Incoming: Spare Slots for Freelance Work in 2023

I will soon have spare slots in my freelance writing schedule for regular weekly or monthly work, and major projects. Here are the main areas that I've been covering, some for nearly three decades. Any commissioning editors interested in talking about them or related subjects, please contact me at glyn.moody@gmail.com. I am also available to speak on these topics at relevant conferences around in the world, something I have done many times in the past. 

Privacy, Surveillance, Encryption, Freedom of Speech 

Over the last decade, I have written hundreds of articles about these crucial areas, for Techdirt, Privacy News Online, and Ars Technica. Given the increasing challenges facing society in these areas, they will remain an important focus for my work in the future. 

Copyright

I have also written many hundreds of articles about copyright. These have been mainly for Techdirt, where I have published nearly 1,900 posts, CopyBuzz, and Walled Culture. Most recently, I have written a 300-page book, also called Walled Culture, detailing the history of digital copyright, its huge problems, and possible solutions. Free ebook versions of its text are available. 

EU Tech Policy and EU Trade Agreements: DSA, DMA, TTIP, CETA 

I have written about EU tech policy for CopyBuzz, focussing on the EU Copyright Directive, and for Privacy News Online, dealing with major initiatives such as the Digital Services Act, the Digital Markets Act, and the Artificial Intelligence Act. Another major focus of my writing has been so-called "trade agreements" like TTIP, CETA, TPP and TISA. "So-called", because they go far beyond traditional discussions of tariffs, and have major implications for many areas normally subject to democratic decision making, notably tech policy. In addition to 51 TTIP Updates that I originally wrote for Computerworld UK. I have covered this area extensively for Techdirt and Ars Technica, including a major feature on TTIP for the latter. 

Free Software/Open Source

I started covering this topic in 1995, wrote the first mainstream article on Linux for Wired in 1997, and the first (and still only) detailed history of the subject, Rebel Code: Linux and the Open Source Revolution in 2001, for which I interviewed the world’s top 50 hackers at length. 

Open Access, Open Data, Open Science, Open Government, Open Everything 

As the ideas underlying openness, sharing and online collaboration have spread, so has my coverage of them, particularly for Techdirt. I wrote one of the most detailed histories of Open Access, for Ars Technica, and its history and problems also form Chapter 3 of my book Walled Culture, mentioned above. 

Europe 

As a glance at some of my 580,000 (sic) posts to Twitter, and 18,000 posts on Mastodon, will indicate, I read news sources in a number of languages (Italian, German, French, Russian, Spanish, Portuguese, and Georgian in descending order of capability.) This means I can offer a fully European perspective on any of the topics above - something that may be of interest to publications wishing to provide global coverage that goes beyond purely anglophone reporting. The 25,000 or so followers that I have across these social networks also means that I can push out links to my articles, something that I do as a matter of course to boost their readership and encourage engagement. 

Glyn Moody 

London 2023

Incoming: Spare Slots for Freelance Work in 2018

I will soon have spare slots in my freelance writing schedule for regular weekly or monthly work, and major projects. Here are the main areas that I've been covering, some for more than two decades. Any commissioning editors interested in talking about them or related subjects, please contact me at glyn.moody@gmail.com (PGP available).  I am also available to speak on these topics at relevant conferences.

Surveillance, Encryption, Privacy, Freedom of Speech

For the last two years, I have written hundreds of articles about these crucial areas, for Ars Technica UK (http://arstechnica.co.uk/author/glyn_moody/), Privacy News Online (https://www.privateinternetaccess.com/blog/author/glynmoody/) and Techdirt (https://www.techdirt.com/user/glynmoody). Given the challenges facing society this year, they are likely to be an important focus for my work in 2018.

China

Another major focus for me this year will be China. I follow the world of Chinese IT closely, and have written numerous articles on the topic. Since I can read sources in the original, I am able to spot trends early and to report faithfully on what are arguably some of the most important developments happening in the digital world today.

Free Software/Open Source

I started covering this topic in 1995, wrote the first mainstream article on Linux for Wired in 1997 (https://www.wired.com/1997/08/linux-5/), and the first (and still only) detailed history of the subject, Rebel Code (https://en.wikipedia.org/wiki/Rebel_Code) in 2001, where I interviewed the top 50 hackers at length. I have also written about the open source coders and companies that have risen to prominence in the last decade and a half, principally in my Open Enterprise column for Computerworld UK, which ran from 2008 to 2015.

Open Access, Open Data, Open Science, Open Government, Open Everything

As the ideas underlying openness, sharing and online collaboration have spread, so has my coverage of them. I wrote one of the most detailed histories of Open Access, for Ars Technica (http://arstechnica.com/science/2016/06/what-is-open-access-free-sharing-of-all-human-knowledge/).

Copyright, Patents, Trade Secrets

The greatest threat to openness is its converse: intellectual monopolies, which prevent sharing. This fact has led me to write many articles about copyright, patents and trade secrets. These have been mainly for Techdirt, where I have published over 1,500 posts, and also include an in-depth feature on the future of copyright for Ars Technica (http://arstechnica.co.uk/tech-policy/2015/07/copyright-reform-for-the-digital-age/).

Trade Agreements - TTIP, CETA, TISA, TPP

Another major focus of my writing has been so-called "trade agreements" like TTIP, CETA, TPP and TISA. "So-called", because they go far beyond traditional discussions of tariffs, and have major implications for many areas normally subject to democratic decision making. In addition to 51 TTIP Updates that I originally wrote for Computerworld UK (http://opendotdotdot.blogspot.nl/2016/01/the-rise-and-fall-of-ttip-as-told-in-51.html), I have covered this area extensively for Techdirt and Ars Technica UK, including a major feature on TTIP (http://arstechnica.co.uk/tech-policy/2015/05/ttip-explained-the-secretive-us-eu-treaty-that-undermines-democracy/) for the latter.

Europe

As a glance at some of my 318,000 (sic) posts to Twitter, identi.ca and Google+ will indicate, I read news sources in a number of languages (Italian, German, French, Spanish, Russian, Portuguese, Dutch, Greek, Swedish in descending order of capability.) This means I can offer a fully European perspective on any of the topics above - something that may be of interest to publications wishing to provide global coverage that goes beyond purely anglophone reporting. The 30,000 or so followers that I have across these social networks also means that I can push out links to my articles, something that I do as a matter of course to boost their readership.

TTIP Is Dying; Here's How to Help Finish It Off

TTIP is dying:

According to the research, "In the United States [today], opinion is split, with 15 percent in favour [of TTIP] and 18 percent against." In 2014, 53 percent of Americans were in favour, and 20 percent were against TTIP. In Germany today, "33 percent have a negative opinion of TTIP, with only 17 percent considering it a good thing." Two years ago, 55 percent of Germans were in favour, with 25 percent against.

There are no comparable figures for the UK, but they probably wouldn't be as good: the almost total lack of media coverage on TTIP and CETA might make cynics suspect a conspiracy, and many people in the UK have never heard of it.  If asked, they would probably say they were in favour of a trade deal with the US - indeed, some surveys carried out for the European Commission ask precisely that question, and get generally favourable answers.  That's not surprising, since the problem is not so much with US trade deals in general as TTIP in particular: when people find out exactly what is in TTIP they are generally pretty appalled at what is being done in their name.

Given the reluctance of mainstream media to provide objective information - if any - there's not much we can do other than post to social media.  One other thing we Europeans can all do is to contact our politicians expressing our concerns, and asking them some questions about their knowledge and support or otherwise for TTIP.

Linda Kaucher, the main organiser of the Stop TTIP movement in the UK, has put together a useful sample letter for UK citizens to send to their MPs to do precisely that.  It could easily be modified for other EU countries.  Ideally, you could take the letter and edit it to make it more personal, but the most important thing is to send it to your political representatives so that they appreciate the strength of public opinion on the topic of TTIP and CETA.  Here's the letter:

Dear [politician],

I have these concerns and questions about the EU so-called ‘trade’ agreements and I would appreciate a response at your earliest convenience.

