TTIP Update XIX

In my last update I raised the issue of an apparently obscure facet of investment chapters - the presence of "Most Favoured Nation" clauses - that actually undermined any attempts to bring in "safeguards" against the manifest dangers of that form of supranational corporate sovereignty known as investor-state dispute settlement (ISDS).  Cynics among you probably thought this was nit-picking, but support for the idea has arrived from a rather surprising quarter:

According to Rupert Schlegelmilch, director of services, investment and procurement at DG Trade, speaking on behalf of the Commission at a public debate yesterday on investor-state dispute settlement (ISDS) and the TTIP, the EU is rethinking a “Most Favoured Nation” (MFN) article in the CETA investment chapter that new analysis suggests undermines much of the more careful language in the treaty relating to a government's ability to regulate. As written, the MFN article would let Canadian and EU investors ignore the definitions of “fair and equitable treatment” or “indirect expropriation” in CETA and take other more investor-friendly language from past agreements signed by either party.

Obviously, it's great news that the European Commission has recognised there's a problem here, and is trying to do something about it.  But this incident actually underlines a much bigger point.  The problem with MFN only emerged because the CETA chapter dealing with ISDS was leaked.  That meant that experts such as Nathalie Bernasconi-Osterwalder and Howard Mann at the International Institute for Sustainable Development were able to spot this huge loophole there [.pdf].  But that immediately raises the question: how many other serious problems are lurking in the many other chapters of CETA for which we do not have leaked versions? Would it not be better to have many experts searching for loopholes in the agreement *before* it is signed, rather than afterwards, when fixing them will be very hard, if not impossible?

Really, this comes down to applying Linus' Law -  the insight that given enough eyeballs, all bugs are shallow - to the code of international treaties.  Not to do so is wilfully to throw away the power of parallelised production, which allows better results to be produced much more quickly.  In other words, keeping texts secret is not just an insult to the public in whose name they are being negotiated, but actually leads to worse results thanks to the lack of proper scrutiny.

So, in the absence of texts that have been discussed during the latest round of the TAFTA/TTIP negotations - texts that are by definition not secret, since they have been discussed by both sides - in this update I will analyse some other documents that provide useful insights.

For example, the US Trade Representative, which is the negotiation partner for the European Commission, has released what it calls "U.S. Objectives, U.S. Benefits In the Transatlantic Trade and Investment Partnership: A Detailed View".  That in itself is interesting, and shows that it is feeling the pressure to open up.  Of course, releasing one very general document does little to address that, but it does contain one or two tidbits worth noting.

For example, in the section "Electronic commerce and information and communication technology (ICT) services" we read:

free flows of data are a critical component of the business model for service and manufacturing enterprises in the U.S. and the EU and key to their competitiveness.

But as we know, the European Parliament has come out against such "free flows", and wants to see European-style data protection for personal data when it leaves the EU.  So it will be interesting to see how that works out.

One aspect of TTIP that has not been discussed much yet concerns intellectual monopolies.  Here's what the USTR has to say on the subject:

We seek new opportunities to advance and defend the interests of U.S. creators, innovators, businesses, farmers, and workers with respect to strong protection and effective enforcement of intellectual property rights, including their ability to compete in foreign markets.

The question is: will the US try to use TAFTA/TTIP to bring in ACTA-like measures?  Since everything is being negotiated behind closed doors, we don't yet know, but I'm confident we'll soon see some leaks that gives us an insight into this crucial area.

Finally, there is the controversial area of investor-state dispute settlement (ISDS):

We recognize that trade agreements that are effectively enforced establish a set of high-standard rules and obligations that help keep markets open to U.S. exporters and investors and ensure a level playing field.  When we negotiate and implement a trade agreement, we expect our trading partners to stick by the rules and obligations they agreed to.  However, when our trading partners fall short of what they promised – whether to reduce tariffs, implement strong labor and environment provisions, or otherwise provide U.S. exporters fair and non-discriminatory treatment – we need a means to hold them accountable.  This is why we have this important objective to establish a fair and open dispute settlement mechanism.  Dispute settlement gives us a means to discuss our concerns in a timely way and to seek compensation if they are not addressed.  Dispute settlement with trading partners in T-TIP will give the American public the confidence that we not only negotiate strong, high-standard obligations, but that we also have the means to enforce them.

You've got to love the subtle suggestion that the European Union is some kind of large, fragmented banana republic where the rule of law is uncertain, and thus supranational tribunals of the kind employed by ISDS are indispensable.  Just can't trust that sneaky Euro-trash...

Meanwhile, we're starting to see some sectoral information about what various industry want from TTIP, and hidden away in the details there are some interesting angles.  For example, here is a "Proposal on US-EU Regulatory Cooperation" [.pdf] from The European Crop Protection Association (ECPA) and CropLife America (CLA).  As you might expect, most of that document falls outside the scope of this column, but there's one section that certainly touches on issues I've discussed before:

ECPA and CLA strongly support that the EU and US continue to promote (a) minimum standards of 10 years for protecting regulatory data, and (b) protection of CBI [Confidential Business Information] through Free Trade Agreements with other countries, where protection of regulatory data is sub-optimal. Protection of regulatory data from unauthorized use by competitors is essential for stimulating investment in research and development of agricultural crop protection products. This protection provides benefits to all stakeholders – from farmers to consumers – ultimately contributing to the economic development of industrialized and developing countries alike.

That "regulatory data" is essentially health and safety information.  This must be made available as open data, for the same reason that clinical data should be.  It allows it to be checked by independent researchers, and also allows it to be analysed and re-used in new ways.  Making it proprietary as the ECPA and CLA call for blocks those kind of uses.  As it becomes more widely recognised that data is a crucial resource for the future, we need a general principle that "regulatory data is always open data" to be enshrined not just in TTIP, but in all agreements.

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

TTIP Update XVIII

A lot has been happening on the TTIP front recently.  That's largely because of two factors.  First, that the real negotiations have begun, which is generating a lot of activity by all those involved.  And secondly, because resistance to some or even all of TTIP is growing, and that is manifesting itself in various ways.  For example, yesterday the important resolution on NSA surveillance passed by the European Parliament included the following key recommendation:

Parliament should withhold its consent to the final Transatlantic Trade and Investment Partnership (TTIP) deal with the US unless it fully respects EU fundamental rights, stresses the resolution, adding that data protection should be ruled out of the trade talks. This consent “could be endangered as long as blanket mass surveillance activities and the interception of communications in EU institutions and diplomatic representations are not fully stopped”, notes the text.

