OFFICIAL – SENSITIVE (UK eyes only)
positions in our model BIT; and consultations in advance of negotiations. We have formal advisory committees where USTR appoints individual representatives from business and civil society. These committees have the ability to read the text and advise on positions. USTR are required through TPA to engage with members of Congress and their staff. We are also required to publish our negotiating objectives before negotiations open, and to update them to reflect changes in the US positions. There is also a great deal of engagement with different interest groups and firms in advance of negotiations, in developing our model BIT and on individual investment disputes. Though this is limited by the need to keep negotiations confidential. LF – Do these groups have a sufficient understanding of the policy to provide useful information? LM – The challenge in general is not so much that stakeholders are not well informed, so much as each group wants everything - firms want full market access without limitations, civil society want no ISDS, etc. Groups are very reluctant to prioritise, which creates a very challenging dynamic. In unsuccessful negotiations you never work out where groups want to be, and everyone ends up hating the published text. 6. Conclusions LM – There is value in including ISDS in an investment chapter. The causality is not provable, but even if disputes do not proceed to claims, the presence of a backstop is invaluable in resolving things – including the possibility of Posts reminding a host state of their obligations. LF – This was a useful conversation. Clearly there is a lot of detailed conversation we will need to have as we move forward. We are still in policy development mode and though we have previous treaty practice, we are yet to come to a view on a new model. Key Actions and Next Steps: •
Both parties to consider if an intersessional discussion before the next TIWG would be appropriate.
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UK to continue to update US at further TIWGs as its investment policy develops.
FOR INTERNAL DISTRIBUTION ONLY Session Lead Analysis/Comments: •
The atmosphere in the room was relaxed and constructive. This was the most in-depth discussion with the US on investment policy to date. The UK was able to move the conversation into greater detail and the scope of the discussion reflected the UK’s progress in developing its investment policy since the last TIWG.
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The US asked for further details on the UK’s policy development at several points throughout the discussion. They will be expecting a more detailed and developed update at the next TIWG.
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There are many potential levels of overlap between the US and probable UK positions. The US referenced a large amount of case law during the discussions. The UK will need to continue to explore this in terms of policy implications for the NAFTA cases the US has faced, and the cases that its investors have brought against other states.
• The US messages on the ICS were unsurprising, if forceful. The US was clearly aware of likely UK positions on pre-establishment and were interested to see whether the UK position on CIL and FET would move from current BITs to the EU approach. 98