International

In the wake of the condemnation of the proposed Investor State Dispute Settlement (ISDS) system by German and European judges’ associations, the SP is eager to hear the opinions of the Netherlands’ own Council for the Administration of Justice (Nederlandse Raad voor de Rechtspraak) regarding the controversial arbitration system and its successor, the Investment Court System (ICS). The SP has sent a written request to the Council to that effect.

SP Euro-MP Anne-Marie Mineur wants to know how Dutch judges see the arbitration system. “We have been saying for some time that this special dispute settlement system for foreign investors will undermine our system of justice, and we certainly weren’t the only ones saying this. A public consultation on the subject in April of 2014 brought 150,000 reactions, of which 97% were extremely critical. Improvements implemented by trade minister Lilianne Ploumen and European Commissioner Cecilia Malmström have not removed the fundamental objections to the system. Recently the European Association of Judges made a number of sharp comments on this system, and now the German Union of Judges, the Deutsche Richterbund, has also made strong criticisms. I also want to know how the Dutch Council for the Administration of Justice assesses the consequences of the ICS.”

On 2nd February the German Judges’ Association published a devastating opinion statement on the ISDS, which forms part of the various trade treaties being prepared by the European Union, the TTIP (with the US), and CETA (with Canada) being the best known of these. According to this judgment the establishment of a special court for a single social group – in this case foreign investors – is ‘the wrong way’ to guarantee legal certainty. The Association found in addition that the establishment of a permanent court of arbitration was unnecessary when all the member states had available to them a system of justice accessible to all. In such a special court, the independence of the arbitrators would not be guaranteed. Finally, the Association raised questions regarding the competence of the European Union to introduce the proposed system of law because of the limitation it would impose on the legislative power of the member states, as well as representing a fundamental intervention in existing European systems of law.