Interestingly, the leak of a document from 2012 [.pdf] reveals that getting consent for TTIP is going to be much harder than we thought.  The confidential legal opinion says that TTIP must be regarded as a "mixed agreement".  What that means in practical terms is that all 28 EU national parliaments must approve it - it's not just the European Parliament that gets to vote here.  That makes the barrier to getting TTIP through much higher.

There's more resistance in the form of a new site dedicated to TTIP put together by the Green/EFA Group of the European Parliament:

The European Greens do not believe that TTIP represents the kind of transatlantic relationship we need. As it currently stands, TTIP threatens our democracy and risks undermining our hard-won regulation and standards in a host of sectors.

We are against the current negotiation agenda that was set by business interests and is taking place in complete secrecy. Negotiations need to be in the full view of the public and their representatives, and the deal needs to promote and enhance social, environmental, health and consumer rights, not undermine them.

Contributions to this site will continue over the coming months. The Greens hope to provide a platform for concerned stakeholders to discuss the current state of the negotiations and what they could mean for citizens and democracy on both sides of the Atlantic.

Another new site is eu-secretdeals.info, which has an interesting emphasis on publishing leaked documents for both TTIP and the Canada-EU trade agreement (CETA):

By publishing negotiating texts, that reached us from anonymous sources, and by providing critical analysis of these texts, we hope to enable parliamentarians, academics, civil society organisations, media and the public to understand what the EU, the US and Canada are trying to do during the negotiations.

We are committed to a more transparent and democratic EU and international trade policy. And we invite all interested NGOs, academics and progressive political actors to contribute to this site with their insights and analysis of the leaked investment texts and investor-state dispute settlement generally.

As that suggests, the investor-state dispute settlement (ISDS) element of TTIP (and CETA) remains problematic.  In fact, the main organisation that monitors this area - UNCTAD, the United Nations Conference on Trade and Development - published an important analysis [.pdf] of just how serious those problems were back in June 2013 (I've only just come across it, thanks to this excellent Swedish post rebutting the European Commission's attempts to justify ISDS that I wrote about my previous update.)

Here are the main issues with ISDS, as perceived by UNCTAD:

Legitimacy and transparency

Probably the main concern here, that ISDS will undermine measures in the public interest.

Arbitral decisions: problems of consistency and erroneous decisions

As UNCTAD points out, the decisions of the ISDS tribunals are often inconsistent, which makes them a nightmare to plan for and deal with - and hardly suitable for a treaty like TTIP.

Arbitrators: Concerns about party appointments and undue incentives

The members of ISDS tribunals may not be impartial, making their judgments even more problematic.

Cost- and time-intensity of arbitrations

ISDS cases typically cost around $8 million, which makes them punitively expensive. 

Those are the "old" problems, well-known for some time.  But new ways of abusing the ISDS system are cropping up all the time.  For example, an important new report from Corporate Europe Observatory (CEO) exposes how ISDS in existing treaties are being used in an attempt to extract huge sums from European nations worst-hit by the financial crisis:

For a long time, European countries were left unscathed by the rising global wave of investor-state disputes which had tended to target developing countries. In the wake of the global financial crisis, however, corporations and investment lawyers have turned their eyes to potential pickings in Europe. An investment regime, concocted in secretive European board rooms, and that gives corporations powerful rights to sue governments, has finally come home to roost.

Here's how it works:

Profiting from Crisis looks closely at how corporate investors have responded to the measures taken by Spain, Greece and Cyprus to protect their economies in the wake of the European debt crisis. In Greece, Poštová Bank from Slovakia bought Greek debt after the bond value had already been downgraded, and was then offered a very generous debt restructuring package, yet sought to extract an even better deal by suing Greece using the Bilateral Investment Treaty (BIT) between Slovakia and Greece. In Cyprus, a Greek-listed private equity-style investor, Marfin Investment Group, which was involved in a series of questionable lending practices, is seeking €823 million in compensation for their lost investments after Cyprus had to nationalise the Laiki Bank as part of an EU debt restructuring agreement. In Spain, 22 companies (at the time of writing), mainly private equity funds, have sued at international tribunals for cuts in subsidies for renewable energy. While the cuts in subsidies have been rightly criticised by environmentalists, only large foreign investors have the ability to sue, and it is egregious that if they win it will be the already suffering Spanish public who will have to pay to enrich private equity funds.

This is a great demonstration of how ISDS clauses can be misused.  These debt restructuring measures were brought in at the behest of the European Commission: the countries had no choice in the matter if they wanted EU support.  The austerity measures they formed part of have pushed large numbers of people into poverty, and yet the investors who have bought up debt cheaply are now trying to extract large sums from cash-strapped governments.  If the investors win, that money will come out of the public budget, and will inevitably mean further cuts in health services, education etc.

These ISDS cases have arisen purely from existing intra-EU treaties: imagine how things will be when US companies can join in.  And if you think only a few multi-national companies are involved, think again. As CEO says:

A total of 75,000 cross-registered companies with subsidiaries in both the EU and the US could launch investor-state attacks under the proposed transatlantic agreement. Europe’s experience of corporate speculators profiting from crisis should be a salutary warning that corporations’ rights need to be curtailed and peoples’ rights put first.

Of course, the European Commission's response to all these major issues is to say that we shouldn't worry, because it will all be sorted out in TTIP.  But as a previous Update showed, its attempts to do that in CETA don't inspire confidence.  That was based on some excellent work by the Seattle to Brussels Network; but I've recently discovered another, completely independent analysis of the same documents, this time from the International Institute for Sustainable Development [.pdf].  It's extremely thorough, and its conclusions are unequivocal:

In the end, and whatever the reason for the disconnect, we conclude that the actual draft legal texts in the public domain show that the European Commission’s assertions [about improving ISDS in CETA] are in most respects incorrect when compared to the draft legal text. The technical legal analysis is set out on each specific point below. In effect, the analysis indicates that the standards by which the European Commission itself seeks to demonstrate the success of the drafting actually show that the drafting has failed to meet its stated objectives, in fact, sometimes with the exact opposite result.

