29 Amendments of Saskia BRICMONT related to 2021/2176(INI)
Amendment 15 #
Motion for a resolution
Recital E a (new)
Recital E a (new)
Ea. whereas the EU taxonomy aims at facilitating the shift of investments from unsustainable economic activities to investment in activities that are needed to achieve environmental sustainability, and more specifically climate neutrality in the next 30 years;
Amendment 19 #
Motion for a resolution
Recital G a (new)
Recital G a (new)
Ga. whereas most investment treaties do not specify how the notions of ‘full reparation’ and ‘fair market value’ of an investment are to be ascertained; whereas panels have in the last decade predominantly interpreted such notions by using ‘forward-looking’ valuation techniques based on discounted cash flows methods (DCF) that calculate and aggregate expected future net income streams adjusted to the specific risks attached to the investment project; whereas the use of DCF methods has led in many well-documented cases to vastly larger amounts of compensation than the aggregate amounts of expenditure actually incurred by investors in host countries (asset-based or ‘backward- looking’ valuation methods);
Amendment 24 #
Motion for a resolution
Recital G b (new)
Recital G b (new)
Gb. whereas the increasing recourse by investors to third parties to finance their litigation in exchange for a return or other financial interest in the outcome of a dispute (third-party funding) has exacerbated the imbalances underpinning compensation practices in litigation by further reducing the risks for investors of pursuing a claim, and thereby adding incentives to increase the number of claims; points out that third-party funding may increase the bargaining power of claimants to the detriment of States with limited resources, and weaker regulatory frameworks;
Amendment 35 #
Motion for a resolution
Paragraph 2 a (new)
Paragraph 2 a (new)
2a. Emphasises the need to ensure that the Joint Statement Initiative on Investment Facilitation abides to the rules of Articles IX and X of the WTO agreement, which require consensus and overall transparency;
Amendment 36 #
Motion for a resolution
Paragraph 2 b (new)
Paragraph 2 b (new)
2b. Underlines the importance of an overall EU approach as regards investment facilitation at both bilateral and multilateral levels with an overarching focus on cooperation, including capacity building and technical assistance, notably as regards the support of digitalisation in developing countries; underlines also the need to avoid creating administrative burden for LDCs;
Amendment 37 #
Motion for a resolution
Paragraph 2 c (new)
Paragraph 2 c (new)
2c. Points out that investment facilitation provisions at both IIAs and WTO level essentially focus on creating obligations for public authorities in ‘host countries’, but not for ‘home countries’ or for their undertakings; emphasises in that respect the need for integrating binding provisions as regards corporate social responsibility (CSR), human rights and environmental due diligence, as well as anti-corruption safeguards in investment facilitation frameworks; underlines also the need to integrate specific provisions for facilitating sustainable investments in host countries, including monitoring mechanisms on the activities supported by FDI flows;
Amendment 38 #
Motion for a resolution
Paragraph 2 d (new)
Paragraph 2 d (new)
2d. Points out to the need to exclude investment facilitation disciplines from dispute settlement provisions of IIAs, including from investor-state disputes;
Amendment 39 #
Motion for a resolution
Paragraph 2 e (new)
Paragraph 2 e (new)
2e. Welcomes the entry into force of the Foreign Direct Investment (FDI) screening Regulation in 2019; underlines the importance of such mechanism as a step for better monitoring FDI contribution to Europe's strategic interests; calls for further strengthening the instrument in the context of its forthcoming review process so as to have more granular data on whether inward FDI flows support sustainable economic activities and greenfield investments; is of the opinion that outward FDI flows should also be monitored, so as to better identify the activities supported by these flows;
Amendment 40 #
Motion for a resolution
Paragraph 2 f (new)
Paragraph 2 f (new)
2f. Notes that some recent IIAs have a strong focus on market access and investment liberalisation; stresses that while European investors can benefit from these agreements, investment liberalisation can also affect the ability of States and third countries to regulate foreign investments in their jurisdiction; urges the Commission to strictly protect EU and Member State policy space on energy, agriculture, fisheries, audio- visual, telecommunication and digital issues, as well as public services, when liberalising investments; stresses that liberalising investments without safeguards can lead to an increase in speculative short-term investments that can increase economic instability, especially in developing countries;
Amendment 47 #
Motion for a resolution
Paragraph 3 a (new)
Paragraph 3 a (new)
3a. Underlines that the positive impact of signing investment protection treaties as regards the attraction of foreign investments is unproven in scientific literature;
Amendment 66 #
Motion for a resolution
Paragraph 5
Paragraph 5
