Urgent: TTIP Vote - Please Write to Your MEPs before Wednesday

There is a very important plenary vote in the European Parliament on TTIP this Wednesday:

Parliament’s recommendations to the European Commission for its Transatlantic Trade and Investment Partnership (TTIP) talks with the USA will be debated by MEPs on Wednesday morning and voted at noon. Investor protection (ISDS) is set to top the debate, with opinions split on whether Parliament should ask that the use of private arbitration to resolve disputes between investors and public authorities be excluded from the deal.

Specifically:

Parliament will vote on a resolution, drafted by its International Trade Committee with contributions from 13 other committees, which assesses the progress made after one and a half years and sets out Parliament’s views on what needs to be achieved and safeguarded in the Commission’s talks with the USA in areas such as agriculture, public procurement, data protection, energy, and labour rights.

However, that draft resolution has a huge problem: it does not unequivocally reject investor-state dispute settlement (ISDS), the supra-national tribunals that allow corporations to sue nations, which means you and me, since we end up footing the bill.

The good news is that MEPs are often responsive to their constituents contacting them, especially if large numbers do so on a particular theme. So I would like to urge you to write to your MEPs, using WriteToThem, or directly, to ask them to support amendment 27 calling for ISDS to be rejected:

to ensure that foreign investors are treated in a non-discriminatory fashion and have a fair opportunity to seek and achieve redress of grievances, while benefiting from no greater rights thandomestic investors; to oppose the inclusion of investor-state dispute settlement (ISDS) in TTIP, as other options to enforce investment protection are available, such as domestic remedies;

If you want to find out more about TTIP in general, I have written a 6000-word explanation; you can also browse through the 51 columns I have written on the topic over the last two years. Finally, there is a new documentary about TTIP, which provides a superb introduction to the issues – I'm in it, but please don't let that put you off.

I've included below the letter that I have sent to my MEPs: please feel free to draw on its arguments, but I urge you to put them in your words: MEPs hate and will dismiss letters that are carbon copies of others. Individually-written communications, by contrast, are very powerful.

I am writing to you ahead of Wednesday's plenary vote on TTIP. The proposed agreement raises many important issues that the European Parliaments needs to consider, but here I would like to concentrate on perhaps the most contentious, that of investor-state dispute settlement (ISDS), and to urge you to vote for Amendment 27.

Proponents like to point out that the EU currently has around 1400 agreements with ISDS, and that its inclusion has not been a problem so far. What this overlooks is the fact that the vast majority of those agreements are with developing economies; few if any of those countries' companies have investments in the EU, and therefore they are unable to use its measures.

The situation is entirely different with the US. There are 19,900 US-based corporations that own more than 51,400 subsidiaries in the EU, any one of which could invoke ISDS if it is included in TTIP, since the European Commission's TTIP mandate specifies that ISDS must be retroactive, and cover existing investments as well as new ones. A 2013 study commissioned by the UK government from the London School of Economics confirms the risks of ISDS in TTIP: "an EU-US investment chapter is likely to provide the UK with few or no benefits. On the other hand, with more than a quarter of a trillion dollars in US [foreign direct investment] stock, the UK exposes itself to a significant measure of costs" (https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/260380/bis-13-1284-costs-and-benefits-of-an-eu-usa-investment-protection-treaty.pdf).

Even before TTIP, ISDS lawsuits have cost EU governments – and thus the EU public – billions of euros. According to research carried out by Friends of the Earth Europe: "The total amount awarded to foreign investors from EU member states – inclusive of interest, arbitration fees, other expenses and fees, as well as the only known settlement payment paid out by an EU member state – was publicly available for 14 out of the 127 cases (11%) and amounts to €3.5 billion." Since figures are not available for all the other 113 cases, it is likely that the total amount paid out by EU countries is much higher. The sums involved are big, and getting even bigger: in a case last year, an ISDS tribunal made an award of $50 billion against the Russian government, the highest so far.

Just as worrying as the financial implications of ISDS are the chilling effects it has. ISDS awards can be so large that losing a case brought before these secretive tribunals is a serious matter for any country. Governments are therefore naturally keen to avoid bringing ISDS lawsuits down upon themselves. Companies are well aware of this, and have used the mere threat of this kind of action to prevent new laws and regulations being introduced.

For example, in Canada, a precursor of TTIP, NAFTA, was regularly used to kill off proposed legislation. As a Canadian government official said (http://www.thenation.com/article/right-and-us-trade-law-invalidating-20th-century?page=0,5): "I've seen the letters from the New York and DC law firms coming up to the Canadian government on virtually every new environmental regulation and proposition in the last five years. They involved dry-cleaning chemicals, pharmaceuticals, pesticides, patent law.Virtually all of the new initiatives were targeted and most of them never saw the light of day." The European Commission says that the versions of ISDS used in its most recent agreements, with Canada and Singapore, have been drafted to avoid these kinds of cases, but independent research by two groups shows that these claims don't stand up to scrutiny (available at http://www.iisd.org/pdf/2014/reponse_eu_ceta.pdf and http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2613544.)