The US/EU TTIP (Transatlantic Trade and Investment Partnership) is of huge public concern as it is clearly for the benefit of transnational corporations while it threatens our health and safety standards, our public services (despite attempted ‘reassurances’), and our democracy and sovereignty.

Investor State Dispute Settlement (ISDS) and the Trade Commission’s latest version of this, Investment Court System (ICS) will give rights to transnational and foreign corporations to sue EU governments, thus threatening regulation in the EU and in the UK. The planned Regulatory Cooperation Body, by any name, will be supranational, assessing all regulation, existing and future, on criteria of ‘trade’ rather than social values, with big business input from both sides of the Atlantic from the earliest stages.

Of immediate concern is the EU/Canada CETA (Comprehensive Economic and Trade Agreement). It has many of the same components as TTIP and is in some aspects even worse eg 100% negative listing of services.  It is very much a ‘back door’ for TTIP, both as a model for such deals and in allowing US corporations to utilise ISDS (ICS) against EU governments, including our own, via their Canadian subsidiaries.

Supposed economic ‘gains‘ for both TTIP and CETA , even according to the official studies, have  been exposed as minimal and it is indicative that the European Commission no longer refers to them  – so, no ‘jobs and growth‘ after all.

These trade agreements should be blocked and the UK government can do this in the European Council. Will you urge the Cameron government to do this?

In addition to these concerns about these agreements, I have these questions and requests about process:

It appears from the UK parliamentary procedures that the UK has denied itself any veto with regard to trade deals, even though other member state parliaments have this power. Is this the case, and if so will you initiate action to change this?

The problem remains that our MPs still have no access to key TTIP documents, whereas members of other EU parliaments do. Will you ask a parliamentary question on why UK MPs still have no access to key TTIP documents?

In the CETA text we have no UK protection for Geographical Indicators (regional food names), whereas other member states do. Will you ask a PQ on why the UK government has failed to seek any GI protection in CETA and call on the UK government to block the completed CETA agreement on this basis?

Even if CETA and TTIP are 'mixed deals’ they would be ‘provisionally implemented’ by the Commission, with ISDS obligations legally in force from that point,  before any parliamentary discussion here and there are no procedures to reverse this. This procedure, particularly combined with a lack of UK veto, makes the UK ratification process irrelevant. Will you call on the UK government to block TTIP and CETA in the EU Council, for this additional reason?

There is no analysis of the 1600 page CETA text, as a basis for either the European Parliament or the UK parliament to ratify this agreement.  It should therefore not be ratified. Will you call for CETA to be blocked in the Council for this reason also?

I look forward to your response

Me too.

TTIP Update LI

It's been a couple of months since my last TTIP update.  That hiatus reflectes the talks themselves, which feel strangely suspended.  That's not to say nothing is happening: indeed, there's an air of desperate busy-ness beginning to creep into the proceedings as even the most fervid supporter of the agreement realises that TTIP is not going to be finished by the end of 2015, and people rush around vainly trying to do something about it.  That's pretty astonishing when you remember that the original plan was to finish it by the end of 2014:

"If we're going to go down this road, we want to get it on one tank of gas," [chief US negotiator] Froman said earlier this year.

For now, one tank of gas for both sides means reaching a deal before the current European Commission, the executive branch of the EU, finishes its term at the end of 2014.

That deadline has come and gone, and even end of 2015 is looking unrealistic.  That's serious, because in 2016, the political madness that is the US Presidential race begins - and Obama will not want to have to force through an increasingly unpopular trade agreement and thus blight the chances of whoever the Democrat's candidate turns out to be.  That's become an even more important concern in the wake of introduction of the US Trade Promotion Authority bill, also known as "Fast Track" a couple of weeks ago.

Fast Track essentially gives Obama full authority to negotiate trade agreements like TTIP and its sister treaty, the TransPacific Partnership agreement (TPP), with only a single, yes or no vote at the end of the process.  This is exactly what happens here in the EU, where the European Commission has the authority to negotiate trade agreements, which are then presented to the European Parliament for ratification.

The big problem - for the public, at least - is that not a single comma can be changed at this stage: it's a classic take it or leave offer.  This is a kind of political blackmail, since MEPs will be unwilling to be seen to reject a package that might contain some good measures - for example, potentially boosting employment - because it also contains bad things like the investor-state dispute settlement (ISDS).  The hope - of both the European Commission and Obama - is that lawmakers will simply swallow the bad bits in order to keep the good bits.

But politicians are now much more aware of how unsatisfactory this blackmail is, and are trying to avoid getting into that situation.  Some, like Senator Ron Wyden, who is co-sponsor of the Trade Authority bill, want to place certain conditions on the granting of fast track authority so as to make the final agreement as acceptable as possible.  But many others, both Democrats and Republicans, are unwilling to grant Obama the trade authority at all, albeit for different reasons.  The Democrats are concerned about the bad things in TPP, whereas the Republicans simply don't want to give extra powers to their ideological enemy, Obama.

Whatever the reason for their revolt, US politicians are not lining up to support the Trade Promotion Authority, and it seems that its passage hangs in the balance, with its chances shifting on an almost daily basis.  That has huge implications for TTIP as well as TPP.  If Obama is unable to obtain fast track, it's quite possible that TPP will collapse, since the other nations involved will be unwilling to make their best offers since the US cannot guarantee that its politicians won't try to alter the "final" text of the agreement.

The same applies to TTIP.  If Obama fails to secure Trade Promotion Authority, all of the US offers to the EU will be provisional, since the US politicians will have the power to throw out any element of the TTIP text that they don't like, regardless of what the negotiators agreed.

Gaining fast track is just one major hurdle that TTIP must overcome.  Even more serious from a European viewpoint is the fact that the more that the public finds out about TTIP, the less they like it.  That's shown by the fact that the self-organised stand-in for the European Citizens Initiative has now collected an astonishing 1.7 million signatures, with plenty of time to reach 2 or even 3 million before the nominal cut-off date of October 2015.  And if you think that filling in a few boxes on a Web page doesn't mean much, consider that recently tens of thousands of people took to the streets across Europe in hundreds of protests against TTIP, in scenes strongly reminiscent of the ACTA demonstrations.

The European Commission remains completely wrong-footed by this swelling tide of discontent.  Although the commissioner for trade, Cecilia Malmström, is undoubtedly far more transparent than her predecessor, that's not saying much when you consider it was Karel de Gucht, the man who almost single-handedly destroyed ACTA by his arrogant attitude and high-handed actions. Her repeated claims that she won't agree to anything that might lower standards or harm the European public have been rather undermined by an important recent leak obtained by Corporate Europe Observatory:

According to a leaked European Commission proposal in the ongoing EU-US Transatlantic Trade and Investment Partnership (TTIP) negotiations, EU member state legislative initiatives will have to be vetted for potential impacts on private business interests.

Here's how it will work:

The “regulatory exchange” proposal will force laws drafted by democratically-elected politicians through an extensive screening process. This process will occur throughout the 78 [EU and US] States, not just in Brussels and Washington DC. Laws will be evaluated on whether or not they are compatible with the economic interests of major companies. Responsibility for this screening will lie with the 'Regulatory cooperation body, a permanent, undemocratic, and unaccountable conclave of European and American technocrats.

This is particularly troubling:

“What’s perhaps most scary about this proposal is its potential application to existing regulation – not just paralyzing future legislation but sending us backward,” says David Azoulay at the Center for International Environmental Law (CIEL). “Not only will it extend an outrageously burdensome process on future legislation, but any current legislation in the public interest that doesn’t sit well with trade interests on either side of the Atlantic could be subjected to the same process to make it conform to corporate interests.”

The leak confirms that regulatory co-operation will undermine key institutions and processes that lie at the heart of European society.  That's significant, because when it's put together with the other deeply problematic aspect of the proposed trade agreement, ISDS, it reveals the whole TTIP project to be a concerted and thoroughgoing attack on democracy itself, with corporates and international investors as the main beneficiaries.