Here, though, I want to concentrate on one particular aspect that concerns "Most-Favoured Nation (MFN)", which could extremely serious ramifications if it is included in TTIP.  The situation for CETA is as follows:

Article X.8 of the November 2013 draft [of CETA] contains the MFN provision. In essence, it requires, for present analytical purposes, a European state to treat a foreign investor from Canada no less favourably than it treats an investor from any third state. The problem arises from the legal reality that such treatment has been defined in investment arbitrations as including the rights of other investors under investment treaties with the host state. So, if an EU member state that has a Canadian investor also has a treaty with an African, Latin American or any other state, the investor from Canada can import the provisions of that treaty if they are more favourable than the provisions of the CETA.

The impact of this is straightforward. The European Commission statement notes the need to “bring very significant clarifications” in order to give arbitrators “strict and detailed guidance when these provisions are invoked by an investor.” Now, we have already seen from the preceding analysis that this objective has not been met in the November 2013 draft text. But let us suppose, for the sake of understanding the current issue, that it had been met. The MFN provision would in any event undo this.

Arbitrators now routinely allow investors to essentially cherry-pick provisions from other investment treaties that are more favourable to it. To continue our example of a Canadian investor, let’s assume it makes a claim against an EU member state for expropriation under CETA. The exceptions and carve-outs would apply to it. However, if the same state has an old treaty with any other state, the investor can argue that the expropriation provision from that treaty, without the exceptions or carve-outs included in the CETA, should apply to its claim as a result of the CETA’s MFN provision. The benefits to the states of the more careful drafting are thus, quite simply, lost.

So, in the case of CETA, all of the European Commission's much-vaunted "improvements" to ISDS are completely nullified by the presence of this MFN clause.  We don't know if a similar MFN section will be in TTIP, but if it is, and it is as badly-worded as in CETA, it will have a similarly disastrous effect.  When the European Commission releases its ISDS consultation document (soon?) it must make absolutely clear what its position on MFN is.

However,  maybe it won't matter.  An article published todayin the German newspaper Die Zeit claims that the German government wants ISDS out of TTIP.  Obviously, that needs to be confirmed, but if it's true, it's hard to see how the European Commission will be able to push an agreement through if it contains ISDS.

Never a dull moment in the world of TTIP....

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

TTIP Update XVII

In a previous update a couple of months ago, I discussed a low-key meeting that took place between  the European Commission and some of the biggest companies in the world (mostly from the US), which essentially revealed that the Commission was, after all, intending to bring back some of ACTA's worst ideas.  Things just became rather more worrying on this front as the result of the following announcement in the US:

This morning, President Obama nominated Robert Holleyman as deputy U.S. trade representative. If confirmed by the U.S. Senate, Holleyman will help lead the effort to pass the controversial Trans-Pacific Partnership trade deal.

Notably, Holleyman is a former lobbyist who led efforts to pass the Stop Online Piracy Act legislation, better known as SOPA, when he was leader of the Business Software Alliance. The SOPA debate (along with its sister legislation, PROTECT-IP, in the Senate) brought a spotlight on industry efforts to undermine Internet freedom through what many considered to be draconian intellectual property policy.

As that notes, he was formerly head of BSA; that means that he is no friend of open source.  Coupled with the European Commission's admission that it wants to bring in "Christmas list" of new demands in the area of intellectual monopolies, makes TTIP alll-the-more dangerous for both free software and online freedom.

Alongside that bad news, we've also had some good news in the shape of two significant leaks of relevant documents.  One concerns the Canada-EU trade agreement (CETA), which I discussed recently.  The German Pirate Party has obtained a copy of part of this agreement (.pdf), dating from December last year - quite recent, then.  Interestingly, even here there are sections that have still not been finalised. The leaked section concerns intellectual monopolies; a good early analysis of it has been made by Ante Wessels of FFII.  In particular, he compares its measures to those found in ACTA:

The damages in CETA do not contain the much criticized retail price damages, which were part of ACTA, the Anti-Counterfeiting Trade Agreement, and are part of the EU – Singapore trade agreement proposal.

The injunctions do not contain “inaudita altera parte”, the much dreaded possibility to decide on injunctions without the infringer present.

So far so good. But, I do not see what was footnote 2 in ACTA, and is footnote 33 in the EU – Singapore agreement, the right to exclude patents from the scope of the civil enforcement section.

All the strong enforcement measures (damages, injunctions, provisional measures) will be available for software patent trolls.

The strong enforcement measures further create problems for access to knowledge and taking part in culture, for remix artists, and for inventors involved in sequential invention – like software developers.

Bad news, in other words.  And because agreements tend to build on one another - as I mentioned last year - it's very likely some of this language will re-appear in TTIP. 

The other leak is the European Commission's draft proposal on trade in services, investment and e-commerce for the TTIP negotiations [.pdf], obtained by the German newspaper Die Zeit.  Although it dates from July last year, it still offers some useful insight into the Commission's general thinking as regards TTIP.  That's also true of its latest official document, entitled "EU US Trade Agreement – The Facts" [.pdf]  This is very similar to the text that I discussed in October last year, headed "Incorrect claims about investor-state dispute settlement".  It takes the same form: statements allegedly made about TTIP, and their rebuttal.  For example:

TTIP will enable foreign firms to undermine EU laws. FALSE

An existing law cannot be undermined by a trade agreement. An existing ban on fracking or chlorine - washed chicken cannot be questioned, for example.

Although that's true, the European Commission omits to mention that  foreign firms will be able to undermine *future* laws by threatening to sue the EU or national governments if they are brought it.  This chilling effect is not merely theoretical: it has been happening for years in Canada, where NAFTA's ISDS chapter has allowed US companies to undermine proposed legislation in just this way.  If TTIP includes ISDS, it seems certain US companies will do the same here in Europe.  And remember that the great thing about such threats is that they can work even when it is not at all clear that the company would win in the ISDS tribunals: the mere possibility of such expensive actions is usually enough to "persuade" governments to back down.  That's the real danger here.

Moreover, from a true statement, the European Commission rather naughtily segues into an untrue one:

What the agreement does provide for – and this is in the EU's interest - is a ban on discrimination. That means that what applies to domestic firms must also apply to foreign firms.

