Fairness, equality, and the balancing of interests? The Transatlantic Trade and Investment Partnership (TTIP) and its consequences for real estate investments and property rights in Germany

Abstract

Approximately 850 Million people of the 28 EU Member States and the population of the USA will be affected by the Transatlantic Trade and Investment Partnership (TTIP). The TTIP Member States will represent 60% of global GDP, 33% of world trade in goods and 42% of world trade services. Hence, TTIP is by far more than the well-cited and extensively disputed chlorinated chicken. A core element of TTIP is the protection of property and investment expectations which are enforced by mechanisms such as bidding procedures for land and estates. Investment – symbolized by the ‘I’ within TTIP – protection is the raison d´ etre of the treaty as a transatlantic corporate bill of rights. Originally designed as an extraterritorial and extrajudicial instrument to eliminate trade restriction and invent global standardization processes, TTIP could lead to diversified land policies and monopolized landownership regimes. The purpose test of TTIP is fairness, equality, and the balancing interests of investors and the public. According to the road map of the European Commission, 2016 will be the year when TTIP sees the light of the day. Unlike the numerous Bilateral Investment Treaties and the TTIP-sibling CETA, the transatlantic trade and investment partnership is unique in respect of the competency to “overrule” national laws and to introduce standards, norms and regulations above and beside national legislation (“right to regulate”). To date, TTIP violates Articles 14 and 92 of the German Constitution. What will be the consequences for the land policies in the Member States in respect to the three TTIP market access, regulatory cooperation, and rules? Take the case MTD Equity v. Chile as the leading case in point. The case study Berlin demonstrates the necessity of “marrying” investment protection procedures, fair and equitable treatment standards, and the right to undisturbed investments (investment-backed expectations) with the domestic rule of law and the instruments for an effective land policy at hand. The purpose test of TTIP – transparency, justice, due process of law, and minimum treatment of national investors – before the background of consistency of governmental action, the stability of long-term arrangements and commitments – has still to be passed. Can land policy be interpreted as a sub-category of investment planning and business of managing public affairs, serving as a “gold standard” for investment in areas such as energy, transport, water, and housing?