[Ip-health] FT: EU pledges to protect NHS in US trade talks

Outterson, Kevin mko at bu.edu
Fri Jul 11 06:15:19 PDT 2014

I was unable to click through the FT paywall, but note the careful wording, focusing on hospitals. What about drug & device makers - will they have ISDS rights against NHS or NICE? Tobacco companies against a plain pack initiative, as in Australia?

Also - England's court system is surely one of the most trustworthy on the planet. Why would these governments insist that such disputes cannot be heard in English courts, and *must* go to less transparent ISDS?  ISDS was designed to protect companies from nationalization by governments not following the rule of law. That doesn't characterize any of the negotiating parties for this agreement.

Kevin Outterson
Professor, BU Law
Visiting Fellow, Chatham House
Editor in Chief, Journal of Law, Medicine & Ethics
Blogging health law at The Incidental Economist
Research papers at SSRN 

On Jul 11, 2014, at 4:53 AM, Thiru Balasubramaniam <thiru at keionline.org> wrote:

> http://www.ft.com/cms/s/0/eb1e1102-085e-11e4-9380-00144feab7de.html
> July 10, 2014 7:46 pm
> EU pledges to protect NHS in US trade talks
> By Shawn Donnan, World Trade Editor
> Britain’s National Health Service
> <http://www.ft.com/topics/organisations/NHS> and other European public
> health programmes are set to be carved out of a proposed transatlantic
> trade deal to protect them from legal challenges by US corporations,
> according to the EU’s top negotiator.
> The move is intended to address criticism from opponents of the
> proposed Transatlantic
> Trade and Investment Partnership
> <http://www.ft.com/intl/cms/s/0/a290b1d2-ed66-11e3-8a1e-00144feabdc0.html>,
> or TTIP, who have argued that under the proposed deal the NHS’s public
> status could be threatened. Critics have also raised the possibility of US
> pharmaceutical and healthcare companies
> <http://www.ft.com/companies/pharmaceuticals> using special arbitration
> panels to sue the British government over decisions related to the NHS.
> But in a private letter sent to British parliamentarians this week and
> obtained by the Financial Times, Ignacio Garcia Bercero, the EU’s chief
> negotiator, said Brussels was determined to protect publicly funded health
> services in Europe from any potential challenges.
> “There is no reason to fear either for the NHS as it stands today, or for
> changes to the NHS in future, as a result of TTIP,” he wrote in the July 8
> letter addressed to John Healey, the Labour MP who chairs the All-Party
> Parliamentary Group on TTIP.
> The EU intended to make sure that any trade deal struck with the US would
> allow the “full policy space” for publicly funded health services such as
> hospitals “by not including them in the scope of commitments”, he wrote.
> “This policy space means that member states do not need to provide access
> to their markets for foreign companies and, even if they do give access,
> they can discriminate between foreign companies and EU/domestic ones,” Mr
> Garcia Bercero added.
> Any decisions regarding the NHS or moves to terminate contracts with US
> suppliers would also be safe from challenges under a special dispute
> resolution system meant to protect foreign investors, the negotiator said.
> A proposed investor-state dispute settlement, or ISDS, mechanism has been
> one of the main focus points for critics of the EU-US deal, and a public
> consultation by the European Commission has already drawn more than 100,000
> submissions from across Europe. Critics charge that such a mechanism, which
> is backed by business and has been a feature of investment treaties for
> decades, would open the door for EU governments and their laws to be
> challenged by US companies before special panels.
> But in his letter Mr Garcia Bercero said there was no evidence to show that
> would be the case. The UK’s 94 existing bilateral investment treaties, the
> vast majority of which contain similar dispute settlement provisions, had
> not affected government decisions over the past two decades.
> “We can already state with confidence that any ISDS provisions in TTIP
> could have no impact on the UK’s sovereign right to make changes to the
> NHS,” he wrote.
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