What the Commission elides here is the fact that US companies will actually have *more* rights than EU companies in Europe, because EU companies are not able to sue there for any claimed "indirect expropriation of future profits", as US companies can using ISDS.  So introducing ISDS in TTIP will actually put EU companies at a disadvantage in their home markets.

TTIP will lead to privatisation in areas such as health care, water and education. FALSE

The TTIP Agreement has nothing to do with privatisation – only governments can decide that. No free trade agreement obliges the EU's Member States to liberalise or privatise the water industry or other public services, such as public health systems public transport or the education system.

Again, this misses the point - wilfully, perhaps.  The problem with TTIP is not that it will force nations to privatise services, but that once they are privatised, and provided by a US company, it will effectively be impossible to re-nationalise them.  That's because under ISDS that would amount to an "expropriation" of future profits, which would mean that the US companies concerned could sue the governments for those "lost" monies.  That would make re-nationalisation punitively expensive, and ensure that it rarely happened.

TTIP will restrict the rights of internet users. FALSE

Both the EU and the US have efficient regulations for protecting intellectual property rights, even though their respective regulations achieve their goals in different ways. The TTIP aims to simplify trade between the EU and the US without weakening these regulations. The TTIP will not be "ACTA throug h the back door" and it will not call into question the European Parliament's rejection of the trade agreement on combatting piracy of labels and products (ACTA).

As I noted above: the European Commission has already said to corporates that ACTA by the back door is precisely what it hopes to achieve here; the appointment of one of the main SOPA supporters as a key US negotiator guarantees that this will be high on the agenda.

The TTIP is undemocratic and elected politicians have no influence over it. FALSE

Both the EU's national parliaments as well as MEPs in the European P arliament have considerable influence on the TTIP negotiations. The European Commission is negotiating the trade agreement in the name of, and with a mandate from, the EU's Member States. The EU's negotiators meet weekly with representatives of the dem ocratically elected governments of the Member States in order to brief them 'live' before, during and after negotiating rounds and to take into consideration their positions. The European Parliament is also regularly informed of the state of the negotiati ons so that the positions and interests of the democratically elected parliamentarians can also be taken into consideration in the negotiations. Finally, it will be the EU Member States and the European Parliament which will have the last word on the TTIP and so it is obvious their interests will be taken into consideration.

This is nonsense.  Here's the reality:

USTR demands for hyper-secrecy in the Trans Atlantic Trade and Investment Partnership (TTIP) continue to be a major block to continuing negotiations. The current issue under discussion is access to US proposals by EU member states — which are of course themselves sovereign countries. The member states are demanding access to the text of proposals that would constrain their domestic law making, as they ave had in all other EU trade agreements (e.g. the recent EU-Canada FTA). But Inside US Trade (2/28/2014) reports that USTR Froman has offered only that “he might be able to allow the European Commission to share the U.S. negotiating documents it receives if they were accessible only in a secure reading room.”

As that makes clear, even the "representatives of the democratically elected governments of the Member States" don't have access to all the relevant documents: they are currently being offered peeks in a "secure reading room" - how insulting is that? For MEPs, it's even worse:

There is no word yet on whether EU Members of Parliament will obtain access to consolidated TTIP text after each negotiation round, as was provided in at the end of the negotiation of the of the Anti-Counterfeiting Trade Agreement (ACTA). Increased access to ACTA text for EU (but not US) legislative staff followed a March 2010 Resolution of the EU Parliament lambasting the Commission for its intense secrecy, including accusations of violations of the Lisbon Treaty governing EU affairs.

If MEPs can't even see the text, they are certainly not informed.  There's no way that they can exert "considerable influence" as the Commission claims if they don't know what's in the negotiating texts.  And that "last word" is literally that: a single, "yes" or "no" vote, where MEPs will be under tremendous pressure to accept the horrors - things like ISDS - for the sake of some much-needed growth.  Talking of which:

Why bother? The Transatlantic trade and Investment Partnership could have a similar effect to a package of economic stimulus measures. It could boost growth by 0.5% of GDP or some €120 bn, equivalent to €500 for every EU household because savings for companies also mean cheaper products, higher quality and more choice for consumers.

Yet again, the European Commission fails to note that the extra 0.5% GDP growth is compared to what would be obtained without TTIP *in 2027*, after 10 years of the agreement.  That means that even under the most favourable circumstances - something else it also fails to note - TTIP will increase GDP by just 0.05% each year on average.  It makes no sense to talk about the cumulative GDP effect: it might as well say that TTIP will produce 50% GDP growth - but without mentioning that would only be in 2117.  The only meaningful measure is the extra GDP growth that TTIP will produce *each year*, and that figure is 0.05%. 

Claiming that TTIP "could boost growth by 0.5% of GDP" without explaining that this is the  cumulative, not annual, figure is a serious misrepresentation of what its own projections suggest might happen in the best-case scenario - and certainly not a "fact" about the EU-US trade negotiations.

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

TTIP Update XVI

The European Commissioner responsible for TTIP, Karel De Gucht, has just held a "stocktaking" of the negotiations with his US counterpart, Michael Froman.  One thing that's clear is that the talks aren't moving as fast as politicians had hoped when they announced the project.  For example, nobody is talking about finishing this year, and even 2015 is looking hard.

Nonetheless, the stocktaking represents the start of the next phase, when the serious bargaining begins.  That's led to more information beginning to flow about TTIP, which is good news given the almost total secrecy in which the negotiations are being conducted.

Talking of transparency, and its absence, there's a very interesting report in the Financial Times on the subject (subscription required, but limited free access available with simple registration.)  It seems that one of Washington’s "main negotiating priorities" will be - you guessed it - transparency, but only in the domain of regulations:

There is, they argue, too little transparency in the current European process, with businesses given too few opportunities to see or comment on proposed regulations.

US companies also complain that they are often shut out of the regulatory process in Europe because the EU system can depend on closed consultations with local industry groups that make it difficult for outsiders to register their concerns.

Specifically, here's what the US wants:

The US has proposed that EU regulators be required to publish the proposed texts of regulations and open them to public comment. It also wants regulators to be required to consider comments and explain why they had adopted – or failed to adopt – outside suggestions when they finalise regulations.

US officials argue that there is a growing emphasis on transparency in regulation and greater public consultations are increasingly important.

