Unless otherwise specified, all redactions in this document are justified under
Article 4.1(b) of Regulation 1049/2001.
Ref. Ares(2017)3714373 - 24/07/2017
Ref. Ares(2018)6087220 - 28/11/2018
EUROPEAN COMMISSION
Directorate-General for Trade
Directorate F - WTO, Legal Affairs and Trade in Goods
Dispute Settlement and Legal Aspects of Trade Policy
Brussels, 24 July 2017
F.2/
(2017) 2872234
Subject:
Meeting with the Belgian mutual health funds on the multilateral
investment court (16 May 2017)
Participants
(DG TRADE F2 – COM).
Belgian health
insurance funds – BEHIF),
(
Centre national de cooperation au
developpément – CNCD),
(Friends of the Earth Europe – FOEE);
(Client Earth – CE), as well as several members of the Belgian
Christian mutual.
Summary
The aim of this meeting was to exchange with the BEHIF's taskforce on trade agreements
on the multilateral investment court project. They had requested a special focus on health
services.
[Art. 4.2 1st indent]
In addition to the members of the BEHIF, several representatives of NGOs (FOEE,
CNCD, CE) had been invited as experts (and were among the most active participants
during the discussions).
COM gave a presentation on the multilateral investment court initiative including
background (milestones since Treaty of Lisbon, rationale of the initiative and possible
design) and state of play (EU internal and external work).
BEHIF raised a number of general questions on the COM's exploratory talks and the
interest shown by third countries. BEHIF also requested clarifications on the relationship
between the multilateral investment court and the ICS systems in bilateral agreements.
BEHIF also raised the issue of the right to regulate and potential concerns relating to
public health.
CE questioned the multilateral investment court project from various angles. CE referred
to the importance of preserving the role of domestic courts (exhaustion of domestic
remedies), the question of standing before the multilateral investment court (claims
against investors) and questions of admissibility (clean-hands doctrine, abuse of process,
etc.). CE also insisted on the issue of investors' obligations (including on human rights).
More broadly, CE questioned the need for any investment dispute resolution system
(especially to decide on disputes between developed countries). On the specific points
raised in the presentation, CE referred to the procedures for the appointment of judges,
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
their qualifications, and enforcement (arguing that awards should only be enforceable
within the territory of the respondent to give the respondent's domestic courts a say on
enforcement questions), and raised concerns that the multilateral investment court would
only bring cosmetic changes to the current ISDS system. Not many questions were raised
specifically on health services (COM invited BEHIF to meet relevant DG TRADE B1
colleagues for that), but there appeared to be some uncertainties about the distinction
between the pre- and post-establishment provisions in investment agreements (as well as
between positive and negative list approaches) and the application of the ICS.
COM replied to the questions and concerns raised, stressing in particular (i) that the
multilateral investment court would not create additional rights for investors but only
replace existing ISDS mechanism, (ii) that it was the most promising and probably only
realistic chance to reform the current ISDS system globally, and (iii) that the project
would not undermine the possibility of future talks on a multilateral reform of
substantive investment rules, nor parallel on-going multilateral initiatives in the field of
business and human rights (UN process).
Overall impression was that there is interest on the multilateral investment court project,
but more clarity may be needed before the BEHIF will have a clear position on the
matter. The overall tone of the discussion was constructive and, in general, BEHIF
appeared receptive to COM's explanations.
C.c.: D. Redonnet,
2
Electronically signed on 24/07/2017 11:20 (UTC+02) in accordance with article 4 2 (Validity of electronic documents) of Commission Decision 2004/563