Please Write to Your MEPs About Next Week's Critical - and Final - CETA Vote

Next Wednesday, the European Parliament will have its final vote on the Comprehensive Economic and Trade Agreement, or CETA. If you were hoping to influence your UK MP on this, it's too late: last week, the government sneaked through a vote on CETA without anyone noticing.  It passed, of course, but given the absence of real democracy - or an opposition party - in the UK, that's no surprise.

But there is still a chance to stop it in the European Parliament by writing to your MEP, and asking them to vote against ratification next week.  You can contact your MEP using the wonderful free service WriteToThem.  Here's what I've sent to mine:

I am writing to you to ask you to vote against CETA ratification next week, because it has minimal benefits, and a great many risks that have not been estimated, but are likely to be large.

Despite vague claims to the contrary, CETA offers almost no benefits for the EU.  According to the joint study commissioned by the EU and Canada  (http://trade.ec.europa.eu/doclib/docs/2008/october/tradoc_141032.pdf): "The annual real income gain by the year 2014, compared to the baseline scenario, would be approximately €11.6 billion for the EU (representing 0.08% of EU GDP)".

The study's title is "Assessing the costs and benefits of a closer EU-Canada economic partnership", but it offers no formal estimate of the costs associated with CETA.  This is an extraordinary deficiency: even the smallest business would carefully weigh up the costs and the benefits before agreeing a deal.  And yet the European Parliament is being asked to ratify CETA without being told the true costs.

These are likely to be high in many areas.  For example, the "new" Investment Court System (ICS) will open up the EU to being sued by thousands of US companies that have subsidiaries in Canada.  For most member states, this will be the first time that US companies are able to use investor-state dispute settlement (ISDS) tribunals to claim millions – or even billions – of euros over laws and regulations which they claim harms their investments.  ISDS claims alone could wipe out the tiny €11.6 billion GDP gain that CETA is predicted to produce according to the official study.

Despite the fact that ICS is supposed to address the avowed problems with the current ISDS system, it actually fails to do this because it still gives companies a means to put pressure on governments to rescind laws, even if it cannot force them to do so.  Faced with potentially huge fines – one ISDS award was for $50 billion (http://www.shearman.com/en/services/practices/international-arbitration/yukos-arbitral-award) – governments are very likely to choose to withdraw regulations rather than pay out such vast sums.

It is also worth bearing in mind that a 2014 EU consultation on ISDS drew an unprecedented 145,000 negative responses calling for the system to be dropped from trade agreements (http://trade.ec.europa.eu/doclib/press/index.cfm?id=1234&title=Report-presented-today-Consultation-on-investment-protection-in-EU-US-trade-talks).  Making a few cosmetic changes and re-branding ISDS as ICS rides roughshod over the public's views on this important matter.  Moreover, there is no reason to include ISDS/ICS at all.  Canada's legal system is one of the fairest in the world, and so providing companies with additional privileges not available to governments or the public is simply unjustified.

There are further, more subtle problems with CETA.  For example, the regulatory chapter stipulates that parties have to ensure "that licensing and qualification procedures are as simple as possible and do not unduly complicate or delay the supply of a service or the pursuit of any other economic activity" (Article 12.3).  It is easy to foresee companies challenging requirements for public input, environmental assessments and archaeological studies as not being "as simple as possible".  Rather than face costly legal challenges, local authorities are likely to drop these important aspects of regulatory approval, resulting in a general lowering of standards as "economic activity" is placed above all other considerations.

More generally, CETA does not protect the environment as is sometimes claimed.  CETA’s environmental provisions cannot be enforced through trade sanctions or financial penalties if they are violated.  Something that cannot be enforced may possess symbolic – or marketing – value, but is of little practical use when it comes to protecting the environment.  This is another way in which CETA's true costs are being masked by exaggerated claims about its benefits.

Taken together with the fact that even the official econometric study was able to find only vanishingly small economic benefits, these many hidden problems and their unquantified costs underline why CETA is a bad deal for the environment, a bad deal for the public and a bad deal for the EU.  Even if its supporters claim otherwise, without any justification, I urge you and your colleagues in the European Parliament to vote against its ratification.

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 III

It's been fairly quiet on the TAFTA/TTIP front recently.  That's largely because Europe shuts down for its summer hols during August, and has only just got going again.  Unfortunately (for TAFTA/TTIP), the next round of negotiations has just been cancelled because the US administrations was busy being, er, not busy.  But as a consolation prize, we have a couple of documents from the European Commission on the subject of Investor-State Dispute Settlement (ISDS), which by a happy coincidence was the subject of my previous TTIP Update.

In fact, those two documents turns out to be pretty much the same, just re-worded slightly.  Both seek to defend the indefensible – that is, to convince people that ISDS is totally harmless, and nothing to worry our pretty heads about.  Above all, they want to reassure us that ISDS is definitely not this years' ACTA....

This comes through most clearly in the document entitled "Incorrect claims about investor-state dispute settlement" [pdf].  So let's have a look at some of the claims about the claims:

Claim: Investor-state dispute settlement subverts democracy by allowing companies to go outside national legal systems.

Response: Untrue! To get a sense of perspective on this question it is important to remember that the EU itself, as well as all but one of our Member States, Switzerland, the United States, Canada, Japan, South Korea and India - to name just a few - are all party to many agreements which provide for investor-state dispute settlement. These countries, and many more that also allow investor state dispute settlement, have healthy, vibrant democracies.

More specifically, relying on the national courts of the host country to enforce obligations in an investment agreement is not always easy.

Firstly, the investor may not want to bring an action against the host country in that country's courts because they might be biased or lack independence.

Secondly, investors might not be able to access the local courts in the host country. There are examples of cases where countries have expropriated foreign investors, not paid compensation and denied them access to local courts. In such situations, investors have nowhere to bring a claim, unless there is an investor-state dispute settlement provision in the investment agreement.

