A/HRC/33/40 I. Introduction 1. In its resolution 30/29, the Human Rights Council invited the Independent Expert on the promotion of a democratic and equitable international order to continue to develop studies on the adverse human rights impact of international investment agreements, bilateral investment treaties and multilateral free trade agreements on the international order. 2. The present report complements the analysis contained in the Independent Expert’s 2015 report to the Council (A/HRC/30/44 and Corr.1) and his 2015 report to the General Assembly (A/70/285 and Corr.1), addresses the aggravation of the “regulatory chill” generated by investor-State dispute settlements,1 and demonstrates that the newly proposed investment court system suffers from the same fundamental flaws as investor-State dispute settlement. Essentially, the investment court system lacks the fundamental safeguards to ensure an independent legal system in line with the requirements of due process. That analysis was shared by the associations of German and Spanish judges in opinions from 4 February 20162 and 23 May 2016,3 respectively. Under the investment court system, States would remain vulnerable to the same kind of frivolous and vexatious claims that have characterized the hugely expensive, slow and unpredictable investor-State dispute settlement litigation. Important issues of constitutionality and the rule of law arise when non-State actors exercise “prerogative powers” beyond public control and judicial scrutiny. 3. The human rights impacts of the General Agreement on Tariffs and Trade and World Trade Organization (WTO) law and practice, in particular the dispute settlement mechanism, are also addressed, recognizing that WTO multilateralism is more transparent than practices under bilateral investment treaties and free trade agreements. The Independent Expert is confident that WTO, through civil society inputs at its public forums, will yet discover its vocation to use trade to promote human rights and development. However, fundamental problems raised by bilateral investment treaties and free trade agreements are reflected in WTO practices, notably concerning the agricultural and intellectual property sectors. Closer monitoring by national parliaments and by the InterParliamentary Union (IPU) is necessary to recast trade in a human rights-friendly framework. The tenth WTO Ministerial Conference, held in Nairobi in December 2015, could have delivered good results had it been true to the commitments made under the Doha Development Agenda, but it was seriously marred by the intransigence of some States that attempted to bury the Agenda and prevented progress on food security and environmental protection. 4. The issues are so complex and the consequences so serious that the present report can be read only as a work in progress, since it will be necessary to continue monitoring the adverse impacts of old bilateral investment treaties and free trade agreements and to see whether initiatives to reform the system and eliminate contra bonos mores provisions in those treaties result in a more democratic and equitable economic regime, or whether egregious abuses continue with impunity. The role of parliaments is crucial in ensuring 1 2 3 2 World Investment Report 2015 (United Nations publication, Sales No. E.15.II.D.5); http://investmentpolicyhub.unctad.org/ISDS; “Investor-state dispute settlement: the arbitration game”, The Economist, 11 October 2014; European Economic and Social Committee, “Opinion of the European Economic and Social Committee on Investor protection and investor to state dispute settlement in EU trade and investment agreements with third countries”, Brussels, 27 May 2015. ttip2016.eu/files/content/docs/Full%20documents/english_version_deutsche_richterbund _opinion_ics_feb2016.pdf. http://juecesparalademocracia.blogspot.ch/; http://ciarglobal.com/es/jpd-rechaza-arbitraje-ttip/. GE.16-11938