Well, that's certainly true, and since TTIP is by the European Commission's own admission 80% about regulations, that same logic would suggest that the proposed TTIP texts should be published for public comment.  And as far as the concern that "secret" negotiating documents can't be revealed for fear that they will undermine tactical plans, that's simple to address: publish all documents once they are "tabled" - that is, revealed to the US negotiators.  At that point, they are no longer secret, so publishing them can't do any harm, but allows the public to see what is being done in their name.

Aside from this deeply ironic call for "transparency" from the US negotiators, who are even more paranoid about secrecy than the EU side, there is another little tidbit about the negotiations, which comes courtesy of CETAWatch, a Canadian organisation focussed on the Canada-EU trade agreement I've discussed before.   According to CETAWatch, CETA's investment chapter will be published by the European Commission in March, as part of its imminent public consultation on the highly-controversial ISDS provisions.  That would seem to suggest that the European Commission's forthcoming proposals for ISDS, which the EU public will have the chance to comment on, will be based on CETA.  That makes sense, because we know from another leak that CETA's ISDS provisions contain many of the modifications that the Commission has said it will seek in TTIP.  Unfortunately, those modifications do not, in fact, address the deep underlying problems of ISDS, as I've discussed in another TTIP Update.

That obviously raises the question: what will the US be proposing on ISDS?  Fortunately, we have another (public) document, that gives us a good idea.  It's called the US Model Bilateral Investment Treaty, and was released a couple of years ago.  I won't go through it because it's hard to tell how close it will be to TTIP; moreover, the US Institute For Policy Studies has already produced a useful analysis that points out its many deficiencies.

Significantly, it is ISDS that lies at the heart of a column published recently in the Wall Street Journal by Ken Clarke.  It isn't the first time that Clarke has defended ISDS: he did it back in November last year, when he attacked George Monbiot for his article in the Guardian pointing out the dangers of TAFTA/TTIP, and of ISDS in particular.

I want to explore Clarke's latest article in some detail here, because it shows us the latest arguments that are being deployed by those seeking to defend ISDS.  After some misleading comments that ISDS is "not about setting standards for consumer or environmental protection" - which is true, but it does allow corporates to challenge existing and cast a chill over future regulations in these areas - Clarke moves on to his main argument:

Investment protection of this sort is a longstanding policy of the U.K. and the rest of the European Union. Investment protection clauses are reflected in more than 1,400 bilateral investment treaties that have been concluded by EU member states. They have been included in every British investment deal, without doing the slightest damage to consumer protection or undermining our sovereignty or our legal system.

Despite the ubiquity of such clauses, no successful investment protection case has ever been brought against the British government by a foreign company. Yet bilateral investment agreements are not always honored by the countries that sign up to them.

That figure of 1,400 bilateral investment treaties has been rolled out by the European Commission, too.  As I've noted before, the reason these treaties have not proved problematic for either the EU - or the UK - is that they were all with relatively small nations, often emerging economies.  As such, they were generally the *recipients* of EU or UK investment; the ISDS clauses were there to protect the EU and UK investors.  There was no "damage" to the sovereignty of the EU or the UK legal system because there were few or zero companies able to take the UK to ISDS tribunals.

Contrast that situation with TTIP: there we are talking about giving US companies - surely the most litigious in the world - the power to sue the EU and member states (including the UK) over court cases or legislation they think causes their profits to suffer.  Given the US tendency to sue first and ask questions later, this will inevitably lead to a flood of actions against EU nations.  There is simply comparison with those 1400 BITs.

And when the terms are breached, it is companies—small and medium firms, as well as big businesses—that are the losers. In cases like these, access to proper legal redress is vital.

Well, it's important to note that ISDS gives companies *additional* legal redress: they are already able to use the local courts.  The argument that such courts may be biased simply doesn't apply to TTIP - unless Clarke wishes to suggest that the US is a banana republic.  But there's something that he omits to mention here.  Not only could US companies use ISDS provisions in TTIP to sue the EU or members states (or quite possibly both), but the costs for defending those actions would be borne by the tax payer.  That is, this is a classic case of privatising the profits, and socialising the costs:  companies get to keep any awards they win in ISDS tribunals, but it is the public that must pay when countries lose there.

But investment protection is not simply a rod for business to beat up government, as some pressure groups have recently claimed. The arbitration system is independent and cases are decided on their merits. Investors do not win them all.

According to a study by the United Nations Conference on Trade and Development, only 31% of concluded investment-protection cases have been resolved in favor of the investor.

The arbitration system can hardly be called "independent" when tribunals are made up of the same lawyers that represent companies using them.  There are no measures to prevent conflicts of interest.  As for that figure of 31% of cases being resolved in favour of the investor, that's true, but a historical aggregate over the last 20 years.  Here's what happened in 2012 according to UNCTAD's 2013 review of ISDS cases:

In 70% of the public decisions addressing the merits of the dispute, investors’ claims were accepted, at least in part. Nine public decisions rendered in 2012 awarded damages to the claimant, including the highest award in the history of ISDS (US$ 1.77 billion) in Occidental v. Ecuador, a case arising out of a unilateral termination by the State of an oil contract.

That is, more recently, cases have been concluded in favour of corporates.  Worryingly, there is another upward trend  here:

In 2012, 58 new cases were initiated, which constitutes the highest number of known treaty-based disputes ever filed in one year and confirms that foreign investors are increasingly resorting to investor-State arbitration.

Finally, Clarke wheels out the old line about improving ISDS:

Moreover, the European Commission—which is beginning a three-month public consultation on its approach to investment protection in the treaty with the U.S.—has made clear that any agreement will include safeguards to ensure that the arbitration process is transparent and that businesses cannot thwart governments' legitimate public-policy objectives.

First, the "safeguards" that the European Commission has placed in CETA have major shortcomings;  and secondly, it's not at all clear whether the US will accept even those modest changes.  So there is no way Clarke can claim that TTIP will include safeguards that "ensure" that "businesses cannot thwart governments' legitimate public-policy objectives" - it's quite likely there won't be.  And without effective safeguards, the EU and UK would be exposed to the very real - and very grave - problems that ISDS gives rise to.

Full list of previous TTIP Updates.