Thirdly, countries do not always incorporate the rules they sign up to in an investment agreement into their national laws. When this happens, even if investors have access to local courts, they may not be able to rely on the obligations the government has committed itself to in the agreement.

All that sounds plausible, until you remember that TTIP is an agreement between the EU and US, nobody else.  So let's look at the above "explanation" in that light:

"Firstly, the investor may not want to bring an action against the host country in that country's courts because they might be biased or lack independence. "

So the European Commission is saying that the US courts are biased or lack independence?  I do hope Karel de Gucht explains why when negotiating with his US counterparts.

"Secondly, investors might not be able to access the local courts in the host country. "

So here the European Commission is saying that investor might not be able to access local courts in the US? Sure, that happens all the time....

"Thirdly, countries do not always incorporate the rules they sign up to in an investment agreement into their national laws."

So now the Commission thinks that the US will go to the trouble of negotiating this huge treaty – and then just ignore its provisions?  Again, how plausible is that as an answer? 

And notice that none of the three points actually addresses the key issue, which is that ISDS does indeed allow companies to go outside national legal systems, and thus subvert established democratic institutions like the local courts. Basically, ISDS is inappropriate for developed nations like the EU and US.  Introducing it does one thing, and one thing only: provides foreign investors with extra rights over and above what ordinary citizens and domestic companies enjoy.

So let's look at another:

Claim: Investor-state allows companies to sue just because they might lose profits.

Response: Wrong! Companies cannot sue successfully just because their profits might be affected. They need to have a case. That means they need to prove that one or more of the investment protection standards, such as non-discrimination or protection against unlawful expropriation have not been respected. The fact that a government changes a law, which increases the costs for a given company, is not on its own, sufficient to bring a successful case in investor-state dispute settlement.

Although it's strictly speaking true that companies cannot sue *just* because they might lose profits, in practice that's pretty much what happens, because the so-called "investment protection standards" are so vague and easy to invoke.  Here's a good explanation from Public Citizen:

Investors and corporations can demand taxpayer compensation for policies that they allege as violating special “rights” granted to foreign investors by NAFTA-style FTAs. These “rights” are phrased in vague, broad language. Tribunals have increasingly interpreted these foreign investor “rights” to be far more expansive than those afforded to domestic firms, such as the “right” to a regulatory framework that conforms to a corporation’s “expectations.” This “right” has been interpreted to mean that governments should make no changes to regulatory policies once a foreign investment has been established.

Claim: Investor-state dispute settlement cases take place behind closed doors

Response: Many existing agreements do indeed provide, by default, that investment disputes are heard behind closed doors. The EU does not believe that is appropriate. We have championed transparency in international dispute settlement in general and in investor-state dispute settlement in particular. In future EU agreements, all submissions will be public, all hearings will be open, all decisions of the tribunal shall be public and interested parties will be able to make their views known.

So the response here is more along the lines of "well, yes, that's true, but we'd really like to change it."  Unfortunately, that overlooks the fact that it can't do that unilaterally: it needs to get the US to agree, and the current administration has shown itself a bigger enemy of transparency than any predecessor.  Bottom line: it's not going to happen.

Claim: Investor-state dispute settlement undermines public choices (e.g. Vattenfall challenging the German moratorium on nuclear power, Philip Morris challenging Australia’s plain packaging regime for cigarettes)

Response: It is important to note that only well-founded cases have a chance of being successful. The fact that a policy has been challenged does not mean that the challenge will be successful. The EU will negotiate in such a way so as to ensure that legislation reflecting legitimate public choices e.g. on the environment, cannot be undermined through investor-state dispute settlement.

Well, see comment above: the EU can negotiate until it's blue in the face, but if the US refuses to go along with the plan, then the situation remains the same.  And here's what currently happening: a wide range of health, safety and environmental regulations are being challenged through the ISDS mechanism:

foreign corporations have launched investor-state challenges against a wide array of consumer health and safety policies, environmental and land-use laws, government procurement decisions, regulatory permits, financial regulations and other public interest polices that they allege as undermining “expected future profits.”

Claim: Investor-state dispute settlement is biased in favour of investors – they can threaten to bring expensive cases against governments and so scare them away from policies that the investors do not like.

Response: There is little real world evidence that this is the case. UN statistics on investor state dispute settlement cases show that a majority of cases are decided in favour of the government (Of all the cases concluded by 2012, 42% found in favour of the State, 31% in favour of the investor and 27% were settled).

This is an absolutely key issue.  ISDS actions threaten to become the global version of patent trolls: by merely threatening to sue they can cause cautious governments to change their plans.  Notice how the European Commission quotes the figures for "all the cases concluded by 2012".  That conveniently bundles together all the early cases where tribunals did, indeed, tend to find for the State more often.  But unfortunately for the European Commission's argument, that's no longer the case.  Here's what the UN statistics have to say about 2012:

In 70% of the public decisions addressing the merits of the dispute, investors’ claims were accepted, at least in part.

Next:

Claim: Investor-state dispute settlement cases are decided by a small clique of lawyers, with considerable conflicts of interest, who seek to cream off public money.

Response: Like in any area of national or international law the number of true specialist lawyers in the field is not large. Some of these lawyers do combine roles as arbitrators in some disputes and advocates in others. This crossing over may create the risk of conflicts of interest.

In other words, this is also true, but we would like to change it (see above).

Finally, we have:

Claim: Investors should not be allowed to challenge governments directly in international law. Only governments should be able to act against each other, via state-to-state dispute settlement.

Response: It is investors who actually suffer the financial losses. Governments (including the EU) need to pursue the general interest, and that means that they have neither the time nor the resources to follow-up each individual alleged breach of the agreement.

The fact that governments (including the EU) have neither the time nor resources to deal with each alleged breach is precisely why ISDS is so pernicious: it forces governments (or the EU) to spend huge amounts of time and money dealing with claims made under it.  The fact that tribunals are finding increasingly often in favour of companies means that more cases will be brought, because the odds of succeeding are going up, especially if speculative funding is available.

