Answer given by Mr De Gucht on behalf of the Commission
The factsheet released by the Commission on 3rd October 2013 was not directed to the negotiations for a Transatlantic Trade and Investment Partnership, but to all investment protection and investor-state dispute settlements (ISDS) negotiatons currently ongoing between the EU and third countries.
As regards Member States, it should be recalled that they are party to 1400 such agreements, providing for investment protection and ISDS. Thus Member States have accepted to make themselves subject to investment protection and investor state dispute settlement.
In the US there have been occasions where investors found reasons to complain. The Commission can cite two well known examples of denial of justice, which were eventually defeated in investment arbitration for jurisdictional grounds, Loewen v United States (an investor involved in a contractual dispute worth USD 5m was ordered to pay damages of USD 500m before he could appeal) and Mondev v United States (an investor could not sue the Boston Redevelopment Authority because of an immunity clause). An example of expropriation without compensation is the Havana Club case: Pernod Ricard, a French investor, has been prevented from using one of its trademarks for over 10 years. The EU has also successfully challenged this in a WTO dispute settlement case; however, the US has yet to bring itself into compliance with the WTO. One of the first WTO cases brought by the EU against the US (the Helms-Burton) case, concerned restrictions placed by the US on investors from the EU, on account of investments they had made in Cuba. There are a number of other examples of protectionist actions by US authorities which may impact foreign investors.