Investor-state dispute settlement i TTIP - Hotas avtalsparternas fria lagstiftningskompetens av frihandelsavtalet med USA?

Sammanfattning: This essay sets out to investigate whether the Transatlantic Trade and Investment Partnership (TTIP for short) might cause what its critics call a ”regulatory chill”. The TTIP is a free trade agreement currently being negotiated between the EU and the US. The TTIP will almost certainly, like most FTAs, contain provisions on investment protection and dispute settlement. The instrument most commonly employed in the field of international investment disputes is ISDS – investor-state dispute settlement. This form of dispute settlement allows investors to bypass national courts and sue sovereign nations in arbitral tribunals should they breach an obligation undertaken in an investment treaty. Critics fear that states bound by investment protection provisions, particularly ISDS, may cease to enact laws benefitting its citizens when a powerful foreign investor’s interests might be endangered. Australia was recently sued by a tobacco company over its enactment of a plain packaging law. The case exemplifies the critics’ fears. The paper concludes that the TTIP almost certainly will cause a regulatory chill. It is impossible to say to which degree as that will depend on a multitude of factors, least of which being the agreement’s formulation of the investment protection chapter. As it is still being negotiated, very little information is available. However, due to recent developments in the field of ISDS steering towards increased transparency I do not believe that the regulatory chill will be particularly severe.