, the questionnaire in effect invites ISDS-friendly responses by design.

Third, the consultation is not in fact a consultation on the TTIP text but on a CETA text that was valid in March but has since progressed further in the CETA negotiations. In addition, the Commission says that it wants to build on CETA but also refer back to existing treaty practice. It is therefore a consultation on a non-existent text; given the significance of the details, this renders the consultation all but useless.

Fourth, the consultation starts from the assumption that ISDS should be in the agreement. This is despite the fact that in the negotiating mandate it states that "the inclusion of investment protection and investor-to-state dispute settlement (ISDS) will depend on whether a satisfactory solution, meeting the EU interests concerning the issues covered by paragraph 23 is achieved".

many governments are jumping on to the bandwagon of investment treaties -- which Kahale described as "weapons of legal destruction" -- often without scrutinising the serious implications and significance of the obligations contained therein.

Governments also often overlook the changing nature of investment treaties -- which are expanding in breadth and ambiguity -- in favour of investors with the corresponding effect that more and more types of State acts, gestures or Statements are becoming liable to challenge and compensation by foreign investors, said Kahale.

The TiSA negotiations will cover all services sectors. In addition to improved market access commitments, the negotiations also provide an opportunity to develop new disciplines (or trade rules) in areas where there has been significant developments since the WTO Uruguay Round negotiations. There negotiations will cover financial services; ICT services (including telecommunications and e-commerce); professional services; maritime transport services; air transport services, competitive delivery services; energy services; temporary entry of business persons; government procurement; and new rules on domestic regulation to ensure regulatory settings do not operate as a barrier to trade in services.

the possible future agreement would for the time being fall short of the participation of some of the leading emerging economies, notably Brazil, China, India and the ASEAN countries. It is not desirable that all those countries would reap the benefits of the possible future agreement without in turn having to contribute to it and to be bound by its rules.

The EU will include provisions to guarantee that hearings are open and that all documents are available to the public. In ISDS cases brought under TTIP, all documents will be publicly available (subject only to the protection of confidential information and business secrets) and hearings will be open to the public. Interested parties from civil society will be able to file submissions to make their views and arguments known to the ISDS tribunal.

Over the last 50 years, nearly 3,200 trade and investment agreements among 180 countries have included investment provisions, and the vast majority of these agreements have included some form of ISDS. The United States entered its first bilateral investment treaty (BIT) in 1982, and is party to 50 agreements currently in force with ISDS provisions.

1. Provide basic legal protections for American companies abroad that are based on the same assurances the United States provides at home.

Investment protections are intended to prevent discrimination, repudiation of contracts, and expropriation of property without due process of law and appropriate compensation. These are the same kinds of protections that are included in U.S. law. But not all governments protect basic rights at the same level as the United States. Investment protections are intended to address that fact.

2. Protect the right of governments to regulate in the public interest.

The United States wouldn't negotiate away its right to regulate in the best interest of its citizens, and we don’t ask other countries to do so either. Our investment rules preserve the right to regulate to protect public health and safety, the financial sector, the environment, and any other area where governments seek to regulate. U.S. trade agreements do not require countries to lower their levels of regulation.

3. Do not impinge on the ability of federal, state, and local governments to maintain (or adopt) any measure that they deem necessary.

Under our investment provisions, no government can be compelled to change its laws or regulations, even in cases where a private party has a legitimate claim that its basic rights are being violated and it is entitled to compensation.

Carla Hills, the US Trade Representative who oversaw the NAFTA negotiations for Bush I and now heads her own trade-consulting firm, was among the very first to play this game of bump-and-run intimidation. Her corporate clients include big tobacco--R.J. Reynolds and Philip Morris. Sixteen months after leaving office, Hills dispatched Julius Katz, her former chief deputy at USTR, to warn Ottawa to back off its proposed law to require plain packaging for cigarettes. If it didn't, Katz said, Canada would have to compensate his clients under NAFTA and the new legal doctrine he and Hills had helped create [ISDS]. "No US multinational tobacco manufacturer or its lobbyists are going to dictate health policy in this country," the Canadian health minister vowed. Canada backed off, nevertheless.