And here's another reason why that growth in ISDS trolling is likely to happen: last year saw the largest award made by an ISDS tribunal – a cool $1.77 billion in damages.  And remember, that's money that the government concerned has to pay.  If ISDS is included in TAFTA/TTIP, the people who will end up footing the not inconsiderable bills will be you and me.

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TTIP Update II

As I noted in my first TTIP Update about the current negotiations between the EU and US over a massive trade agreement that is far from being only about trade, it is probably true that it will not include many of the more outrageous ideas found in ACTA last  year.  But that is not to say that TTIP does not threaten many key aspects of the Internet – just that the attack is much more subtle.

The problem is the inclusion of "investor-state dispute settlement" (ISDS).  This began as a perfectly reasonable attempt to ensure that investments in developing countries were not unlawfully expropriated by rogue governments.  The idea was that if such an event occurred, and the local government refused to compensate the investor, the latter had recourse to independent international courts that considered the case and awarded damages that could be levied against the government in question in other ways – for example, seizing their assets abroad.

Sadly, a sensible idea in one context has been seized upon by opportunists and applied in a context where it's quite inappropriate.  In particular, companies are using ISDS against governments in Western countries.  That's not necessary, because those countries already have extremely well-developed legal systems that allow the courts to consider allegations of expropriation by governments there.  But companies have realised that ISDS tribunals give them an amazingly powerful way to overrule a country's laws.  The following case illustrates how this works in practice.

It involves the US drug company Eli Lilly and Company, which has invoked the ISDS clause in the North American Free Trade Agreement signed between Canada and the US (and Mexico).  Here's the background:

Eli Lilly launched its NAFTA attack after Canadian courts invalidated Eli Lilly’s monopoly patent rights for an attention deficit hyperactivity disorder (ADHD) drug called Strattera. The Canadian courts did so after determining that Eli Lilly had presented insufficient evidence (a single study involving 22 patients) when filing for the patent to show that Strattera would deliver the long-term benefits promised by the company. While the $100 million NAFTA investor-state compensation demand relates to revocation of the Strattera patent, Eli Lilly makes clear in its formal “Notice of Intent” to Canada that it is not only challenging the invalidation of its particular patent, but Canada’s entire legal doctrine for determining an invention’s “utility” and, thus, a patent’s validity. While pushing for an entirely different patent standard, Eli Lilly, the fifth-largest U.S. pharmaceutical corporation, is demanding $100 million from Canadian taxpayers as compensation for Canada’s enforcement of its existing patent standards.

In fact, Eli Lilly has now upped the stakes and demanded $500 million "compensation".

It's worth exploring what is going on here.  Canadian courts have determined that Eli Lilly did not meet the required standard in order to be granted a patent.  This is not a question of an arbitrary, or capricious act by some third-world dictator, but the final decision of a sovereign nation's highest court.  However, Eli Lilly is unwilling to accept that decision, and has invoked the ISDS clause in NAFTA in an attempt to overturn the ruling and demand money.  In other words, ISDS allows companies both to sue entire nations, and to ignore their laws.

Incredible though that may seem, here's why that is possible, as explained in the long and extremely detailed post from Public Citizen on the topic, quoted above:

The system elevates foreign corporations to the level of sovereign governments, uniquely empowering them to skirt domestic laws and courts and privately enforce the terms of a public treaty by directly challenging governments’ public interest policies before foreign tribunals.

The tribunals deciding these cases are comprised of three private sector attorneys, unaccountable to any electorate. Many of the tribunalists rotate between serving as “judges” and bringing cases for corporations against governments. Such dual roles would be deemed unethical in most legal systems. In this “club” of international investment arbitrators, there are fifteen lawyers who have been involved in 55 percent of the total international investment cases known today. The tribunals operate behind closed doors, and there are no meaningful conflict of interest rules with respect to arbitrators’ relationships with, or investments in, the corporations whose cases they are deciding.

Tribunalists are paid by the hour, creating an incentive for cases to drag out endlessly. Governments are often ordered to pay for a share of tribunal costs even when cases are dismissed. Given that the average costs for such procedures total $8 million, the mere filing of a case can create a chilling effect on government policy, even if the government expects to win. (In one challenge against the Philippines, the government’s tribunal and legal costs alone topped $50 million.) If a tribunal rules against a challenged policy, there is no limit to the amount of money the tribunal can order the government to pay the foreign corporation. The cases cannot be appealed on the merits. Countries may file for an “annulment” for certain specific categories of tribunal “error.” Annulment claims are not heard by domestic courts, but are decided by another tribunal comprised of private sector attorneys.

Investors and corporations can demand taxpayer compensation for policies that they allege as violating special “rights” granted to foreign investors by NAFTA-style FTAs. These “rights” are phrased in vague, broad language. Tribunals have increasingly interpreted these foreign investor “rights” to be far more expansive than those afforded to domestic firms, such as the “right” to a regulatory framework that conforms to a corporation’s “expectations.” This “right” has been interpreted to mean that governments should make no changes to regulatory policies once a foreign investment has been established.


Claiming such expansive protections, foreign corporations have launched investor-state challenges against a wide array of consumer health and safety policies, environmental and land-use laws, government procurement decisions, regulatory permits, financial regulations and other public interest polices that they allege as undermining “expected future profits.”

It's important to note that last point: ISDS allows companies to claim for not just alleged past losses, but also supposed loss of "expected future profits".  These, moreover can be "caused" simply by a government passing legislation that happens to reduce a sector's future profits.  They can include something as laudable as strengthening environmental protection, since the extra expense of meeting those more stringent standards would naturaly reduce profits.  Even though this was carried out legally by the government concerned, and in order to protect public health, ISDS clauses would allow a company to sue for the "expropriation" of future profits caused by this move.