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

TTIP Update XV

When it became clear that the EU and US were planning to start negotiations for what would be the world's largest trade agreement, people naturally started analysing its various aspects and possibilities.  This formed a kind of conceptual framework for TTIP/TAFTA.  But in a stunning demonstration of the fact that it's foolish to think that those frameworks are anything more than contingent and provisional, Edward Snowden's revelations about massive spying by the NSA (with quite a lot of help from GCHQ) has introduced an important new element.

Although there was some talk of cancelling the negotiations completely in the wake of the leaks, that was never a realistic possibility given the vested interests here.  But as Snowden's documents have continued to appear, each one filling out the picture of total online surveillance, so the anger has been building up in Europe.  One manifestation of that came in a speech from Viviane Reding , Vice-President of the European Commission, EU Justice Commissioner who said:

data protection is a fundamental right. The reason for this is rooted in our historical experience with dictatorships from the right and from the left of the political spectrum. They have led to a common understanding in Europe that privacy is an integral part of human dignity and personal freedom. Control of every movement, every word or every e-mail made for private purposes is not compatible with Europe's fundamental values or our common understanding of a free society.

She then went on to make the following significant call:

This is why I warn against bringing data protection to the [TTIP] trade talks. Data protection is not red tape or a tariff. It is a fundamental right and as such it is not negotiable.

That was back in October.  At around the same time, the  Civil Liberties, Justice and Home Affairs (LIBE) committee was conducting a major inquiry into the mass surveillance of EU citizens.  It has just agreed its final report and recommendations:

The text, passed by 33 votes to 7 with 17 abstentions, condemns the “vast, systemic, blanket collection of personal data of innocent people, often comprising intimate personal information”, adding that “the fight against terrorism can never be a justification for untargeted, secret or even illegal mass surveillance programmes”.

"We now have a comprehensive text that for the first time brings together in-depth recommendations on Edward Snowden's allegations of NSA spying and an action plan for the future. The Civil Liberties Committee inquiry came at a crucial time, along with Snowden´s allegations and the EU data protection regulation. I hope that this document will be supported by the full Parliament and that it will last beyond the next European Parliament's mandate", said rapporteur Claude Moraes (S&D, UK), after the vote.

The recommendations are wide-ranging, but in this update's context here's the key one:

Data protection must be excluded from trade talks

Parliament's consent to the final Transatlantic Trade and Investment Partnership (TTIP) deal with the US “could be endangered as long as blanket mass surveillance activities and the interception of communications in EU institutions and diplomatic representations are not fully stopped and an adequate solution for data privacy rights of EU citizens, including administrative and judicial redress is not found”, MEPs say.

Parliament should therefore withhold its consent to the TTIP agreement unless it fully respects fundamental rights enshrined in the EU Charter, the text adds, stressing that data protection should be ruled out of the trade talks.

It's worth exploring what that means in practice. 

The European Parliament has no power to demand that data protection be removed from TTIP, so instead the LIBE committee wants to apply some pressure indirectly.  Since any final TAFTA/TTIP agreement must be approved by a plenary vote in the European Parliament, a statement that it would not give its approval if there were a data protection chapter means that the European Commission, which is responsible for the negotiations, would be aware of the risk of including it.  It might decide that it would be better to drop data protection in order not to antagonise the European Parliament before the big "yes" or "no" vote on TTIP.

However, the US has been adamant that data protection must be included in TTIP: that's because all the most powerful US Internet companies – Google, Microsoft, Facebook etc. - need it so that they can continue to take data about European citizens out of Europe and use it as they wish.  They do this currently under the so-called Safe Harbour scheme, which is, in fact, not very safe for Europeans – something mentioned by the LIBE committee's report:

MEPs call for the "immediate suspension" of the Safe Harbour privacy principles (voluntary data protection standards for non-EU companies transferring EU citizens’ personal data to the US). These principles “do not provide adequate protection for EU citizens” say MEPs, who urge the US to propose new personal data transfer rules that meet EU data protection requirements.

The Terrorist Finance Tracking Programme (TFTP) deal should also be suspended until allegations that US authorities have access to EU citizens’ bank data outside the agreement are clarified, say MEPs. The EU-US data protection framework agreement to be struck in spring 2014 must ensure proper judicial redress for EU citizens whose personal data are transferred to the US, they add.

If the LIBE committee's recommendation to keep data protection out of TAFTA/TTIP is accepted by the European Parliament, this will create a big problem for the European Commission's TTIP negotiators, since the US will be pushing very hard to keep data protection in the agreement.  The European Parliament vote is scheduled to take place in March, and I'll be writing about what we should be saying to our MEPs nearer the time.

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

TTIP Update XIV

In my previous update, I reported on the major news that the highly-contentious investor-state dispute settlement (ISDS) chapter of TAFTA will be put on hold – nominally, at least.  This is supposedly to give everyone a chance to express their views on the subject.  Of course, whether any of the public's views will be heeded is quite another matter.  In fact, I'm willing to predict that the European Commission will only make a few tiny cosmetic changes to its plans – which it will nonetheless trumpet loudly.  It will also claim that this three-month consultation is "proof" of its transparency, whcn in fact all it does it make the lack of it for everything else even more painfully obvious.

We can probably guess what the promised "proposed EU text for the investment part of the talks which will include sections on investment protection and on investor-to-state dispute settlement, or ISDS" will contain.  That's because various people from the European Commission's TTIP team have emphasised that the "new and improved " version of ISDS that the Commission wants for TAFTA/TTIP will be based on the similarly "new and improved" version found in the EU-Canada free trade agreement, generally known as CETA.

CETA is now stuck in a strange kind of limbo: although the EU and Canada claimed they had a "technical agreement" back in November (whatever that means), they are still refusing to release any draft version of the text.  Even more extraordinary is the fact that the EU's ambassador to Canada has recently said the following:

“We think that it might be in about six months that we have a text, which will be not the final text, I think that for the final text we have to wait two years — it will be 2015,” she said.

It's true that the European Commission has released a kind of teaser for the ISDS chapter in CETA, called "Investment Provisions in the EU - Canada free trade agreement (CETA)" [.pdf].  But much better than that, some kind soul has leaked two key ISDS texts to the Trade Justice Network; these are the Draft CETA Dispute Settlement (dated November 15) and the Draft CETA Investment Text (dated November 21), both available as PDFs from the Trade Justice Network leaked documents page.

