An issue particularly emphasised in connection with negotiations concerning the Transatlantic Trade and Investment Partnership agreement (TTIP) and other similar agreements (e.g. the comprehensive economic and trade agreement between Canada and the EU and its member states - CETA) is the dispute resolution system anticipated in them.

I will now refer primarily to information about the TTIP available in the public domain, though one should take into account that similar solutions are found in the CETA agreement, which is to be signed on 18 October 2016.

One should expect the final version of the TTIP agreement to introduce two dispute resolution systems applying in different situations – disputes arising from how to interpret the agreement and disputes of an investment nature.

The subject of disputes arising from the agreement will be able to be differences in interpreting and introducing the TTIP’s provisions (e.g. the content of obligations of the states which are party to it, and their discharge of those obligations).  The parties to such disputes will be able to be the agreement’s signatories, i.e. the EU, its member states, and the United States. The draft agreement provides that the parties should confer in matters of dispute, so as to reach a compromise[1]. However, if that method is not effective, the draft provides for the possibility of referring the case to arbitration, according to rules specified in the agreement itself.

The second type of dispute anticipated in the TTIP is those arising between an investor and a state. According to the draft agreement, an investor will be an entity coming from one of the states, which is to invest capital in a second state for profit and at its own risk.

The above means that domestic entrepreneurs unhappy with the manner of performance will only be able to refer to it in reference to their foreign investments. In such a case, they can either incline the Republic of Poland to attempt to reach a compromise with the United States (the first procedure), or they can decide to start arbitration proceedings (the second procedure). Neither domestic entrepreneurs nor the Polish state will directly be able to call the behaviour of American businesses into question, if it complies with the solutions negotiated.

A certain consolation for domestic entrepreneurs is that the arbitration system between the investor and the state is not to be based on generally criticised investor-state dispute settlement (ISDS), in principle carried out in camera before a three-person ruling panel in accordance with procedural regulations applicable for a given tribunal, but on the investment court system (ICS) of courts operating publicly and with the participation of interested third-party entities (e.g. domestic trade organisations). However, what is essential is that Poland is still only in the process of applying for the right to appoint its own arbitrator in that court.

It seems, however, that the concerns of domestic entrepreneurs do not result so much from issues connected with protecting their own rights abroad (this always entails costs and the risk of the solution not being satisfactory) as from the fact that Poland will be deprived of the possibility of regulating the scope of expansion of American businesses onto the domestic market, as each attempt to introduce a new legal restriction could entail the need to pay compensation to investors who have suffered loss on that account. Thus, even though the TTIP does not prohibit signatory states from enacting their own law[2], it does not, apparently, rule out the possibility of investors seeking compensation if they feel that the change of law introduced makes their situation worse[3]. One can see how unfavourable this could be for the budget by analysing available solutions of arbitration tribunals.