Now let's look at this from the point of view of open souce and the Internet.  As the case involving Eli Lilly shows, patents are already being contested using ISDS tribunals.  One obvious situation where this might affect open source is in the area of software patents.  As I have pointed out many times, the situation in Europe is rather anomalous here.  Although the European Patent Convention explicitly rejects software patents ("as such"), the EPO continues to issue them using various formal tricks.  That's why there is continuing pressure to confirm the invalid nature of software patents nationally and at a European level.

But let's suppose that under the current TTIP treaty, ISDS is brought in between the US and EU.  US software companies could then point out that affirming the invalidity of software patents granted by the EPO would obviously reduce the value of those patents.  They would therefore doubtless claim that the European Union or member nations had "expropriated" that value, and demand compensation, just as Eli Lilly has for a patent that Canada decided should not be granted.

With the threat of dozens of huge companies threatening to sue Europe over tens of thousands of software patents, the European Union might decide that the cost of "compensating" them for their "loss" would be simply too great, and thus ultimately acquiesce in the grant of software patents, even though this was being imposed upon them.

But it's not just in the area of patents that the EU could find its hands tied.  The same applies to copyright.  For example, there are various areas where more flexibilities might be introduced into copyright law.  US publishers might claim that these would cause their future profits to be diminished, and sue the EU or nation states for daring to make this move.  Again, the scope for making changes to copyright law in the EU and in invidivudal nations would be greatly reduced for fear that deep-pocketed companies would start suing over things they didn't like – whether or not it was good for Europe and its public.

Similarly, I could imagine inventive lawyers trying to argue that the lack of harsh penalties for unauthorised sharing of copyright material in Europe causes US companies to "lose" profits as a result.  This threat might be used to "encourage" EU lawmakers to pass precisely the kind of laws that were envisaged in ACTA: for example, criminalising even small-scale copyright infringement, and encouraging ISPs to pass on personal information.

Another approach might be to claim that any moves to adopting open standards, which would provide a level playing field for open source, would cause profits for existing incumbents to drop.  They could then invoke ISDS and demand "compensation" for any such move.  The same would be true for any preference given to open source in government procurement.

In this way, the actual or threatened complaints under ISDS clauses would push the EU to bring in precisely the worst ideas of ACTA, but without needing to specify them.  So negotiators can claim quite truthfully that there will be no attempt to bring in ACTA by the backdoor; instead, they will just leave that to ISDS, which gives US corporations a weapon far more powerful than anything envisaged in ACTA.

And if you think I am exaggerating the scale of the threat here, take a look at this official report on ISDS by UNCTAD, the United Nations Conference on Trade And Development:

The Issues Note reveals that 62 new cases were initiated in 2012, which constitutes the highest number of known ISDS claims ever filed in one year and confirms that foreign investors are increasingly resorting to investor-State arbitration.

Foreign investors challenged a broad range of government measures, including changes to domestic regulatory frameworks (with respect to gas, nuclear energy, the marketing of gold, and currency regulations), as well as measures relating to revocations of licences (in the mining, telecommunications and tourism sectors). Investors also took action on the grounds of alleged breaches of investment contracts, alleged irregularities in public tenders, withdrawals of previously granted subsidies (in the solar energy sector), and direct expropriations of investments.

By the end of 2012, the total number of known cases reached 518, and the total number of countries that have responded to one or more ISDS claims increased to 95. The overall number of concluded cases reached 244. Out of these, approximately 42 per cent were decided in favour of the State and 31 per cent in favour of the investor. Approximately 27 per cent of the cases were settled.


Two of the most chilling facts are the following:

2012 saw some notable developments, including:

The highest monetary award in the history of ISDS (US$1.77 billion) in Occidental v. Ecuador, a case that arose out of unilateral termination by the State of an oil contract; and

The first treaty-based ISDS proceeding where an arbitral tribunal affirmed its jurisdiction over a counterclaim that had been lodged by a respondent State against the investor.

Remember, those awards would have to be paid by the state – that is, the people – and the same is true if ISDS cases come to Europe: it will be you and me who must pay because somebody claims that their future profits have been harmed in some way. 

Despite the very high stakes – we are talking many billions of Euros here – few seem to be aware of the serious threat that ISDS represents to national and European sovereignty.  We urgently need to make people and politicians aware of what is going on here before the ISDS mechanism is enshrined in TTIP for companies to use to attack both open source and the Internet in new and frighteningly effective ways.

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The Rise and Fall of TTIP, As Told in 51 Updates

This year will be make or break for the Transatlantic Trade and Investment Partnership (TTIP).  It is already years behind its original, hopelessly-optimistic schedule, and is now running into immovable political events in the form of the US Presidential elections, and the general elections in Germany.  If TTIP isn't wrapped up this year, it is probably dead until whenever the next attempt to push through such a global takeover of democracy begins, as it surely will.

From July 2013 until April 2015 I wrote a series of irregular TTIP Updates, which charted the latest developments of the negotiations.  They form the most detailed description of how TTIP emerged and developed during the first two years of the negotiations.  Although superseded by more recent events, they nonetheless offer a historical record of what happened during that time, and may help people understand the strange beast that is TTIP somewhat better.

These Updates were published on Computerworld UK, which has a Web page with consolidated links to the updates.  Unfortunately, re-designs and other changes at the site have led to link-rot setting in.  Although the Computerworld UK page remains the main site for these Updates, I thought it would be useful - and prudent - to offer a mirror here on Open....

Below I have linked to the mirrored Updates, which appear as separate posts on the present blog.  Since I can't extract the final versions of the columns from the Computerworld UK site, I've used my local files.  These may differ slightly from the final, published versions - if there's anything major, I'll try to edit them at some stage.  Similarly, there may be odd typos that I have missed; please feel free to point them out in the comments so that I can fix them.

I should also warn readers that there are many broken links, especially to other Computerworld UK columns, whose URLs have all changed.  If I have time, I will try to fix the more important ones of these, but given that I probably won't have time, please don't hold your breath...