The availability of those very recent leaks, which are presumably very close to the latest versions, has allowed the Seattle to Brussels Network to compare them with the claims made in the European  Commission document about ISDS, and to come up with some very interesting discrepancies.  They give us a very good idea of the kind of things the Commission will doubtless be saying in its attempt to convince people that it has addressed the huge problems with investor-state dispute settlement – and why in fact it hasn't really done that.

Here's what  the Seattle to Brussels Network (SBN) has to say [.pdf]:

The first part of the [European Commission's CETA] note deals with the provisions of the investment protection chapter. In the introductory paragraph, the Commission claims that “the EU and Canada agreed to bring very significant clarifications to the key substantive provisions” and that “the arbitrators will now have strict and detailed guidance when these provisions are invoked by an investor”. However this is not the case, especially not with the Fair and Equitable Treatment (FET) standard as shown below.

Here's what the Commission says about FET in its note:

For the first time ever , the CETA agreement provides for a precise definition of “Fair and Equitable treatment”. This will avoid too wide interpretations and provide clear guidelines to tribunals.

That makes clear the central nature of FET definitions in terms of limiting the scope of ISDS.  Here's SBN's response:

Under point 1 of the first part [of its note], the Commission claims that CETA reaffirms the right to regulate. This is not the case. There is not a general paragraph reaffirming this right in the [leaked]  21 November CETA text that would apply to the whole text. There is only such a paragraph in the annex on expropriation. And expropriation is less used to attack general policies than the FET standard.

In other words, the Commission is stretching the truth here.  The same is true in point 2 of the note, as SBN explains:

In its note the Commission only presents the closed list [of situations when a Fair and Equitable Treatment situation arises] which sums up manifest breaches that everyone can agree with (like discrimination on racial grounds) and only one of the other articles. However that other article is misrepresented. The Commission says that it means that “a breach of legitimate expectations is limited to situations where the investments took place ONLY (my emphasis) because of a promise made by the state that was subsequently not honoured”. This is not what the article in the 21 November CETA text says. It in fact says “when applying the above FET obligation a tribunal may take into account whether a Party made a specific representation to an investor to induce a covered investment, that created a legitimate expectation”. It does not say that the investment only took place because of this representation. So the actual scope of the article is broader than the Commission wants us to believe.

In other words, the Commission is not being totally frank here.  The same happens elsewhere:

Under point 5 the Commission says that the agreement makes clear that the obligation to provide  “full protection and security” does not cover protection against changes of laws and regulations. The 21 November CETA text does not say that with so many words. It only says that this obligation refers to physical security of investors and covered investments.

Again, the Commission seems to be claiming more than it should.  In the section dealing with a binding code of conduct for ISDS arbitrators – supposed to address some of the worst flaws in the present system - things are even worse:

In the second part on ISDS the Commission claims under point 4 that CETA has introduced a binding code of conduct for arbitrators. However that code is not there yet. It will be adopted by a joint committee within two years after the entry into force or provisional application (this is undecided in the 15 November CETA ISDS text).

Here's what the actual text from the leaked document says:

The Committee shall, on agreement of the Parties, and after completion of the respective legal requirements and procedures of the Parties, decide to:

a) establish and maintain the list of arbitrators pursuant to Article x- 10(4)(Constitution of the
Tribunal);

b) adopt a code of conduct for arbitrators to be applied in disputes arising out of this chapter, which may replace or supplement the rules in application, and that may address topics including:

i. disclosure obligations;
ii. the independence and impartiality of arbitrators; and
iii. confidentiality.

Notice that it says that such a code of conduct for ISDS arbitrators may includes those topics – but on the other hand, it may not.  SBN goes to point out:

worse, the text says that the arbitrators have to follow this code OR the International Bar Association Guidelines on Conflict of Interest in International Arbitration (which is a general code not geared to ISDS) which means that the code is NOT binding.

That's because arbitrators can simply carry on using the existing guidelines from the International Bar Association, and simply ignore anything more rigorous that CETA might purport to bring in.  Once again, the European Commission's claims don't stand up to scrutiny.

There's more bad news on the transparency front, where the Commission boasts about providing:

Full transparency - all documents will be public, all hearings open, interested parties (NGO’s) can make submissions. This is the first agreement applying in substance the new United Nations rules on transparency in ISDS (UNCITRAL).

Sounds fab, no?  Alas, this is yet more baloney from the Commission.  As SBN points out, there are some massive loopholes that render this grand-sounding promise worthless.  Here's the leaked text:

1. Subject to paragraphs 2 and 3, hearings shall be public.

2. Where there is a need to protect information or the integrity of the arbitral process pursuant to Article 5, the arbitral tribunal shall make arrangements to hold in private that part of the hearing requiring such protection.

3. The arbitral tribunal may make logistical arrangements to facilitate the public’s right of access to hearings (including where appropriate by organising attendance through video links or such other means as it deems appropriate).

The SBN notes that another of the European Commission's strongest claims is also useless in practice:

Under point 10 the Commission states that there is “absolute clarity” that a state cannot be forced to repeal a measure. The 15 November CETA text does indeed allow the Arbitration tribunal to only impose monetary damages or restitution of property (which may also be replaced by monetary damages). However it is clear that the threat of such damages or the threat to use the ISDS may be enough for governments to repeal measures as has happened so often in out of court settlements between the investor and the targeted governments.

Yes, it may be true that the EU or Canada cannot be "forced" to repeal legislation, but the threat of hundreds of millions of euros in fines may well encourage them to do that of their own "free" will.

Finally, SBN has spotted something really important that for some reason the European Commission didn't want to bang the drum about:

The chapter foresees wide competences for a joint “Committee on Services and Investment” so that it can – after completion of the respective legal requirements and procedures of the Parties - adopt and propose amendments, rules, interpretations, etc. This will add to make CETA a “live” agreement that can be adapted to circumstances. Question is however how the parliaments, civil society and the general public will be able to scrutinise the continuous expansion of the agreement.

What that means is that the ISDS measures in CETA aren't fixed, but can always be altered afterwards.  The whole edifice turns out to be built on sand, since the European Commission's claims about  how it has improved ISDS – claims that, as we've seen, are dubious at best – become provisional and possibly temporary. 