Despite the massive rejection of ISDS in the European Commission's public consultation, Malmström seems hell-bent on ploughing ahead with it, albeit in some lightly re-worked and re-branded form.  But the problem is not the details, but the basic idea - that of giving foreign investors special courts that only they can use to make huge claims against sovereign nations.  The only solution is to get rid of ISDS completely.  If  Malmström stubbornly refuses to do that, it seems clear that TTIP will fall, just as ACTA did.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

TTIP Update L

In the last TTIP update I wrote about two important leaks, both dealing with regulatory matters.  One of those came from the Greens MEP Michel Reimon, and he's released another important document, this time concerning dispute settlement [.pdf].  Once more, it has been re-typed from the actual leaked document in order to minimise risk for the source (to whom thanks....)

It's an important chapter, since, as it says at the start:

The objective of this chapter is to establish an effective and efficient mechanism for avoiding and settling any dispute between the Parties concerning the interpretation and application of this Agreement with a view to arriving, where possible, at a mutually agreed solution.

That is, it covers the entire TTIP agreement, whatever that may turn out to contain.  It describes in some detail how an arbitration panel consiting of three people will be used to resolve disputes regarding TTIP between the EU and US.  Significantly, the proposed text says:

The ruling of the arbitration panel shall be unconditionally accepted by the Parties.

Here are the requirements for those arbitrators:

Arbitrators shall have specialised knowledge and experience of law and international trade. They shall be independent, serve in their individual capacities and not take instructions from any organisation or government, or be affiliated with the government of any of the Parties, and shall comply with the Code of Conduct set out in Annex II to this Agreement.

When it comes to the arbitration proceedings, which would take place in either Brussels or Washington:

Only the representatives and advisers of the Parties to the dispute may address the arbitration panel.

That is, there are no representatives of the public.  However, the latter is graciously permitted to make written submissions to the arbitration panel:

Unless the Parties agree otherwise within three days of the date of the establishment of the arbitration panel, the arbitration panel may receive unsolicited written submissions from natural or legal persons established in the territory of a Party to the dispute who are independent from the governments of the Parties to the dispute, provided that they are made within 10 days of the date of the establishment of the arbitration panel, that they are concise and in no case lon ger than 15 pages typed at double space and that they are directly relevant to a factual or a legal issue under consideration by the arbitration panel.

Perhaps hoping to ward off any criticisms, the European Commission's proposal for dispute resolution includes the following in the remarks section:

This text for the dispute settlement chapter including the relevant annexes (Rules of Procedure, Code of Conduct and Mediation) is practically identical to all the texts for dispute settlement chapters (incl. its annexes) that the EU put forward in all recent bilateral negotiations of a trade agreement.

In other words, nothing to see here, move along please.  And, indeed, the logic seems inarguable: trade agreements need dispute settlement procedures to sort out disagreements, this is what we've used innumerable times before, so no one can possibly object.  But here's the big problem with that syllogism: TTIP is not (just) a trade agreement.

The European Commission's own (hugely-optimistic) modelling of TTIP assumes that 80% of the benefits will flow not from pushing to zero all trade tariffs, of which there are few, but by removing "non-tariff barriers".  And as I noted in my last column, those "non-tariff barriers" are things like regulations and standards.  They are essentially *cultural* expressions of a nation, and help to define what kind of society we want to live in by establishing what is protected, and to what extent.

So what the European Commission is proposing with the dispute resolution chapter is how clashes over those key social constructs will be resolved.  And the answer is: by a three-person arbitration panel.  That is, key aspects of everyday life - the social, environmental and safety protections that have been laid down over decades or more - can be thrown out purely on the say of those three people.  And remember: "The ruling of the arbitration panel shall be unconditionally accepted by the Parties."  So if, for whatever reason, the arbitration panel says a well-established regulation protecting health and safety, or the environment, has to go, well, it has to go, even if the vast majority of the public that it will effect disagrees.

This exposes the canker at the heart of the TTIP rose: it is applying trade policy instruments - and using the metric of profit - to core aspects of our lives that have nothing to do with either trade or money.  This is why TTIP's aim of removing "non-tariff barriers" - "trade frictions" as they are also called - is fundamentally misguided, and profoundly wrong.  By all means let us have a trade deal that allows both sides to buy and sell to each other without tariffs; but do not use that desire to allow an unelected, supranational tribunal to make decisions, which cannot be appealed, affecting 800 million people, about cherished facets of our culture and daily lives.

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TTIP Update XLIX

As is widely appreciated by now, TTIP is about regulatory harmonisation rather than about lowering tariffs, since the latter are already extremely low.  That raises the central question: how can TTIP harmonise without lowering standards, which the European Commission has stated categorically will not happen with TTIP?  An early update, back in 2013, hinted at a resolution of this conundrum.  TTIP would not, in itself, lower standards, but it would create a machinery that would progressively lower standards after TTIP had been ratified.  That would allow the European Commission to claim - truthfully - that TTIP did not lower standards, while at the same time setting in train a process that would both bring in harmonisation, and lower standards.

In December 2013, we had a leak of a position paper on "regulatory coherence" [.pdf] that hinted at what was to come.  And now, thanks to the Greens MEP Michel Reimon, we have our first real TTIP leak on the subject .  It even comes with a nice cloak-and-dagger angle, since it has been re-typed from the original leaked document to protect the source.

Specifically, it's the EU's paper on the regulatory co-operation on financial regulation in TTIP [.pdf].  This is one of the many really hotly-contested areas, and one where US regulations are stricter than those in the EU.  EU corporations therefore want to use TTIP as a way of undermining US laws (de-regulation is a threat for both the EU and the US.)

Here's the basic aim:

The Parties commit to engage in a process towards convergence of their respective regulatory and supervisory frameworks for financial services.

And here's how they aim to do that:

The Parties hereby establish the Joint EU/US Financial Regulatory Forum ("the Forum").

The Forum is in charge of regulatory co-operation between the Parties in the domain of financial services.

What's troubling is the following:

The Joint EU/US Financial Regulatory Forum shall agree on detailed guidelines on mutual reliance adapted for each specific area of financial regulation no later than one year from the entry into force of this agreement.

It's deeply worrying that European politicians and governments will be asked to sign up to TTIP where one of its most important mechanisms - the Financial Regulatory Forum - is left undefined.  As Michel Reimon rightly says in his blog post accompanying the leak (original in German):

Thus a Parliamentary resolution [to accept TTIP] would become a blank cheque: we would create a body whose way of working we don't know, and would only learn a year later, when we would have to implement it.  Every MEP that agrees to this proposal is giving up his or her independent mandate.

This is an important leak, because it gives us a first glimpse of how TTIP is likely to frame the regulatory co-operation, at least in the financial sector.  By an interesting coincidence, another leak in the same area has just appeared on the Corporate Europe Observatory site, which concerns the overall approach to regulation.  The document runs to ten pages [.pdf], and is written in fairly opaque terms; I recommend reading the Corporate Europe Observatory's excellent analysis instead.  Here are some of the main points.

According to the proposal, as soon as a new regulation is in the pipeline, businesses should be informed through an annual report, and be involved. This is now called “early information on planned acts”, until recently called “early warning”. Already at the planning stage, “the regulating Party” has to offer business lobbyists who have a stake in a piece of legislation or regulation, an opportunity to “provide input”. This input “shall be taken into account” when finalising the proposal (article 6). This means businesses, for instance, at an early stage, can try to block rules intended to prevent the food industry from marketing foodstuffs with toxic substances, laws trying to keep energy companies from destroying the climate, or regulations to combat pollution and protect consumers.

This immediately indicates how the proposed system will act as a brake on democratic decision-making.  When proposals are put forward in the EU, say, they will be lobbied against using the new mechanism, making it much harder to bring in bold ideas.  It is essentially creating a new, and even more powerful forum for lobbyists to use in order to achieve their paymasters' goals.  Here's another way that sovereignty will be reduced:

New regulations should undergo an “impact assessment”, which would be made up of three questions (article 7, reduced from seven in the earlier proposal):

- How does the legislative proposal relate to international instruments?
- How have the planned or existing rules of the other Party been taken into account?
- What impact will the new rule have on trade or investment?

Those questions are primarily tilted towards the interests of business, not citizens. Thanks to the “early information” procedure, businesses can make sure their concerns are included in the report, and should it go against their interests, the report will have to cite a detrimental impact on transatlantic trade.