Given those very real dangers, the question has to be: why is ISDS even being considered?

Proponents claim that it is necessary to include ISDS in order to encourage and protect investment across the Atlantic. That seems unlikely given the well-developed nature of the legal systems in both the US and EU. The actions of the investors themselves proves that in fact the protection is not just sufficient in theory, but in practice too: in 2013, the US invested 1.65 trillion euros in Europe; Europeans invested even more in the US – nearly 1.7 trillion euros (European Commission figures – http://ec.europa.eu/trade/policy/countries-and-regions/countries/united-states/.) Clearly, there is no problem that needs solving with ISDS.

Some ISDS supporters admit that ISDS is not needed for TTIP, but say that it must be included for future agreements, by which they mean one with China. This is based on the assumption that it would be EU companies using ISDS to protect their investments in China; it overlooks the fact that China is already the world's second-largest economy, and will soon by the biggest. It is investing massively in Europe, which means that it would be able to use any ISDS clauses in future trade agreements against European governments, just as the US would. In other words, putting ISDS in TTIP purely in order to set a precedent for a future deal with China actually gets the worst of both worlds.

Finally, it is worth noting that if investors are really worried about the risks of putting their money into the US or China they can always take out investment insurance specifically designed for that purpose, which is readily available. Since it is the companies that reap the benefits of their investments, it is only fair that they they should pay for any insurance to cover it. ISDS is in fact a subsidy from the European public to those who invest abroad, rather than at home: it discriminates against EU companies that prefer to put their money into local economies and to boost local employment, which is surely not what the European Parliament would wish to achieve.

For all these reasons, I urge you to support amendment 27 that would take ISDS out of TTIP. Thank you for your help.

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.

Urgent: Please Help Stop Underhand Attempt to Sneak in the Snooper's Charter

In an act of extraordinary contempt for both the public and democracy, four lords are attempting to insert the bulk of the Snooper's Charter in the Counter Terrorism and Security Bill in a way that means there will be almost no opportunity to debate it.  We have only two days to stop this disgraceful move by writing to members of the House of Lords, and asking them to object to this disturbing attempt to circumvent the proper procedures "because terrorism".

WriteToThem will provide you with a random person to contact, and an easy way to do so - you just have to provide the message.  Here's what I've sent to a few people there:

I hope you will forgive me for contacting you out of the blue like this, but I feel that the circumstances surrounding the attempt to introduce what amounts to an entire additional bill into the Counter Terrorism and Security Bill without scrutiny is a gross abuse of Parliamentary procedure - indeed an assault on democracy.

As the Open Rights Group notes:

"The draft Communications Data Bill, which is inserted by the amendment in nearly identitical form, was scrutinised by a joint committee of the Lords and Commons for a year.

The Committee agreed unanimously that the draft was inappropriate. None of their concerns are addressed in the clauses presented. 

The report is extremely critical of the Home Office, labelling their figures “fanciful and misleading.” It adds that they “expect the overall cost to the taxpayer over the next decade to exceed £1.8 billion [the Home Office's estimated cost] by a considerable margin"

The Committee said that “the draft Bill pays insufficient attention to the duty to respect the right to privacy, and goes much further than it need or should for the purpose of providing necessary and justifiable official access to communications data.”

Their concerns over wholesale collection and analysis of data were substantial and from any perspective would need considerable changes to be made to the draft bill, now presented as amendment to the Counter Terrorism and Security Bill."

Given those issues, as well as the more fundamental one of the entire legislative process being abused in this way, I would like to urge you to attend the debate on Monday and to express your concerns about this attempt to insert legislation into an existing Bill at the last minute.

Thank you for your help in this important matter.

Incoming: Spare Slots for Regular Freelance Work

I will soon have some spare slots in my freelance writing schedule for regular weekly or monthly work. Below are the main topics that I've been covering, some for two decades. Any commissioning editors interested in talking about them or related areas, please contact me at glyn.moody@gmail.com (PGP available).

Free Software/Open Source

I started covering this 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, in 2001. For my book, I interviewed the world's top 50 hackers at length, and remain in contact with many of them, as well as with open source coders and companies that have risen to prominence in the last decade and a half, writing about them principally in my Open Enterprise column for Computerworld UK.

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 related areas such as open access, open data and open science grown. Much of it can be found in the earlier posts on this blog, among the 1400 articles I've written for Open Enterprise, and on Techdirt, where I have published over a thousand posts.

Copyright, Patents, Trade Secrets

The greatest threats to openness comes from its converse: intellectual monopolies. This fact has led me to write many articles about copyright, patents and trade secrets, mainly for Techdirt.

Trade Agreements - TTIP, TPP, TISA

Because intellectual monopolies represent such a threat to free software and open projects, I began writing about the Anti-Counterfeiting Trade Agreement (ACTA) which dealt with them. In fact, I wrote a whole series of articles charting ACTA's rise - and fall.

