Re-Organizing Europe’s Judicial Power through the Backdoor?

von Steffen Hindelang

European governments, businesses and civil society are engaged in a public debate on an investor-state dispute settlement (ISDS) mechanism in the Transatlantic Trade and Investment Partnership (TTIP) between the US and the EU. Recently, the Commission published the results of a massive public consultation on this matter accepting that there is indeed a need for further talks. The public, especially in countries like Germany, appears to take a strong interest in the question of how, and under which rules, Europe’s judicial power should be organised. This is actually good news in an otherwise increasingly heated political atmosphere.

Indeed, the question of who has the final say in a society in case of a conflict is one that has the power to move our political hearts. It touches upon the core of democracy. Certainly, this is not the first time dispute-settlement mechanisms in international treaties have attracted public debate. For example, the controversial reception of some rulings of the European Court of Human Rights, and the British government’s recent response, provide a telling illustration of the potential for conflict.

While ISDS is not about human rights but about the international judicial control of the exercise of sovereign powers by allowing investors to challenge governments outside domestic courts, it involves similar potential for dispute. Accordingly, whenever societies submit themselves to such mechanisms, it requires a debate about the means they want to permit to control their legislature and executive.

Despite the fact that a controversial public discourse, even opposition has been gathering momentum across Europe, the consolidated text of the Comprehensive Economic and Trade Agreement between Canada and the EU (CETA) – likely to be the EU’s model agreement for years to come – was released for ratification. Apparently, this gave the whole debate a very different twist ...

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