What's striking here is that everything - without exception - is seen through the optic of business.  There is no account taken of social impact, health or environmental issues.  Since many measures tackling climate change, for example, will have negative consequences for big business that profit from pollution, it's easy to see the proposal being used to slow down action here even more.

The model presented by the EU negotiators gives big business many tools that will allow them to complain about an “envisaged or planned regulatory act”, and regulations under review (article 9 and 10). In particular, a “regulatory exchange” must take place if a Party is unhappy with the effect of a proposed rule on its trade interests. A dialogue will have to take place, and the Party whose rules are under attack, must co-operate, and must be prepared to answer any given question.

The latest leak also tells us that the transatlantic body responsible for overseeing this filtering process has a new name:

The Regulatory co-operation Body (RCB) under TTIP – previously known as the Regulatory co-operation Council – will have the overall responsibility for regulatory co-operation and one of its obligations will be to “give careful consideration” to businesses proposals on future and existing regulations (article 13).

The name may have changed, but the overall intent hasn't: to put business firmly in the driving seat when it comes to drawing up EU and US regulations.  That is no longer purely a trade issue, as tariff adjustment is.  Regulations define and shape a society's culture; the regulatory chapter's avowed aim of making all regulations serve business and the pursuit of profit implicitly makes society's wider needs subservient to those of corporates. Of course, the European Commission is fully aware of this implication; and so, at the beginning of this chapter on regulation, we find the usual cant about "public policy objectives":

The provisions of this Chapter do not restrict the right of each Party to adopt and apply measures to achieve legitimate public policy objectives at the level of protection that it considers appropriate, in accordance with its regulatory framework and principles.

But those words are worthless.  In theory, that "right" may still exist, but in practice, everything in the leaked document is geared to making it easier for business to obstruct democratic decisions, and to impose a corporate agenda on the entire regulatory process - even down to requiring everything to be judged in purely financial terms.

These two latest leaks are important because they have nothing to do with the Investor-State Dispute Settlement (ISDS) chapter that has currently dominated the TTIP debate.  They remind us that ISDS is far from the only danger to national and EU sovereignty, and that we must not think that removing ISDS from TTIP (and the other trade deals with Canada and Singapore) is the end of the story.

The idea of creating any kind of transatlantic "Regulatory co-operation Body" with powers to subvert or even just impede the framing of laws and regulations is clearly incompatible with EU and US legislative institutions, and must be nipped in the bud.  That's at least possible thanks to the people who have generously made these leaked documents available, revealing yet more secret machinations by the European Commission to circumvent democracy.

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TTIP Update XLVIII

As I've noted many times before, the investor-state dispute settlement (ISDS) mechanism has long been the most contentious aspect of TTIP, and that was reflected in the unexpected decision to hold a consultation on the area last year.  The hope seems to have been that this would keep critics quiet, and allow the European Commission to come up with a few minor tweaks to its proposals while claiming that the public had been allowed to air their views.

It didn't quite work out like that.  An unprecedented 150,000 replies were received - and this was on a hitherto obscure aspect of a traditionally boring trade agreement.   That number alone bespeaks a  new relationship between the public and the politicians who are supposed to serve them.  And so the results of that consultation have been eagerly awaited: how exactly would the European Commission manage to turn the ultimate lemon into lemonade?

Now we know: they didn't.  The 140-page analysis [.pdf] is almost entirely statistical, providing useful but rather dry summaries of how many people said what kind of thing. Here's the Commission's potted version:

The vast majority of replies, around 145,000 (or 97%), were submitted through various on-line platforms of interest groups, containing pre-defined, negative answers. In addition, the Commission received individual replies from more than 3,000 individuals and some 450 organisations representing a wide spectrum of EU civil society, including NGOs, business organisations, trade unions, consumer groups, law firms and academics. These replies generally go into more detail on the proposed approach. (See MEMO)

Broadly speaking, the replies can be divided into three categories:

    replies which indicate opposition to or concerns around TTIP in general;
    replies opposing or expressing general concerns about investment protection/ISDS in TTIP;
    replies which provide detailed comments on the EU’s suggested approach in TTIP, representing broad and divergent views;

The many replies in the first two categories are a clear indication of the concerns that many citizens across Europe have concerning TTIP generally and about the principle itself of investment protection and ISDS.

More important than that analysis is the European Commission's attitude to the results, and what it intends to do now.  Here's what the Commissioner for Trade, Cecilia Malmström is quoted as saying:

“The consultation clearly shows that there is a huge scepticism against the ISDS instrument”, said Cecilia Malmström, Commissioner for Trade, in a comment.

“We need to have an open and frank discussion about investment protection and ISDS in TTIP with EU governments, with the European Parliament and civil society before launching any policy recommendations in this area. This will be the first immediate step following the publication of this report. I also note that there were constructive proposals in the consultation on areas that can be reformed.

Specifically:

In the first quarter of 2015, the Commission will organise a number of consultation meetings with EU governments, the European Parliament, and different stakeholders, including NGOs, business, trade unions, consumer and environment organisations, to discuss investment protection and ISDS in TTIP on the basis of this report. As a first step, the consultation results will be presented to the INTA Committee of the European Parliament on 22 January. Following these consultations during the first quarter, the Commission will develop specific proposals for the TTIP negotiations.

Yes, the response to the consultation’s overwhelmingly negative outcome is...to hold yet more consultations.  That is of a piece with the consultation itself, which was clearly designed for professional lobbyists who are paid (handsomely) to spend much of their time responding to such consultations.  Running a few more just means they get paid longer.  But for the public, the opposite is true: repeated consultations are likely to wear down people's ability to respond, not least because the public has to earn a living, and therefore filling in forms - never mind attending meetings - represents a real cost to them.

The same contempt for ordinary people struggling to understand and respond to highly complex concepts in order to make their hitherto ignored views heard is present throughout the analysis:

About 70.000 replies consist of seven different batches, submitted through eight different NGOs. Each batch contains identical or very similar answers to all 13 questions;

Some 50.000 replies submitted via one NGO contai n a different pattern. Questions 1 to 12 were answered with a general statement, as follows: "no comment – I don’t think that ISDS should be part of TTIP", while various individual answers were given to the last question (N° 13-general assessment).

Finally, there are around 25.000 replies which present similar features, i.e. no answer to questions 1 to 12 but only to question 13. The answers to question 13 are different but most of them express similar views. It was not possible to identify the source of these replies. Howe ver, given the similarities  with the other collective submissions they were considered, for th e purposes of this report, as collective submissions as well.

It's clear these "collective submissions" are regarded as inferior in some way to the doubtless highly polished replies from corporations and their lobbyists.  The views of a senior US official, quoted in an article from European Voice, are even more contemptuous:

Europeans should be careful about giving the same weight to “a thoughtful response or a one-liner saying ‘I hate TTIP’”, he said, going on to question the commitment of some anti-TTIP NGOs to transparency. “In the US, NGOs publish their finances, but in Europe, we don’t really know,” he said. “We need to understand better; everybody should understand who is behind the NGOs.”

Lovely: not only are the simple expressions from the public less valid than those "thoughtful responses" from big companies and others, but the unnamed senior US official even goes so far as to indulge in a little ad hominem attack: "everybody should understand who is behind the NGOs".  Got that? Those 145,000 negative responses are actually an underhand and carefully-orchestrated conspiracy by dark forces - probably communists - who just hate America for its freedom...

Returning to the less paranoid world of the European Commission, we read:

“we need to reflect upon how to address the fact that EU countries already have 1400 bilateral agreements of this kind, of which some date back to the 50s”, added Malmström.

"The vast majority of these agreements do not include the kind of guarantees that the EU would like to see. This will also have to be an important element of our reflection when considering how to best deal with the question of investment protection in EU agreements, as failure to replace them by more advanced provisions will mean they remain in force – with all the legitimate concerns they have been raising over the last months", the Commissioner highlighted.

This is a very weak argument.  The vast majority of those 1400 bilateral agreements include ISDS as a weapon for European nations to use against developing nations: there is practically zero danger of ISDS being used against the EU by these countries, which have few investments in Europe.  So forcing Europeans to accept the many and major risks of ISDS as a kind of "dry run" for updates that aren't even needed is just ridiculous.