Although I am unlikely to write any more updates, I am most certainly going to keep covering TTIP during this crucial year - indeed, I intend to up my coverage considerably to reflect the crucial stage of the negotiations we have now reached.  I've already written a couple of big features on the topic for Ars Technica UK, which serve as introductions to this whole area for those coming to it for the first time, and as summaries of what has happened for those who are already familiar with the main issues.

The first, entitled "TTIP explained: The secretive US-EU treaty that undermines democracy", is a 6000-word backgrounder to the whole area.  The more recent "How EU nations are being sued for billions by foreign companies in secret tribunals" concentrates on perhaps the most controversial - and dangerous - aspect of TTIP, the so-called "investor-state dispute settlement" (ISDS) mechanism that essentially places companies above national laws by giving them special tribunals in which they can sue governments for alleged "indirect expropriation" of future profits.

If you don't know about this aspect - or about TTIP in general - this is a good place to start.  Once you find out what is proposed for TTIP, I am sure that you will be outraged, and hope that you will join me in trying to do something about it.

TTIP Update l

A review of the few details that emerged from the first round of negotiations, including an attempt by the European Commission to convince us that TAFTA/TTIP is not another ACTA.

TTIP Update ll

An introduction to investor-state dispute resolution (ISDS), and why its presence in TAFTA/TTIP is a grave threat to European sovereignty, open source and the Internet.

TTIP Update III

A point-by-point rebuttal of a document in which the European Commission tries to prove that the presence of investor-state dispute settlement (ISDS) in TTIP is not a problem.

TTIP Update IV

An exploration of how the public is kept in the dark over TAFTA/TTIP, and the dangerous asymmetries it contains.

TTIP Update V

A discussion of a major Wikileaks document discussing intellectual monopolies in TAFTA/TTIP’s sister agreement, TPP, and what it means for TTIP.

TTIP Update VI

An analysis of a leaked document outlining the European Commission’s communication strategy for TAFTA/TTIP, and a look at how disastrous other trade agreements like NAFTA and KORUS have been.

TTIP Update VII

Yet another, increasingly desperate attempt to justify the unjustifiable inclusion of ISDS in TAFTA/TTIP, and why the arguments simply don’t stand up to scrutiny.

TTIP Update VIII

Lifting the lid on how a new transatlantic “TTIP Regulatory Council” would bring in massive deregulation, with a consequent lowering of food, health and environmental standards in Europe.

TTIP Update IX

How an astonishing attack on Corporate Europe Observatory reveals a floundering European Commission increasingly concerned that it is losing control of the TAFTA/TTIP debate.

TTIP Update X

Another (failed) attack, this time by Karel De Gucht, the EU's trade commissioner, who laughably tries to claim that there is no lack of transparency in the TAFTA negotiations, and that it’s worth accepting the threats posed by ISDS.

TTIP Update XI

So it looks like TAFTA/TTIP is, in fact, ACTA by the backdoor – despite what Mr De Gucht has said...

TTIP Update XII

Why the US Fast Track bill guarantees that TAFTA's ISDS chapter will be one-sided and unfair for EU companies.

TTIP Update XIII

Big news: EU pulls ISDS to allow unprecedented public consultation; UK report says ISDS in TTIP would bring little or no benefit.

TTIP Update XIV

What new CETA leaks tell us about EU's plans to re-vamp ISDS - and why they aren’t enough to protect European sovereignty or democracy.

TTIP Update XV

There are growing calls to keep data protection out of TAFTA/TTIP – and to reject the agreement if the privacy of European citizens is not adequately protected.

TTIP Update XVI

More details emerge on ISDS provisions, and a rather ironic call for transparency from the paranoically opaque USTR.

TTIP Update XVII

Bad news, lots of leaks, plus debunking another misleading European Commission document.

TTIP Update XVIII

New leaks, new Web sites, a hidden threat from the “most-favoured nation” approach, and an astonishing claim that Germany wants ISDS out of TTIP.

TTIP Update XIX

A newly-discovered CETA bug shows why the European Commission needs transparency; also, why regulatory data must be opendata

TTIP Update XX

All about transparency in TTIP - or, rather, the almost complete lack of it; includes details of three phantom EU consultations I never heard about, and few took part in.

TTIP Update XXI

Why that best-case “ €119 bn” GDP boost to EU economy equates to just an extra cup of coffee every week.

TTIP Update XXII

ISDS attacks on EU nations have begun – and that’s before TTIP would make it even more likely and costly.

TTIP Update XXIII

Why the European Commission’s consultation on ISDS is a sham, and fails to provide the promised "draft".

TTIP Update XXIV

Looking at important research that finds even more holes in the European Commission’s TTIP justifications.

TTIP Update XXV

A report on a desperate high-level attempt by the US and EU to counter German scepticism, plus the video & slides of my re:publica 14 talk about why TTIP's numbers just don’t add up.

 TTIP Update XXVI

An action-packed update that includes fracking, water cannons and cosmetics – but still very little transparency.

TTIP Update XXVII

In which the European Commission’s misleading use of figures from its economic study is criticised, as is the study itself.

TTIP Update XXVIII

A major leak of EU services offer; an introduction to the top-secret TISA; and how the US it trying to buy love for TAFTA/TTIP.

TTIP Update XXIX

More on the secretive TISA negotiations; insight into the US's anti-transparency plans; and how the public is too stupid to understand TTIP.

TTIP Update XXX

More on the huge dangers of ISDS - and lots of help for responding to the European Commission’s travesty of a consultation on the same topic.

TTIP Update XXXI

Designed to be the final information on responding to the European Commission’s ISDS consultation, but we now learn the deadline has been extended because of huge numbers replying.

TTIP Update XXXII

A couple of interesting leaks, and a round-up of how TTIP is starting to enter the mainstream.

TTIP Update XXXIII

In the wake of the incredible 150,000 responses to the ISDS consultation, the revolt against this idea spreads to the highest reaches of the EU.