That, in its turn, led me to write about the even more problematic Transatlantic Trade and Investment Partnership (TTIP) on an even larger scale: to date, I've written some 48 posts about it for Computerworld UK, and many more for Techdirt. Parallel to this, I've written extensively about other trade agreements: the Trans-Pacific Partnership agreement (TPP) and the Trade in Services Agreement (TISA).

Surveillance, Encryption, Privacy, Freedom of Speech

Partly in response to recent revelations by Edward Snowden, and the growing threat to digital rights that they reveal, I have written extensively on surveillance, encryption, privacy and freedom of speech, both for Techdirt and Computerworld UK.

Twitter, identi.ca, Google+

Although the number of people who follow me on Twitter, identi.ca and Google+ is not particularly large - around 25,000 altogether - natural selection over the years has ensured that they are highly interested in the topics mentioned above (otherwise they wouldn't still be following me.)  They include some very active users that re-tweet widely links to my freelance work.

Europe

As a glance at my posts to Twitter, identi.ca and Google+ will indicate, I read news sources in a number of languages (Italian, German, French, Spanish, Portuguese, Dutch, Russian, 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.

Please Write to Your MP to Ask for Parliamentary Scrutiny of TTIP

One of the many big problems with TTIP is the lack of democracy: it is being negotiated behind closed doors, with virtually no input from the public. The texts will be made available once the negotiations are complete, at which point it will not be possible to make changes. Even the national parliaments will be limited to a simple yes or no vote.

The MP Geraint Davies has put forward a motion on TTIP calling for more scrutiny:

"That this House resolves that the Transatlantic Trade and Investment Partnership and any associated Investor State Dispute Settlement provisions should be subject to Parliamentary scrutiny in the European Parliament and the UK Parliament."

It's not much, but it's better than what we currently have, so I would like to urge you to write to your local MP, asking them to support this motion. You can do that either using WriteToThem, or more simply using the 38 Degrees site. Here's what I've written:

As you know, the Transatlantic Trade and Investment Partnership (TTIP) currently being negotiated between the EU and the US is highly contentious. One of its biggest problems is the lack of scrutiny. In order to inject a little more democracy into the process - and to bolster your own key role as representative of the public here - I would like to urge you to support the motion being put forward by Geraint Davies that calls for more scrutiny for TTIP.

Please Write to Your MP about Plain Packaging for Cigarettes

I was disturbed to read in the Guardian that the UK government may be wavering on introducing plain packs for cigarettes.  Failing to do so before the General Election would be seen as a huge victory for the tobacco companies, and have knock-on effects around the world. 

I have therefore written to my local MP, and I'd like to urge you to do the same, asking them to press for the relevant legislation to be laid before Parliament as soon as possible.  You can do that very easily using the excellent WriteToThem service.  Here's what I've sent:

I am writing to you about the introduction of plain cigarette packaging regulations: I was disturbed to read the relevant legislation might not be introduced before the General Election. 

As a journalist who writes about international trade among other things, I have been following closely plans to introduce plain packs around the world.  In particular, I have written about legal action by Philip Morris against both Uruguay and Australia as a result of health measures they have taken to reduce deaths and illnesses caused by smoking (https://www.techdirt.com/articles/20121226/09522221488/treaty-shopping-how-companies-tilt-legal-playing-field-investor-state-arbitration.shtml) 

As you know, what is particularly interesting about these cases is that they use the highly controversial Investor-State Dispute Settlement (ISDS) process in order to claim an indirect expropriation of property.  Since the company is doing this through subsidiaries - one in Switzerland, the other in Hong Kong - it is not even clear whether those cases can proceed. However, it is evident that one of the main reasons Philip Morris is taking this route is to intimidate other countries thinking about bringing in plain packs measures.  Indeed, New Zealand has put its own plans on hold pending the result of the Australian case, which shows that strategy is having its effect.

I would therefore like to urge the UK government to place the regulations governing plain packets before Parliament as soon as possible.  This is vitally important not just for the health of British people, but for millions of people around the world.

If the UK government holds off on its plans to introduce plain packaging, this will be taken as a sign that such a move is likely to be contested by the tobacco companies.  Smaller nations that are unwilling to take the risk of losing what can be punitively expensive cases - Philip Morris is demanding $2 billion "compensation" from Uruguay, a huge chunk of its entire health budget - will be discouraged from joining the global movement to making cigarette packets less attractive to young people.

If, on the other hand, the Government is bold and moves forward with the UK legislation, this will send a very strong signal to nations around the world that it is both morally the right thing to do and feasible in practical terms.  More governments will follow the UK's lead, and it will be impossible for tobacco manufacturers to use crude legal threats to intimidate them as they find safety in numbers.

In other words, the decision on this issue could literally change the course of history in this area. This is not just about helping many thousands of people in the UK to avoid taking up smoking, with its concomitant costs, both in terms of health and money, but about saving millions of lives around the world.  I therefore urge the UK government to bring this legislation before Parliament as soon as possible: every day's delay means more unnecessary suffering and deaths.

Thank you for your help in this important matter.