For TTIP, the central question is just: do we need ISDS? The simple answer is: we do not.  The EU and US have extremely well-functioning legal systems that make ISDS unnecessary.  That's not just my opinion, it's the opinion of thousands of investors that have put their money into both the US and EU.  The sums involved are vast: in 2012, the EU had invested € 1.655 *trillion* in the US, and the US had invested € 1.536 trillion in the EU.  By now, that figure will be much higher.  That's clear proof that ISDS is not needed in order to encourage investment on a scale unmatched anywhere else in the world.  And finally, for any company that still thinks it needs some kind of protection when it invests abroad, there is an insurance scheme run by the World Bank designed specifically for this purpose, making ISDS unnecessary.  These three simple facts make all the details about the European Commission's proposed "improvements" to ISDS irrelevant: you don't waste time and effort fixing what you don't need.

However, the very real dangers of ISDS - admitted even by the European Commission - mean that ISDS should not only be dropped from TTIP, but that it must go from the agreement with Canada (CETA), and the one with Singapore, neither of which is finalised yet.  Both of these include ISDS, which would give companies from other countries - the US in particular - the ability to sue the EU indirectly.  That, in its turn, will bring with it a regulatory chill as EU nations think twice about bringing in laws and regulations that might lead to claims under ISDS.

No matter how many times the European Commission repeats that it won't let ISDS force a government to change its law - something that has already happened - the mere threat of costly legal action and huge awards will still interfere with democratic decision-making.  That alone is reason enough to drop ISDS.  Combine that fact with the unequivocal rejection by 145,000 people who went to the trouble of participating in the ISDS consultation, and this shouldn't even be a question any more.

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TTIP Update XLVII

As long-suffering readers of this column wil have noticed, the dominant theme of the discussions around TTIP so far has been the investor-state dispute settlement provisions (ISDS).  We are still waiting for the European Commission's analysis of the massive response to its consultation on the subject - it will be fascinating to see how it tries to put a positive spin on the overwhelming public refusal of ISDS in TTIP. 

The issue that crops up most often after ISDS is probably transparency - or rather the complete lack of it.  Yes, it's true that there have been some token releases of documents: initial position papers in 2013, and some more in 2014; but these don't really tell us much that we didn't already know, or could guess.  The main obstacle to greater openness was Karel De Gucht, the European Commissioner for Trade when TTIP was launched.  As he showed time and again during the ACTA fiasco, he had little but contempt for the European public and its unconscionable desire to know what the politicians whose salaries it pays are up to in Brussels.  That made his retirement at the end of last year an important moment and opportunity.

His successor, Cecilia Malmström, is cut from a very different cloth, as was apparent from this announcement right at the start of her tenure of De Gucht's post:

'TTIP is an immensely important agreement,' said Commissioner Malmström, 'with huge potential to create jobs and growth and to set standards. Yet, even though the TTIP talks are the most transparent and open the Commission has ever conducted, there are still a lot of doubts around what is being negotiated.'

'That's why we want to consult even more extensively on TTIP, and go even further in terms of transparency. Increased transparency will enable us to show, more clearly, what the negotiations are about and to de-mystify them. We will use this as a basis to engage further with a broad range of stakeholders and the public,' said Malmström.

The Commissioner outlined two main proposals for boosting transparency.

First, to extend access to TTIP texts to all Members of the European Parliament, beyond the currently limited group of Members of the European Parliament’s International Trade Committee.

Second, to publish texts setting out the EU's specific negotiating proposals on TTIP.

As I've discussed many times, TTIP does not have "huge potential to create jobs and growth", even under the most optimistic assumptions, but it's certainly important, so Malmström's promise of consulting "even more extensively" is extremely welcome.  Indeed, I was pleasantly surprised last month to experience first-hand just how extensively she means to consult:

Whether that meeting actually happens, remains to be seen.  But Malmström's two main proposals for "boosting transparency" have now been implemented.  The first of them - providing access to MEPs - happened immediately.  The second, publishing actual negotiating texts - happened earlier this week:

The European Commission today published a raft of texts setting out EU proposals for legal text in the Transatlantic Trade and Investment Partnership (TTIP) it is negotiating with the US. This is the first time the Commission has made public such proposals in bilateral trade talks and reflects its commitment to greater transparency in the negotiations.

Specifically, here's what is being made available:

The so-called 'textual proposals' published today set out the EU’s specific proposals for legal text that has been tabled in the proposed TTIP. They set out actual language and binding commitments which the EU would like to see in the parts of the agreement covering regulatory and rules issues. The eight EU textual proposals cover competition, food safety and animal and plant health, customs issues, technical barriers to trade, small and medium-sized enterprises (SMEs), and government-to-government dispute settlement (GGDS, not to be confused with ISDS). Today, the Commission has also published TTIP position papers explaining the EU's approach on engineering, vehicles, and sustainable development, bringing the total number of position papers it has made public up to 15.

To make the online documents more accessible to the non-expert, the Commission is also publishing a 'Reader's Guide', explaining what each text means. It is also issuing a glossary of terms and acronyms, and a series of factsheets setting out in plain language what is at stake in each chapter of TTIP and what the EU's aims are in each area.

That's certainly a big step forward for transparency, as is to be welcomed.  However, not everything is available yet.  For example, in two areas that are likely to be of particular interesting to readers of this column - "Information and communication technology" and "Intellectual property rights" - we only have some rather thin factsheets.  The first of these [.pdf] is particularly slight - just one page.  Perhaps the only element of interest is the following:

In ICT, we want to:

set common principles for certifying ICT products, especially for encoding and decoding information ('cryptography' in the jargon).

But the European Commission is quick to assure us that:

The EU won’t accept lower security levels. We want common principles for assessing how products comply with regulations.

Presumably that means the EU and US will agree to use the same set of backdoors in crypto tools...

On the copyright and patent front [.pdf], it's striking that the Commission is still assuring us that TTIP is not ACTA 2.0 - evidence once more of how deep the fears run of another defeat at the hands of the European Parliament - for example:

The EU and US have detailed enforcement provisions already, whereas some other countries that planned to join ACTA didn't. So we won’t negotiate rules on things like:

penal enforcement

internet service provider liability.

The idea that criminal penalties and ISP liability were only in ACTA because "some countries" did have strong enforcement is ridiculous: they were there because powerful copyright lobbyies in the EU and US wanted them there.  But it is nonetheless welcome to have set down here that neither will be present in TTIP.

The most recent release of TTIP documents shows two things.  First, that we have started the journey towards real transparency, but by no means arrived there yet.  And secondly - and perhaps most importantly - that public advocacy does work.  Although it is true that the present move owes a lot to  Malmström - and kudos to her for taking this step - it is also true that it would never have happened had not thousands of people demanded more openness.  It demonstrates what can be done simply by asking in a polite but persistent manner, and encourages us to keep doing so.

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TTIP Update XLVI

Not much has been happening on the TTIP front during the holiday break, but there's one extremely important report that came out a little earlier that I'd like to explore in this update.  It's called "The hidden cost of EU trade deals: Investor-state dispute settlement cases taken against EU member states", and has been put together by Friends of the Earth Europe.  As that title makes clear, it's about an aspect of the ISDS mechanism that has so far been overlooked: the fact that the EU has *already* suffered as a result of the inclusion of ISDS in other agreements.  As such, they give a foretaste of what's likely to happen if ISDS is included in TTIP (and CETA):

One of the European Commission’s arguments supporting the inclusion of the mechanism in those trade deals is that EU member states have already signed thousands of trade and investment agreements, which include such investor-state dispute arbitration. Investor-state arbitration has become a consistent feature bilateral investment treaties (BITs), with EU member states being party to some 1,400 BITs including ISDS since the late 1960s. So the European Commission says it should be part of the agreements now under negotiation.