TTIP Update XXXIV

ISDS drama from Germany again, and how mutual recognition will undermine EU food and animal protection standards.

TTIP Update XXXV

The shape of multi-billion-pound ISDS lawsuits to come; a leak of the complete CETA agreement; and the threats lurking in US "certification".

TTIP Update XXXVI

Lots of news about CETA and ISDS, plus another slap in the face of the EU public.

TTIP Update XXXVII

Lots about CETA, and exciting plans for a European Citizens’ Initiative to let people make their views on TTIP known
TTIP Update XXXVIII

Slaps in the face of the EU public: a refusal to allow the ECI, and a "celebration" of CETA. Plus bad signs from the grilling of the new EU trade commissioner.

TTIP Update XXXIX

Nearly 50% of the claimed trade boost consists of swapping cars across the Atlantic.

TTIP Update XL

Rumours swirl that ISDS will come out of TTIP; even if it does, it's still in CETA and the new EU-Singapore free trade agreements.

TTIP Update XLI

Yet more sound and fury on the topic of ISDS in TTIP, but things remain as clear as mud.

TTIP Update XLII

Devasting new independent economic analysis of TTIP's likely effects on EU shows net losses in terms of GDP and 600,000 job losses.

TTIP Update XLIII

The problem of data flows, and why CETA's ISDS is a disaster.

TTIP Update XLIV

ISDS dangers in CETA and TTIP - and in the EU Singapore FTA.

TTIP Update XLV

They want "facts" and "hard evidence" about TTIP? Here they are...

TTIP Update XLVI

There are *already* more than €30 billion worth of ISDS claims against EU nations.

TTIP Update XLVII

The belated provision of improved transparency shows that public advocacy works.

TTIP Update XLVIII

The people have spoken: ISDS must go - no ifs, buts or maybes.

TTIP Update XLIX

New leaks show how transatlantic regulatory bodies will undermine EU and national sovereignty.

TTIP Update L
Should the views of a three-person tribunal take precedence over society's wishes?

TTIP Update LI

As resistance grows, TTIP is increasingly in trouble.

TTIP explained: The secretive US-EU treaty that undermines democracy

The Transatlantic Trade and Investment Partnership (TTIP), sometimes known as the Transatlantic Free Trade Agreement (TAFTA), is currently being negotiated behind closed doors by the European Union and the US. If it is successfully completed, it will be the biggest trade agreement in history. But TTIP is not just something of interest to export businesses: it will affect most areas of everyday life, including the online world.

Opponents fear it could undermine many of Europe's hard-won laws protecting online privacy, health, safety and the environment, even democracy itself. For example, it could effectively place US investors in the EU above the law by allowing companies to claim compensation from an EU country when it brings in a regulation that allegedly harms their investments—and for EU companies to attack US laws in the same way.

Those far-reaching effects flow from the fact that TTIP is not a traditional trade agreement, which generally seeks to lower tariffs between nations so as to increase trade between them. The tariffs between the US and EU are already very low—under 3%—so there is little scope to boost transatlantic trade significantly by removing the remaining tariffs completely.

Instead, TTIP aims to go beyond tariffs, and to remove what it calls "non-tariff barriers." These refer to the different ways of doing things which make it hard for a company to sell exactly the same product on both sides of the Atlantic. Typically, different national regulations require different kinds of tests and product information, which leads to a duplication of effort that adds costs and delays to making products available in the other market.

TTIP's stated aim to smooth away those NTBs is good news for the companies, but not so much for pesky humans. What are classed as "barriers" include things like regulations that protect the environment or the online privacy of Europeans. The threat to diminish or remove them in the name of transatlantic "harmonisation", has turned the traditionally rather dull area of trade agreements into the most important focus for civil action in years, galvanizing a broad spectrum of groups on both sides of the Atlantic that see TTIP not as a potential boon, but a bane.

Read the rest of this 6,376-word article on Ars Technica UK.

The European Commission's Great TTIP Betrayal

When the European Commission was laying the foundations for the Transatlantic Trade and Investment Partnership - TTIP, also known as TAFTA by analogy with NAFTA - it was doubtless hoping that the public would ignore it, just as it had ignored countless other boring trade agreements. But of course TTIP is not principally a trade agreement: it aims to go far beyond "merely" liberalising trade by attacking "behind the border" barriers.

These "non-tariff barriers" - NTBs - are what you and I call health and safety regulations, environmental protection, labour laws etc. They are all things that make life a more pleasant place - especially in Europe, where they are particularly strong; but they are also things that decrease the profits of companies that must obey them. TTIP is about removing as many of these as possible, so as to boost corporate profits.

Of course, that's not how the European Commission can frame things. Indeed, after the public began to wake up to what TTIP really meant, the commissioner responsible for leading the TTIP negotiations, Karel De Gucht, was forced to make high-profile statements denying that the agreement would lower standards:

Let me be clear on this very important point: we are not lowering standards in TTIP. Our standards on consumer protection, on the environment, on data protection and on food are not up for negotiation. There is no “give and take” on standards in TTIP.

Simple logic tells us that this can't possibly be true. If two completely different regulatory systems are to be brought together - the avowed aim of TTIP - there are only three possibilities. Either the side with the higher standards levels down; the side with the lower standards levels up; or there is mutual recognition of each other's standards. The US has clearly stated that it is not prepared to level up - it won't accept EU bans on chlorine-washed chickens, hormone beef or GMOs.


Mutual recognition, although apparently different, is in fact identical to levelling down: if both regulations are acceptable, manufacturers working to the higher set will be at a disadvantage commercially. They will therefore either relocate their factories to the country with the lower standards, which are cheaper to implement, or lobby for the higher standards to be levelled down, threatening either to leave the country, or shut down. Politicians always give in to this kind of blackmail, so EU standards would inevitably be lowered to those of the US as a result of mutual recognition.


