The European Commission Consultation on the Multilateral Investment Court

A Breach of the Fundamental Purpose of Public Participation in Decision-Making

Mechanisms that enable decision-makers to hear from the public are at the heart of democratic governance. One of the most common mechanisms is public consultation, which improves the transparency, coherency, and legitimacy of government decision-making.

The right of the people to take part in the conduct of public affairs is affirmed in the UN’s International Covenant on Civil and Political Rights. Further, the Aarhus Convention commits Parties to guarantee the right of public participation in decision-making in environmental matters.

Treaties governing the European Union require public consultation, which according to European Commission Guidelines “helps EU law making to be transparent, well-targeted and coherent.” The Commission’s guidelines also explain that consultation should not be considered “as a tool to validate given positions.”

In light of the EU’s professed commitment to public consultation and the fundamental purposes behind it, the European Commission’s consultation on the proposed Multilateral Investment Court, a newly proposed court for corporations to enforce their investment protection privileges, is particularly disappointing.

The consultation consisted primarily of multiple-choice questions, asking respondents to rate the importance of certain proposed procedural changes to the investor-state dispute system (ISDS) regime. At no point did the Commission ask the most fundamental questions about ISDS reform, such as whether the creation of a court for corporations to enforce special corporate privileges, like a “stable regulatory environment,” is consistent with equal access to justice, the guarantee of fundamental human rights, and protection of the environment.

In summarizing the results of the consultation, the Commission claimed that, “The consultation showed overall broad support for a multilateral reform of investment dispute settlement as described in this initiative.” This surprising conclusion raises considerable red flags.

Despite the constrained format of the consultation, we suspected that many respondents had found ways to express some of their fundamental concerns with ISDS in some of the few, small boxes allowing for narrative input. To investigate, we conducted a thorough analysis of the nearly 200 comments provided in the consultation.

We found that, contrary to the Commission’s assertion, an overwhelming majority of respondents – nearly two-thirds – expressed either outright opposition to the creation of this new court or belief that such a court should not be created without first addressing the fundamental problems with ISDS.

Far from supporting transparent and informed decision-making, the Commission consultation on the Multilateral Investment Court has only served to further undermine the legitimacy of this proposal. CIEL therefore recommends that EU Member States reject the mandate to negotiate this new court. To address the problems with ISDS, the European Union should renegotiate or cancel the existing agreements that include ISDS, and refrain from negotiating new agreements that guarantee excessive investor privileges.

By Layla Hughes
Senior Attorney

Originally posted November 21, 2017