What the European Commission rarely mentions is how often this mechanism has been used against EU member states, and how much this mechanism has cost EU taxpayers. The ongoing negotiations of trade and investment agreements – including the Transatlantic Trade and Investment Partnership, the Transpacific Partnership, and negotiations between the EU and the US respectively with China – are unprecedented in size and scope, and would drastically expand the extent of foreign direct investments covered by investor-state arbitration. Such an expansion would risk seriously undermining governments’ ability to regulate for the protection of people and the environment.

Here are the report's key findings:

127 known ISDS cases have been brought against 20 EU member states since 1994. Details of the compensation sought by foreign investors was publicly available for only 62 out of the 127 cases (48%). The compensation sought for in these 62 cases amounts to almost €30 billion.

The total amount awarded to foreign investors – inclusive of known interest, arbitration fees, and other expenses and fees, as well as the only known settlement payment made by an EU member state – was publicly available for 14 out of the 127 cases (11%) and amounts to €3.5 billion.

The largest known amount to be awarded by a tribunal against an EU member state was €553 million in the Ceskoslovenska Obchodni Banka vs. Slovak Republic case (1997).

The report is valuable not just for bringing all these figures together for the first time, but for providing details of several of the most significant cases.  They're all well-worth reading, since they flesh out the otherwise rather dry ISDS concept.  I'd like to focus on one, which raises some particularly important issues.  Here's the report's summary of the case:

The Micula brothers invested in the North West region of Romania – setting up multiple food processing, milling and manufacturing businesses. In 2005, the claimants initiated a dispute against Romania seeking compensation to the tune of €450 million. The case emerged following a series of decisions taken by Romania, which altered or withdrew a number of investment incentives (ie: exemptions from custom duties and certain taxes) that had previously been offered to the Micula brothers in support of their investment in a disadvantaged region of Romania. Romania argued that the regulatory changes they made were warranted, as they were implemented as part of the lead up to accession to the EU in 2007. In December 2013 the tribunal found Romania in breach of the Sweden-Romania BIT and obliged to pay more than $250 million (€183,311,335) in damages.

Clearly, $250 million is a lot of money for a government like Romania to find, money that will have to be taken from other areas of the country's budget - perhaps things like health provision and education.  That's bad enough, but what's really problematic here is that Romania withdrew the investment incentives involved in the case because the European Commission required it as a condition of Romania's accession to the European Union:

The Micula vs. Romania case has incited a great deal of interest, particularly in relation to the sovereignty of EU law. The European Commission (EC) intervened and attempted to convince the tribunal that the actions implemented by Romania were taken in an effort to comply with EU law obligations to eliminate state aid (ie: subsidies and incentives). The Commission argued that if the tribunal ordered Romania to pay compensation it would be considered state aid under a different pretense. The arbitrators were not swayed by the EC’s interventions and, in relation to the enforceability of the final award, drew "attention to Romania’s obligations under the ICSID Convention to comply with the final ICSID awards."

Put simply, what that means is that the tribunal ruled that when it came to protecting investments, EU law should be ignored - a real slap in the face for the European Commission, which had made a direct intervention to avoid just such an outcome. 

This is the key problem with ISDS: it places the rights of corporations above the rights of nations - indeed, in this case, above the rights of the EU to determine law within its borders.  ISDS cannot be "fixed", as the European Commission would have us believe, because it was designed with exactly this purpose in mind: it was introduced as a way of protecting investments in countries where the local rule of law could not be depended upon.  Since that is manifestly not the case in the EU or US, it serves no purpose other than to undermine the strong legal systems there.  The only solution is therefore to drop ISDS from TTIP, CETA and all future agreements.

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TTIP Update XLV

The TTIP negotiations are in trouble.  After 18 months of talks, the EU and US have precious little to show.  And external factors such as the imminent Presidential race in the US means that time is running out to get the deal signed and sealed.  Against that background, there is signs of a (rather feeble) attempt to put “rocket boosters” under the negotiations, as David Cameron likes to phrase it - although he forgets that rocket boosters can also explode on take-off, destroying their cargo completely.

For example, earlier this week the UK government published a Web page entitled "Transatlantic Trade and Investment Partnership (TTIP): benefits and concerns".  Rather surprisingly, it consists entirely of re-heated numbers that I've debunked in earlier TTIP Updates.  Is that really the best they can do? Curiously, TTIP proponents are calling for a political debate based on "facts" and "hard evidence".  I say: bring it on, because the facts are actually pretty damning for most of the hyperbolic claims made by the European Commission as pro-TTIP governments like the UK's.

Always in search of facts about transatlantic trade, I was delighted to come across a publication [.pdf] from the American Chamber of Commerce to the European Union among others, detailing the transatlantic economy 2013. These are figures from a strongly pro-trade group, and surely represent precisely the kind of "facts" and "hard evidence" that supporters of TTIP are calling for.  So let's take a look at some of the key areas.

US-EU merchandise trade totaled an estimated $650 billion in 2012, up 68% from $387 billion in 2000.

In other words, transatlantic trade is already huge, and growing.  So the idea that we desperately need TTIP to make that happen seems curious to say the least.  What about US investments in Europe?  Some figures from the report:

The US and Europe are each other’s primary source and destination for foreign direct investment.

Europe has attracted 56% of US global foreign direct investment (FDI) since 2000.

On a historic cost basis, the US investment position in Europe was 14 times larger than the BRICs and nearly 4 times larger than in all of Asia at the end of 2011.

Here's European investment in the US:

European investment in the US, on historic cost basis, was $1.8 trillion in 2011, 71% of total FDI in the US.

even in bad year 2011 Europe’s investment flows to the US were 7 times larger than to China.

In 2011 total assets of European affiliates in the US were an estimated $8.6 trillion. UK firms held $2.2 trillion; German firms $1.5 trillion; Swiss and French $1.3 trillion each; and Dutch firms $959 billion.

So, the "facts" and "hard evidence" suggest that transatlantic trade is booming; in particular, transatlantic investment is at dizzyingly-high levels - and all of that has taken place in the absence of ISDS.  The argument that TTIP "must have" ISDS in order to keep the investment flowing is not just wrong, but an insult to our intelligence.

Another area where I would like to see some facts and hard evidence involves claims about the alleged boost that TTIP will give to the EU and US economies.  I've debunked the 119bn euros figures regularly trotted out by the European Commission - but without explaining that this is a best-case result in 2027 - on a number of occasions.  I've also noted that there is criticism of the basic modelling technique used in the CEPR study paid for by the European Commission, something known as "Computable General Equilibrium" (CGE).  But I have recently come across a fascinating document from the European Court of Auditors, which describes itself as "Guardians of the EU's finances".  Here are a couple of things that august body has to say about the use of CGE models [.pdf]:

Both the Commission and the external consultants have also highlighted the inherent limitations of the CGE model:

(a) the CGE model can only be used for simulation purposes and not for forecasting and its simulation of long‑run effects is tenuous ;

(b) its somewhat tautological construction, i.e. all results are implicitly linked to the assumptions and calibra tion made

In other words, not only is it impossible to make forecasts with CGE models - let alone ones out to 2027 as the CEPR model does for TTIP - but the results are more or less built in to the assumptions of the model anyway.  That 119bn euros GDP boost cited endlessly by the European Commission is looking shakier than ever.  But there's actually an even more profound problem with the quantification of the claimed benefits of TTIP.  These are explored in a brilliant blog post by Martin Whitlock, whose analysis of TTIP I have cited before. 

The post is entitled 'The E.U. needs to learn the true meaning of "wealth" ', and Whitlock begins by referring to recent moves by the new European Commission:

Reports emerging from the European Commission last Thursday suggest that two key environmental proposals may be dropped from its programme. The object is to reduce the number of regulations with which businesses must comply.

If true, the associated losses could be considerable. The Clean Air package could deliver “monetised air quality benefits” of up to €151 billion per year by 2025, according to the E.U.s impact assessment. The Circular Economy package, which is focused on recycling, offers net savings to businesses of a staggering €604 billion through “resource efficiency”. To put that in context, the controversial Transatlantic Trade and Investment Partnership (TTIP) promises a boost to E.U. GDP of €120 billion by 2027 in the best case scenario.

Why would the Commission want to drop widely-supported proposals for clean air and recycling worth a potential €755 billion between them, while pursuing a controversial trade deal worth €120 billion at best? The answer lies in the provenance of those numbers, all of which are measuring different things.