But it has become increasingly clear that there is another way for the European Commission to circumvent its own promises that TTIP will not lower standards. The trick here is that the European Commission will lower standards *before* TTIP; so technically speaking it is not TTIP that brings about that dilution - it occurred "independently". Thus the Commission will be able to put its hand on its heart and swear blind that it kept its word not to sell out EU standards in TTIP, while at the same time changing the regulatory context in such a way that the US will be able to export things that are currently banned by strict EU legislations.


We're seeing more and more examples of this. Here, for example, is how new GMO regulations will allow US companies to bring in GM food:

Genetically modified crops could be grown in the UK from next year after the EU ministers relaxed laws on the controversial farming method.

Maize that has been engineered to resist weedkiller is the first to be approved but all commercial GM crops will not be given the green light for another 10 years.

Owen Patterson, the Environment Secretary, has long supported the introduction of GM crops in the UK and voted in favour of the changes on Thursday.

He said: “This is a real step forward in unblocking the dysfunctional EU process for approving GM crops, which is currently letting down our farmers and stopping scientific development.

Here's how the EU's Fuel Quality Directive, designed to discourage the use of highly-polluting carbon fuels, is being drastically weakened [.pdf]:

Since its inception in 2009, the Fuel Quality Directive (FQD), a European Union regulation aimed at reducing the climate impact of transport fuels, has been attacked by powerful lobby interests that do not want the EU to take action to curtail the use of particularly greenhouse gas intensive fossil fuels.

...

these attempts to weaken this landmark climate policy seem to have been successful. If recent media reports are correct, the European Commission has decided to significantly weaken the FQD and align its regulatory standards with the wishes of the oil industry, the US trade negotiators [for TTIP] and the Canadian government. Compared to a previous proposal from 2011, it would be considerably less effective in cleaning up Europe’s transport fuels and preventing the most climate polluting fuels, including tar sands, from entering Europe.

Most recently, we have learned that the European Commission is preparing to allow endocrine disruptors in pesticides - another key demand from the US side in TTIP. Unfortunately, the source for this information, Inside US Trade, is behind a paywall, so I can't give a link, but will just quote a couple of key passages:

One of the options proposed by the commission in a June 17 "roadmap" is to shift from the current EU approach of banning the use of all endocrine disruptors in pesticides toward a model that could allow them to be used as long as certain steps are taken to mitigate the risk. 

This risk assessment-based model is favored by the U.S. and EU pesticide industries and is the approach employed under the U.S. Environmental Protection Agency's "Endocrine Disruptor Screening Program." Such a model seeks to evaluate both whether a hazard exists and if it can be mitigated by limiting exposure, in order to allow the marketing of an otherwise dangerous product.

As you can see, this amounts to abandoning the EU's Precautionary Principle, and adopting the completely different risk-based approach of the US. Aside from the fact that this shows that the European Commission's promises that standards would not fall, that the EU would not be forced to adopt US approaches, and that public health in Europe would always be safeguarded, were worthless, this also disregards the EU's Treaty of Lisbon, which explicitly states:

Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.

What's particularly interesting about the latest move by the European Commission is that the industry sources in the article quoted above point out that it represents a move to a "science-based" approach, something they have been demanding (note, too, that Owen Paterson also spoke of "scientific development" in the passage quoted above.) 

This is part of consistent campaign to paint the Precautionary Principle as "unscientific". In fact, this reframing is precisely what I predicted would happen a year ago. The key point is that "science" in the abstract does not exist: there is a continuum of good science and bad science - where the latter often includes experiments carried out by corporate scientists who miraculously produce results that match their paymaster's desires.

It's not just me saying this. Yesterday the following article appeared in the Guardian on the subject of pesticide research - the area that the European Commission wants to overhaul radically, moving towards a "science-based" approach:

Criticial future research on the plight of bees risks being tainted by corporate funding, according to a report from MPs published on Monday. Pollinators play a vital role in fertilising three-quarters of all food crops but have declined due to loss of habitat, disease and pesticide use. New scientific research forms a key part of the government’s plan to boost pollinators but will be funded by pesticide manufacturers.

That is, as I pointed out, when companies pay for research, they tend to get the answers they want.

“When it comes to research on pesticides, the Department of Environment, Food and Rural Affairs (Defra) is content to let the manufacturers fund the work,” said EAC chair Joan Walley. “This testifies to a loss of environmental protection capacity in the department responsible for it. If the research is to command public confidence, independent controls need to be maintained at every step. Unlike other research funded by pesticide companies, these studies also need to be peer-reviewed and published in full”.

This again is something that I advocated last year. If companies want us to take their results seriously - and in principle I don't have problem with that, provide the science is sound and independent - then they must publish their findings in peer-reviewed journals and, crucially, publish *all* of their results as open data, for anyone to check and explore further. If they won't do that, we will know that they have something to hide.

In the meanwhile, expect the European Commission to start invoking "science-based" approaches to policy more and more, and that these strangely always mean that the European Union should lower its standards to those of the US, which already uses this "tainted" approach.

But however the Commission wants to package this massive shift, and whatever lipstick it puts on this particular pig (sorry, pigs, nothing personal), this is a fundamental betrayal at the very deepest level. It is truly disgraceful - not to mention ungrateful - that at every turn the European Commission seems to prefer to serve US corporations rather than the European public that pays the Commissioners' not-inconsiderable salaries. It's another reason why the whole of TTIP - not just the already terminal ISDS - must be rejected.

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

In Response To Growing Protests, EU Pulls Corporate Sovereignty Chapter From TAFTA/TTIP To Allow For Public Consultation

Here on Techdirt, we've been writing about the dangers of corporate sovereignty for a while. In recent months, more and more people and organizations have pointed out that the plan to include an investor-state dispute settlement (ISDS) in the TAFTA/TTIP agreement currently being negotiated is fraught with dangers -- and also completely unnecessary given the fair and efficient legal systems that exist on both sides of the Atlantic. It seems that this chorus of disapproval has finally been noticed, in Brussels at least: 

On Techdirt.