A former government official in Ottawa told me: "I've seen the letters from the New York and DC law firms coming up to the Canadian government on virtually every new environmental regulation and proposition in the last five years. They involved dry-cleaning chemicals, pharmaceuticals, pesticides, patent law. Virtually all of the new initiatives were targeted and most of them never saw the light of day."

4. Do not expose state or local governments to new liabilities.

Under our Constitution and laws, investors frequently exercise their rights in U.S. courts. For example, in recent years, the U.S. government has defended hundreds of cases in U.S. courts under the Constitution's "takings clause," which requires compensation for expropriations. State and local governments have likewise defended many such claims. By contrast, the United States has only been sued 17 times under any U.S. investment agreement and has never once lost a case.

5. Provide no legal basis to challenge laws just because they hurt a company' profits.

Our investment rules do not in any way guarantee a firm’s rights to any profits or to its projected financial outcomes.

6. Include strong safeguards to deter frivolous challenges to legitimate public interest measures.

The United States has proposed additional safeguards that include stricter definitions than are in most investment agreements of what is required for successful claims, as well as mechanisms for expedited review and dismissal of frivolous claims, payment of attorneys' fees, consolidation of duplicative cases, and transparency.

7. Ensure fair, unbiased, and transparent legal processes.

The United States is committed to ensuring the highest levels of transparency in all investor-state proceedings.

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8. Ensure independent and impartial arbitration.

Investor-state arbitration is designed to provide a fair, neutral platform to resolve disputes.

Concerns with the current ISDS system relate, among others things, to a perceived deficit of legitimacy and transparency; contradictions between arbitral awards; difficulties in correcting erroneous arbitral decisions; questions about the independence and impartiality of arbitrators, and concerns relating to the costs and time of arbitral procedures.

South Korea plans to hold talks with the United States to rework the investor-state dispute (ISD) clause in their two-year-old free trade pact that has long been cited by critics as being unfair, a government source said Sunday.

To receive parliamentary approval, Seoul forwarded a proposal to lawmakers that promised a "reevaluation" of the ISD clause down the line.

According to the Netherlands Embassy in Jakarta, Indonesia has informed the Netherlands that it has decided to terminate the Bilateral Investment Treaty between the two nations from 1 July 2015. The Embassy also states that "the Indonesian Government has mentioned it intends to terminate all of its 67 bilateral investment treaties".

it would not be surprising if the Churchill Mining Plc v Indonesia cases (ICSID Cases ARB/12/14 and 12/40) have prompted more sweeping action by the Indonesian Government. Churchill and Planet Mining Pty began arbitration against the Indonesian government in May 2012 at ICSID in Washington. On 24 February 2014 the ICSID Tribunal rejected Indonesia's jurisdictional challenges leaving Churchill free to proceed with a claim for damages of not less than US$1.05bn, excluding interest. This decision has caused outrage in Indonesia.

There are currently three South Korean mining companies in NSW with significant interests in huge and environmentally controversial coal projects.

Over the past three years environmental campaigners in [New South Wales] have achieved some significant wins against coal seam gas mining companies including in the Northern Rivers, at Fullerton Cove and in the Illawarra and Sydney.

The O'Farrell government has also introduced some legislation, such as the No Go Zones for Coal Seam Gas (CSG) mining in Sydney, and a moratorium on CSG in Sydney Drinking Water Catchments. The [Environment Protection Authority] has also fined, albeit extremely modestly, a number of mining companies for pollution breaches.

These hard fought wins are all in jeopardy if the foreign-owned companies can sue for loss of financial return.

Such "exclusions" in the Peru-US Free Trade Agreement and the US-Central America Free Trade Agreement didn't stop the Renco lead mining company from suing the Peruvian government when they were required to clean up their lead pollution, or the Pacific Rim company from suing the El Salvador government because it refused a mining license for environmental reasons. Investors have pursued cases in other countries by claiming the process of developing the law did not include "fair and equitable" treatment for them.