His post then goes on to analyse this situation, and shows how much of the problem is that the debate around TTIP tends to focus selectively on a few misleading numbers - like 119bn euros.  Doing so ignores the broader context - and the availability of other, rather different, solutions:

A clean environment ... provides direct social benefits for everybody. The additional costs incurred by business will be repaid in spades by improvements in quality of life and human wellbeing. In this scenario, corporate profits may grow less quickly, but the totality of human wealth has greater potential for sustained increase in the longer term.

Whitlock concludes:

If the E.U. is keen to assert leadership on these issues, it could do worse than reflect upon what “wealth” really means for its 500 million citizens. Higher corporate profits extracted from an increasingly “flexible” labour market is probably not the answer to this question. Among possible alternatives: clean air to breathe; an affordable place to live; a fair share in the wealth that society produces and the time to enjoy it. All things that GDP can’t measure and which form no part of what  "economic growth" currently means.

That's a truly profound reflection that the European Commission should really take to its heart - but won't.

Full list of previous TTIP Updates.

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TTIP Update XLIV

The TTIP negotiations have started in earnest - before, meetings were largely preliminary, aimed at establishing the general positions of both the EU and US.  And yet, curiously, very little seems to be happening, at least publicly.  The next official round is not until early February next year, although it seems likely that informal meetings are still taking place behind closed doors. 

One reason for this hiatus is that there has been a change at the top.  Karel De Gucht has relinquished his post, which has been taken by the Swede Cecilia Malmström.  She is adopting a very different style, not least in terms of her attitude to the public.  Faced by the growing scepticism about TTIP's benefits, and anger over its complete lack of any meaningful transparency, Malmström has taken a conciliatory approach, promising more openness, some of which has now been announced.

But Malmström is still trotting out the same old misinformation about TTIP.  In a recent opinion piece she published in the Frankfurter Allgemeine Zeitung, the paragraph about ISDS is particularly pernicious.  Malmström says that European member states have signed a total of 1400 agreements that include ISDS; this is presumably to "prove" that ISDS is completely normal and totally harmless.  Neither is true.

Those 1400 agreements were overwhelmingly with developing nations.  The ISDS clauses were there to protect European investments in countries where the judicial systems were perhaps less than fair and reliable.  In a sense, these were one-way ISDS chapters, since companies from those emerging nations almost never invested in Europe, and thus were unable to avail themselves of the ability to sue for alleged expropriation there - that's why European nations have rarely been sued under these trade agreements.

Moreover, just seven of those 1400 agreements were with the US.  The countries involved were former Soviet states, plus Poland.  Even though in retrospect the terms of those agreements were pretty bad, they looked good as a way of escaping the clutches of Russia, and of encouraging the US to support the countries signing them.  Like the other ISDS chapters with developing countries, they are unrepresentative of what will happen with TTIP. 

For a start, US investment in those ex-Warsaw Pact countries is relatively low, which means the opportunities for it to use ISDS clauses are very limited.  Compare that with the whole of the EU, where there are around 50,000 subsidiaries of US companies, representing very substantial investments, and you can see that the risks of the EU or a member state being sued under ISDS in TTIP are vastly greater than was the case for those 7 earlier examples.  So Malmström's claim that ISDS wasn't a problem then, and so won't be a problem now, is simply false.

She then goes to admit that the current ISDS chapters are problematic, but that the EU has already addressed that objection by reforming ISDS in CETA, the trade agreement with Canada.  Specifically, she claims that in CETA:

Nations always have the freedom to decide about health systems, minimum wages and environmental protection.

That sounds good, but when you analyse the detailed wording of CETA's ISDS provisions, as the Canadian Centre for Policy Alternatives has done in its excellent, in-depth exploration of the final text, "Making Sense of CETA", this is what you find is actually the case as regards that supposedly strengthened "right to regulate":

The ‘right to regulate’ is mentioned three times in the agreement. In the preamble, the parties simply ‘recognize’ that the Ceta protects the right to regulate (“recognizing that the provisions of this Agreement preserve the right to regulate...”), yet the text fails to clearly and unequivocally confirm this right, especially in the investment chapter. The other mentions are to be found in the labour and environment chapters, so that, in effect, the Ceta shields the right to regulate from any international obligations to protect labour or the environment but not from all the detailed obligations in the investment chapter. Also in the environment chapter, the right to regulate is limited by formulations which require environmental policies to be implemented “in a manner consistent with the multilateral environmental agreements to which they are a party and with this Agreement,” meaning that environmental policies have to be consistent with the Ceta - not the other way round.

As that makes clear, far from protecting the EU's "freedom to decide" in the environmental sphere, as  Malmström claims, CETA actually imposes new constraints on governments.  The Canadian Centre for Policy Alternatives also points out that CETA is worse than earlier agreements in the way that the so-called "fair and equitable treatment" clause is framed.  This does not inspire confidence for TTIP, since we know from the consultation that the ISDS chapter will be modelled on the earlier agreement.

Even if it weren't, CETA's ISDS will be a disaster for Europe if it is ratified - something that is fortunately still a long way off.  That's because of the following:

The Ceta definition of ‘investment’ and ‘investor’ are overly broad and far beyond what would be advisable from a regulatory or public interest perspective. The Ceta defines an ‘investment’ as, “Every kind of asset that an investor owns or controls, directly or indirectly, that has the characteristics of an investment.” It defines an ‘investor’ as: “a Party, a natural person or an enterprise of a Party, other than a branch or a representative office, that seeks to make, is making or has made an investment in the territory of the other Party. For the purposes of this definition an ‘enterprise of a Party’ is: (a) an enter prise that is constituted or organised under the laws of that Party and has substantial business activities in the territory of that Party”). The reference to ‘substantial business activities’ is not enough to pre vent ‘treaty shopping.’ For example, U.S. investors in Canada would be able to use the C eta investment provisions and ISDS to challenge European state measures.

There's another trade agreement that the EU has recently finalised (but not ratified) that has exactly the same problem.  It's with Singapore, and the dangers of its ISDS chapter are analysed in an important post from the FFII.  If, like me, you don't know much about the EUSFTA, as it is know, this is a good place to start.  Here are a couple of the key issues:

1. The agreement creates a lock-in. Unlike most investment agreements ratified by European countries, it is not a stand-alone investment treaty, from which parties can withdraw. The investment chapter is part of a trade agreement, from which it is near impossible to withdraw.

2. The text lacks basic institutional safeguards for independence, creates perverse incentives and does not observe the separation of powers.

Expanding on the last point:

No institutional safeguards for independence

The text lacks basic institutional safeguards for independence: tenure, prohibitions on outside remuneration by the arbitrator and neutral appointment of arbitrators.

Perverse incentives

Arbitrators are paid for their task at least 3000 US dollar a day. This creates perverse incentives: accepting frivolous cases, letting cases drag on, letting the only party that can initiate cases (foreign investors) win to stimulate more cases, pleasing the officials who can appoint arbitrators.

No separation of powers

Both the claimants and the executive have a 50% influence on the make-up of [ISDS] tribunals. In a [national] court neither the claimant nor the executive has an influence on appointments, as both parties are not neutral.

A government may dislike a law by the former legislative and appoint an arbitrator accordingly. Only independent courts should decide on constitutional matters and questions of law.

It's that last point that remains the central problem with ISDS in TTIP: it effectively allows corporations to attack any legislation that affects their future profits, even if it has been passed by governments with an explicit mandate from the public.  Signing up to any treaty - be it CETA, EUSFTA or TTIP - that contains ISDS is thus nothing less than a fundamental betrayal of European democracy.

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TTIP Update XLIII

On Monday, I attended an interesting meeting at the Heinrich Böll Stiftung, in Berlin, with the intriguing title of "re:negotiate (ttip)".  This was valuable for two reasons.  First, because I had a chance to hear the arguments advanced by senior figures in the pro-TTIP world (surprisingly weak, even after all this time), and secondly, because I was asked to talk about "TTIP and global data transfer".  That's not something I've written much about here, so this gives me an opportunity to set down what I learned as I prepared for my session in Berlin.