5. UStresses that global efforts to combat climate change will require a rapid transition to renewable energy and fast government action to reduce reliance on fossil fuels; underlines that such action will create stranded assets; strongly believes that taxpayers shall not pay for these stranded assets via damages awarded by investment tribunals; urges the Commission to exclude investments in fossil fuels or any other activities that pose significant harm to the environment and human rights from treaty protections, in particular investor-state arbitration mechanisms;
Amendment 70 #
Motion for a resolution
Paragraph 6
Paragraph 6
6. Points out that even in the absence of legal proceedings, the explicit or implicit threat of recourse to investment arbitration can enhance the position of investors in negotiations with states (the ‘chilling effect’); is concerned that as a result, policy decision making might be delayed, watered down, or that more public funds may be spent on compensating the fossil fuel sector than would otherwise be the case, making it more costly and thus more difficult for States to undertake energy transition measures, representing an overall subsidy provided by taxpayers to the fossil fuel sector; stresses that while the right to regulate of States is acknowledged, it does not prevent them from having to comply with obligations established in IIAs, nor does it preclude compensation claims following the exercising of that right;
Amendment 74 #
Motion for a resolution
Paragraph 6 a (new)
Paragraph 6 a (new)
6a. Points out that investments, especially in mining, oil and gas extraction, logging, tourism and agribusiness operations can have far- reaching impacts on local communities, including Indigenous Peoples; notes that in numerous investor–state arbitrations, businesses have challenged actions that States claimed to have taken to address local concerns or unrest about a project’s impact;
Amendment 85 #
Motion for a resolution
Paragraph 8
Paragraph 8
8. Is concerned that recent EU IIAs still contain broad protection standards which can be used to challenge legitimate public policies; asks the Commission to only allow protection against discrimination, direct expropriation and the gross denial of justice, and to ensure that foreign investors are not accorded superior rights to those enjoyed by domestic investors they directly compete with;
Amendment 87 #
Motion for a resolution
Paragraph 9
Paragraph 9
9. Underlines the fact that EU IIAs negotiated after 2009 still include sunset clauses which prevent easy termination; points out that Member States and the other contracting parties can agree to neutralise sunset clauses; calls on the EU to limit the sunset clause to one year maximum in investment agreements currently being negotiated, as well as in future agreements, and to modernise existing agreements accordingly;
Amendment 98 #
Motion for a resolution
Paragraph 11 a (new)
Paragraph 11 a (new)
11a. Underlines that the Discounted Cash Flows (DCF) methodologies generally used for calculating compensation does not represent a reliable valuation method for investments with long lifespans or with uncertain future income streams, neither for investments that are subject to risks that are difficult or impossible to quantify - such as geopolitical risks, vulnerability to technological obsolescence, nor for determining compensation for early or planning stage projects;
Amendment 99 #
Motion for a resolution
Paragraph 11 b (new)
Paragraph 11 b (new)
11b. Underlines that the way the jurisprudence on compensation and damages has evolved, and thereby, the use of valuation methods, represents a significant departure from well- established compensation principles and practices in national and international legal systems that provide for significantly more constrained margins of discretion for adjudication; points out that such departure confers in practice greater rights to foreign investors than to domestic ones; calls for compensation to be capped at the amount of eligible expenditures actually incurred by the investors; underlines that balancing approaches should, as appropriate, determine compensation below such cap, so as to consider contextual elements such as non-compliance with undertakings of their legal or contractual obligations or commitments;
Amendment 102 #
Motion for a resolution
Paragraph 12
Paragraph 12
12. Stresses that the increasing recourse by investors to third parties to finance their litigation in exchange for a return in the outcome of an award (third-party funding) is adding incentives to increase the number of claims; invites the Commission to support the prohibition or strong restrictions of third-party funding for investor-state disputes;
Amendment 117 #
Motion for a resolution
Paragraph 14 a (new)
Paragraph 14 a (new)
14a. Calls on the Commission to upgrade its investment protection model adopted in 2015 in order to guarantee full compatibility with the European Green Deal objectives; and to provide clear guidelines on issues such as the limitation of substantive standards, including the definition of ‘investor’ and ‘investment’, as well as on provisions governing compensation, including a cap on compensation at the amount of eligible expenditures incurred by the investors; urges the Commission to use this updated model as a basis for authorisation of new Member States BITs;
Amendment 119 #
Motion for a resolution
Paragraph 14 b (new)
Paragraph 14 b (new)