Why Exactly Do We Need To 'Protect' US And EU Foreign Investments Through TAFTA/TTIP Anyway?

Techdirt has already examined the issue of corporate sovereignty many times over the past year, as it has emerged as one of the most problematic areas of both TPP and TAFTA/TTIP. A fine article by Simon Lester of the Cato Institute examines a hidden assumption in these negotiations: that an investor-state dispute settlement (ISDS) mechanism is needed at all. 

On Techdirt.

Does The Fast Track Authority Bill Guarantee That Corporate Sovereignty Will Be One-Sided And Unfair?

Yesterday, Mike reported on the introduction of the "fast track authority" bill in the Senate, and pointed out some of its most troubling aspects. But it's a long document -- over 100 pages -- and hidden away within it are some other areas that raise important questions. Take, for example, Section 8, which concerns sovereignty: 

On Techdirt.

European Commission Admits It Plans To Put 'Corporate Christmas List' Of IP Demands Into TAFTA/TTIP

A few months ago, we quoted the EU trade commissioner Karel De Gucht, who is responsible for handling the TAFTA/TTIP negotiations on the European side, as saying: 

On Techdirt.

TTIP Update VII

In my last TTIP update, I wrote about a fascinating document that revealed the European Commission's PR strategy for handling TAFTA/TTIP. It was already possible to detect there a growing sense of panic among the Commission - a fear that they were losing control of the "narrative", and that remedial action was needed.

On Open Enterprise blog.

TTIP Updates - The Glyn Moody blogs

At the start of 2012 I began a series of posts about the Anti-Counterfeiting Trade Agreement - ACTA. These took the form of updates on how ACTA was developing. I did this because I had a sense of how quickly things were moving, and how complicated the issues were, and I wanted to try to track those as they happened.

To make that easier, Computerworld UK brought those updates together on a single page. It turned out to be an extremely exciting ride as opposition to ACTA grew across Europe, culminating in the rejection by the European Parliament on 4 July last year.

However, one thing we have learned is that those behind unbalanced laws like SOPA and treaties like ACTA, never give up. If they fail with one, they just try again with another. And so it turns out in the wake of ACTA's demise. We are now witnessing exactly the same secretive approach being applied to TTIP - the Transatlantic Trade and Investment Partnership - originally known as TAFTA, the Transatlantic Free Trade Agreement.

Although TTIP only began a few months ago, it is becoming increasingly controversial as more people begin to realise what is at stake. As I explain in several updates below, one of the key problems is the presence of "investor-state dispute settlement" - ISDS - which I predict will prove to be the most contentious part of TTIP.

Indeed, I think it is likely that ISDS will generate so much resistance among the European public that ultimately it will be removed from TTIP completely in order to give other parts more chance of being passed by the European Parliament, which must approve the agreement once it has been negotiated. What follows is my attempt to track the twists and turns of the journey to that final, fateful vote.

On Open Enterprise blog.

European Commissioner Claims 'Nothing Secret' About TAFTA/TTIP, Tries To Defend Corporate Sovereignty

After lurking in the shadows for a few months, the mega transatlantic trade deal TAFTA/TTIP is starting to hit the mainstream media. Here, for example, is an excellent article by George Monbiot in the Guardian, which rightly singles out corporate sovereignty as a key threat: 

On Techdirt.

Why Tribunals Imposing Corporate Sovereignty Are Even More Dangerous Than We Thought

Back in October, we introduced the term "corporate sovereignty" as an alternative to the standard but misleading phrase "investor-state dispute settlement" (ISDS) that is generally used. We noted that perhaps the worst manifestation of corporate sovereignty so far can be seen in Ecuador, where one of the secret tribunals used in these cases had ordered the Ecuadorean government to place Chevron above the country's constitution. 

On Techdirt.

European Commission Desperately Tries To Justify Inclusion Of Corporate Sovereignty In TAFTA/TTIP; Fails Dismally

Techdirt has been writing about corporate sovereignty (also known as investor-state dispute settlement -- ISDS) for a year now. Back in April, we noted that it was likely to be part of the TAFTA/TTIP negotiations, which were just about to start. Since then, more and more people have woken up to its dangers, and called for corporate sovereignty to be dropped from the negotiations. 

On Techdirt.

Resistance Grows To Inclusion Of Corporate Sovereignty In Canada-EU Trade Agreement (CETA)

Remember CETA, the Canada-EU trade agreement, officially known as "Comprehensive Economic and Trade Agreement"? You could be forgiven for losing track of where things were with the negotiations, which have been dragging on since 2009, but a kind of milestone was passed recently: 

On Techdirt.

South Africa Plans To Terminate And Renegotiate Treaties That Include Corporate Sovereignty

Despite the growing evidence that corporate sovereignty clauses in international treaties pose considerable risks to nations that sign them, such "investor-state dispute settlement" (ISDS) mechanisms are present in both TPP and TAFTA/TTIP -- at least as far as we know: it's hard to be sure given the obsessive secrecy surrounding them. 

On Techdirt.

How Much Does Gold-Plated Corporate Sovereignty Cost? $1 Billion Or About 2% Of A Developing Country's GDP

Last week we wrote about the rising threat of corporate sovereignty, known more obscurely as "investor-state dispute settlement", that allows companies to sue countries for alleged loss of future profits. Just how grave that threat is for developing nations can be gauged by the following, reported by Tico Times: 

On Techdirt.

Trade Agreements Are Designed To Give Companies Corporate Sovereignty

One of the difficulties of making people aware of the huge impact that investor-state dispute settlement (ISDS) clauses in TPP and TAFTA/TTIP are likely to have on their lives, is that the name is so boring, and so they tend to assume that what it describes is also boring and not worth worrying about. And yet what began as an entirely reasonable system for protecting investments in emerging economies with weak judiciaries, through the use of independent tribunals, has turned into a monster that now allows companies to place themselves above national laws, as Techdirt has reported before. 

On Techdirt.