The official negotiating mandate from the European Commission [.pdf], released recently (but very belatedly), does not mention words like "e-commerce, electronic services, telecommunications providers, cloud computing, data protection" at all, which is pretty extraordinary given their importance.  However, the section covering Trade in Services states:

The aim of negotiations on trade in services will be to bind the existing autonomous level of liberalisation of both Parties at the highest level of liberalisatio n captured in existing FTAs, in line with Article V of GATS, covering substantially all sectors and all modes of supply, while achieving new market access by tackling remaining long - standing market access barriers, recognising the sensitive nature of certa in sectors.

"GATS" is the overarching General Agreement on Trade in Services   The above paragraph would therefore seem to require that all kinds of e-commerce and online services should be covered by TTIP.  The Commission's mandate makes another reference to GATS here:

The [TTIP] Agreement will not preclude the enforcement of excep tions on the supply of services justifiable under the relevant WTO rules (Articles XIV and XIVbis GATS).

That's crucially important, because Article XIV includes the following exception:

nothing in this Agreement shall be construed to prevent the adoption or enforcement by any Member of measures:

(c)      necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Agreement including those relating to:

(ii)     the protection of the privacy of individuals in relation to the processing and dissemination of personal data and the protection of confidentiality of individual records and accounts;

That seems to provide the basis for the following statement in the European Commission's TTIP FAQ:

Will TTIP mean US data privacy standards prevailing over or undermining EU standards on the same?

No.  The EU and US have long since recognised that we each regulate data privacy in a different way.  The TTIP negotiations are not the right place to address these differences though.  We have already developed suitable ways of handling transatlantic data flows - for example, the Safe Harbour Agreement.  In addition, we are currently in talks with the US on access to data by enforcement authorities.  The aim is to get an 'Umbrella Agreement' on data protection to strengthen our joint efforts to combat terrorism and serious crime.  These talks will not be affected by the TTIP.

Of course, the Safe Harbour Agreement is a joke.  It basically lets US companies take personal data out of the EU, and do what they like with it by "self-certifying" that they are jolly nice people, and that they wouldn't dream of doing anything nasty with all our data, oh no, sir.  But thanks to Edward Snowden, we now know that once the data is out of the EU and across in the US, the NSA can and do access it freely - which is why the European Parliament's LIBE committee called for Safe Harbour to be suspended.

Leaving that big issue aside, there remains a central question: how exactly will data flows be handled in TTIP?  Despite the soothing words from the European Commission, it is by no means clear that European privacy will be preserved.  That's evident thanks to a US Bill that was proposed last year.  It has the significant title "Digital Trade Act of 2013", and it would have required the US negotiators in all future trade agreements to insist on a number of key demands:

It shall be a negotiating principle of the United States in negotiations for a bilateral, plurilateral, or multilateral agreement, and in multi-stakeholder fora, to seek the inclusion of binding and enforceable provisions that promote and enhance Internet-enabled commerce and digital trade, including provisions--

(1) preventing or eliminating barriers to the movement of electronic information across borders, including by encouraging interoperability of data protection regimes and eliminating barriers to accessing, processing, transferring, or storing information;

(2) ensuring transparency in measures affecting the free flow of information within and across borders;

...

(4) prohibiting measures that condition market access or other commercial benefits on localization of data, infrastructure, or investment;

(5) prohibiting any country from imposing measures that require an entity to use computing infrastructure or services in that country or otherwise require an entity to access, process, transfer, or store data in the territory of that country;

Those last two are absolutely key, since they would forbid any country that has a trade agreement with the US from passing laws that require local storage or processing of data. Even though the Bill was not passed, all the indications are that the US negotiators will demand precisely these provisions in TTIP.  That's a problem, because one way to improve the privacy of EU citizens would be to require that their personal data is stored and processed in the EU, and to forbid it being sent abroad. 

Despite what companies like Google and Facebook would have us believe, that wouldn't stop them providing their services here in the EU.  It would simply mean that all EU personal data would be held and processed in the EU, with other data necessary for the services being brought in from the US, say, rather than the other way around.  The Internet's symmetry makes that trivially simple, so to claim that it is impossible to work under this conditions is absurd.

In cases where personal information like physical addresses needs to be sent outside the EU so as to allow the delivery of goods, say, such information could be provided by using Vendor Relationship Management (VRM) systems, that allow users to retain full control of their personal data, while granting highly specific access to parts of it.  Indeed, developing VRM is a huge opportunity for the EU, and should be actively promoted irrespective of its usefulness in the context of TTIP.

Another meeting on TTIP took place yesterday, organised by the S&D group in the European Parliament.  That party's position is absolutely crucial for TTIP: without its support, TTIP will probably not be passed.  So it was no surprise that the new Commissioner for Trade, Cecilia Malmström, appeared here and gave her first official statement on the trade agreement.

Actually, it's stretching it to call it a "statement", because that would imply it had any content.  Instead, it was an extended set of comforting platitudes that boiled down to the same kind of self-certification used in the Safe Harbour agreement.  In other words, it was little more than empty promises that everything would be OK, just don't worry your pretty little heads about it.

One of the most worrisome parts came in the brief and superficial questions and answers that followed her words.  In it,  Malmström tried to allay growing fears about ISDS - which the French government has said it will not accept in TTIP - by pointing to the recently-concluded CETA agreement with Canada.  She claimed that the new and improved ISDS chapter there shows, once more, that there was nothing to worry about, etc. etc.

Of course, ISDS is such a technical area that is hard for most of us to evaluate that claim.  Fortunately, the indispensable Corporate Europe Observatory has carried out a detailed analysis of ISDS in CETA, and found that far from addressing the problems, it actually makes them worse:

In response to these widespread concerns the European Commission and the Canadian government have become increasingly defensive, and have begun a misleading propaganda drive. Their strategy: to appease the public by downplaying the risks of investment arbitration and to divert attention from the fundamental problems of the system by focusing on cosmetic reforms.

But a closer look at these “reforms” in the final CETA text (see Annex 2) shows that they will not “prevent any abuse of the investment protection rules and investor-state dispute settlement systems,” as the European Commission claims. On the contrary, CETA’s investor rights are arguably even more expansive than those in agreements such as NAFTA – most notably by protecting investors’ “legitimate expectations” under the so-called “fair and equitable treatment” clause and on investor-state disputes with regard to financial services (see Annexes 1 and 2). This is not surprising: the “reforms” are an echo chamber of what the business community has proposed to re-legitimise investor-state arbitration while leaving its problematic core intact.

The Annexes referred to provide detailed rebuttals in non-technical language of claims that ISDS has been improved in CETA.  Here's a sample. First, what the European Commissions claims:

Final award: A tribunal can award “only” monetary damages or restitution of property (Chapter 10, Article X.36). According to the EU this means that an order of a tribunal “cannot lead to the repeal of a measure adopted by Parliaments in the Union, a Member State or Canada.”

And here's what that actually means in practice:

This won’t stop governments from “voluntarily” repealing measures when a major lawsuit has been filed or threatened by a deep-pocketed company. Examples of such regulatory chill include the watering down of environmental controls for a coal-fired power plant when Germany settled a claim by Swedish energy company Vattenfall (see Box 2 on page 6) and New Zealand’s announcement that it will delay its plain-tobacco-packaging legislation until after Philip Morris’ claim against Australia’s anti-smoking rules has been resolved. This chilling effect on government regulation is arguably the main function of the global investment regime.

This latest report from Corporate Europe Observatory is an important contribution in the fight against the misleading comments being made by pro-TTIP politicians, both at the European and national levels.  They know that ISDS is in trouble as the public find out more about it, and are trying to fob people off with the promise that things will be better in TTIP, building on the claimed improvements present in CETA.

But there are no real improvements, just some textual fig leaves to give the appearance that concerns have been addressed.  If the European Commission and pro-TTIP politicians like David Cameron really want to save TTIP from massive rejection by the European public - the Stop TTIP petition has now reached 912,000 signatures - the only way to do that is to remove ISDS from TTIP, CETA and the new EU-Singapore free trade agreement completely.  Nothing else will do.

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