14b. Notes that the Investment Court System (ICS) still constitutes international arbitration; notes that unlike in national courts, arbitrators on the ICS roster would merely interpret with wide discretion the rights and substantive provisions enshrined in international investment agreements, without balancing such provisions with relevant public interest laws which were decided democratically; notes that only foreign investors would be able to bring cases under the ICS system;
Amendment 124 #
Motion for a resolution
Paragraph 15
Paragraph 15
15. Points out that the ECT is the most litigated investment agreement in the world today; welcomes efforts to modernise the ECT and the EU’s position to exclude protection for most fossil fuel investments; notes that investments considered ‘significantly harmful’ under the EU taxonomy would remain protected according to the EU’s position; underlines that amending the ECT requires unanimity of all contracting parties voting at the annual conference; regrets that the European Parliament does not get any access to the negotiating texts of the ECT modernisation negotiations;
Amendment 127 #
Motion for a resolution
Paragraph 15 a (new)
Paragraph 15 a (new)
15a. Is concerned that despite the fact that the EU seeks to exclude some fossil fuels projects from protection, investments considered as “significantly harmful” under the EU taxonomy would stay protected according to the EU position as regards the ECT modernisation process;
Amendment 128 #
Motion for a resolution
Paragraph 15 b (new)
Paragraph 15 b (new)
15b. Welcomes the fact that Italy notified its decision to withdraw from the Energy Charter Treaty as of 1 January 2015; notes that countries that have ratified or acceded to the ECT may terminate their membership 12 months after notification of withdrawal; regrets that investments realised before the exit date are still protected for 20 years, but welcomes that all new investments immediately stop being protected;
Amendment 138 #
Motion for a resolution
Paragraph 17
Paragraph 17
17. Welcomes the Court of Justice’s clarification that ISDS provisions in the ECT are not applicable in the case of intra- EU disputes; notes with concern that the Achmea ruling did not deter arbitration tribunals from continuing to hear intra-EU investment disputes; that at least 73 intra EU cases are currently ongoing, including more than 40 intra-EU ECT based investment arbitration cases; notes with great concern that the Achmea ruling did not deter arbitration tribunals from continuing to hear intra-EU investment disputes; notes that the Commission is not in a position to amend the ECT to carve- out the intra-EU application of the ISDS provision; calls on the Commission and the Council not to let arbitration proceedings circumvent the jurisdiction of the CJEU and its case-law which forms an integral part of EU law;
Amendment 140 #
Motion for a resolution
Paragraph 17 a (new)
Paragraph 17 a (new)
17a. Points out that while the enforcement of possible awards in these cases will be difficult in courts of the European Union, cases under ICSID rules can still be enforced in the courts of third states around the world; notes that these courts can order sovereign assets of EU Member States to be seized;
Amendment 142 #
Motion for a resolution
Paragraph 17 b (new)
Paragraph 17 b (new)
17b. Calls on the Commission not to nominate arbitrators who have ignored judgments of the European Court of Justice to FTA or ICS rosters of arbitrators;
Amendment 145 #
Motion for a resolution
Paragraph 19
Paragraph 19
19. Notes that in the context of the UNCITRAL Working Group III discussions, the EU and its Member States are pursuing the establishment of a standing mechanism to resolve investment disputes: the multilateral investment court; stresses, however, that this proposal does not cover the modernisation of substantive protection standards; notes that unlike in national courts, judges from the MIC would merely interpret with a margin of discretion the substantive provisions and rights enshrined in international investment agreements, without balancing these provisions with relevant public interest laws which were decided democratically; notes that only foreign investors would be able to bring cases to the MIC;
Amendment 152 #
Motion for a resolution
Paragraph 20 a (new)
Paragraph 20 a (new)
20a. Stresses that the ratification of pending EU trade and investment agreements will replace old Bilateral Investment treaties for some Member States, but will also bind a significant number of Member States that do not have existing Bilateral Investment Treaty with the partner countries, therefore increasing the risk of investment cases against EU Member States; emphasises that terminating existing outdated BITs enables Member States to regain policy space without expanding the system; is worried that in the case of EU trade agreements containing an integrated investment chapter with dispute settlement, such an investment chapter cannot be modernised or terminated without reopening the whole agreement;
Amendment 157 #
Motion for a resolution
Paragraph 22
Paragraph 22
22. Urges the Commission to develop an EU foreign investment strategy to incentivise and protect sustainable investments, without relying on investor- state adjudication, as well as to update its investment protection model adopted in 2015 in line with the requests of this resolution so as to guide the negotiations of new or updated EU agreements;