Worryingly, this is exactly the approach that the EU and US seems to be taking with the regulatory chapter for TAFTA/TTIP.  As I noted in TTIP Update VIII, the plan is to turn TAFTA/TTIP into a "living agreement" through a "Regulatory Council", essentially made up of corporates that will have the ability to block EU and US legislation that they don't like, and help push through things that they do.  It's an extremely clever approach that allows criticisms to be de-fanged by starting off with a relatively modest base agreement, and then gradually subverting over the years.  The CETA leaks show the same to be true for ISDS.

What the Seattle to Brussels Network's analysis demonstrates is the clear gap between rhetoric - what the European Commission is saying - and reality - what it is doing behind the scenes.  We are only able to expose that attempt to mislead the public thanks to leaks of the negotiation documents that give us the full picture.  It's yet another reasons why we need full transparency – all tabled TTIP document made public immediately - not the token kind currently being offered by the Commission with its 3-month ISDS  consultation.

It's also why we should be extremely sceptical about the European Commission's claims that it will address ISDS's serious deficiencies, and that including it in TAFTA won't threaten European sovereignty and democracy.  If CETA is anything to go by, that's simply not true.  In any case, if something you don't need is broken, you don't try to fix it, you throw out.  We must do the same for ISDS in TTIP.  The three-month pause must become a permanent moratorium.

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

TTIP Update XIII

As regular readers will have noticed, so far the dominant theme of these TAFTA/TTIP updates has been investor-state dispute settlement (ISDS).  That's largely because it represents such a clear threat to national sovereignty, that it's the most pressing issue, even this early in the negotiations.  Naturally, I'm not the only person to think that, and many others, including leading civil society organisations, have expressed their grave misgivings about the inclusion of what amounts to a chapter placing foreign corporations above nations.  It seems that crescendo of concern has had an effect.

In a rather surprising turn of events, the European Commission has just published the following:

EU Trade Commissioner Karel De Gucht today announced his decision to consult the public on the investment provisions of a future EU-US trade deal, known as the Transatlantic Trade and Investment Partnership (TTIP). The decision follows unprecedented public interest in the talks. It also reflects the Commissioner's determination to secure the right balance between protecting European investment interests and upholding governments’ right to regulate in the public interest. In early March, he will publish a proposed EU text for the investment part of the talks which will include sections on investment protection and on investor-to-state dispute settlement, or ISDS. This draft text will be accompanied by clear explanations for the non-expert. People across the EU will then have three months to comment.

Against a background of a dogged refusal to release any texts, or to ask the public in any way about its opinion, that's a startling U-turn.  It's clearly taken place because the European Commission has finally realised that trying to re-gain control of the narrative by releasing a few "fact sheets" – like the one I discussed in a previous update -  just isn't working.  Unfortunately for the Commission, it doesn't seem to have come up with any new, compelling arguments why ISDS must be part of TTIP:

EU Trade Commissioner Karel De Gucht said: "Governments must always be free to regulate so they can protect people and the environment. But they must also find the right balance and treat investors fairly, so they can attract investment. International investment agreements like TTIP should ensure they do both. But some existing arrangements have caused problems in practice, allowing companies to exploit loopholes where the legal text has been vague. I know some people in Europe have genuine concerns about this part of the EU-US deal. Now I want them to have their say. I have been tasked by the EU Member States to fix the problems that exist in current investment arrangements and I'm determined to make the investment protection system more transparent and impartial, and to close these legal loopholes once and for all. TTIP will firmly uphold EU member states' right to regulate in the public interest."

As you can see, that is still assuming that the question is how to make ISDS better, rather than asking whether we need it.  Making it better will be hard, because it will requires the US to agree to any new measures.  Luckily, we don't need to hold those discussions, since any form of ISDS is completely unnecessary.  We know that because the Europe Commission's own figures prove it:

Total US investment in the EU is three times higher than in all of Asia.

EU investment in the US is around eight times the amount of EU investment in India and China together.

EU and US investments are the real driver of the transatlantic relationship, contributing to growth and jobs on both sidesof the Atlantic. It is estimated that a third of the trade across the Atlantic actually consists of intra-company transfers.

Transatlantic investment is not just flourishing, it is flourishing like nowhere else on earth.  So there is basically no problem to solve, and ISDS will add nothing but costs, both economic and political.  But you don't have to take my word for that.  I recently came across a fascinating document on the UK government's main gov.uk site entitled "Costs and benefits to the UK of an EU-US investment protection treaty" that explores precisely this issue of whether it is worth adding ISDS to TTIP.

Its genesis looks slightly complicated.  It is branded "LSE Enterprise", and its three authors come from the London School of Economics (LSE), University of Oxford and University of Wisconsin.  So it seems to be an independent report commissioned by the Department for Business, Innovation & Skills.  That means it can't be regarded as official UK government policy, but the fact that it appears on gov.uk means that it is still an official document.  It was published on 22 November, but I've only come across it.  I imagine that's partly because the UK government didn't want to publicise it too much, given its findings.

It runs to some 44 pages, but the final section sums things up neatly.  Its main conclusion is as follows:

There is little reason to think that an EU-US investment chapter will provide the UK with significant economic benefits. No two countries in the world exchange more investment than the UK and the US, and there is no evidence that US or UK investors view either country as suffering from the kinds of political risks against which investment treaties are supposed to protect. Moreover, existing evidence suggests that the presence of an EU-US investment chapter is highly unlikely to encourage investment above and beyond what would otherwise take place. US investors have generally not taken much notice of investment treaties in the past when deciding where, and how much, to invest abroad – even when dealing with far more questionable jurisdictions than the UK.

It also points out that:

There is little reason to think that an EU-US investment chapter will provide the UK with significant political benefits. The political relationship between Washington and Whitehall is exceptionally strong, and we are aware of no evidence that it is vulnerable to a meaningful risk of investor-state disputes that would become undesirably “politicized” in the absence of an investment treaty. Secondly, we find it unlikely that an EU-US agreement would make significant negotiating partners – like India and China – more or less willing to agree to an investment treaty with the EU. Finally, it is unclear whether the US is particularly keen on an investment protection chapter with the EU, which means the Commission may not be able to use such a chapter as an effective ‘bargaining chip’ in other trade and/or investment negotiations with Washington.

That point about China and India is crucially important: one of the reasons that the European Commission likes to claim we "must" have ISDS in TAFTA/TTIP is that it will set a precedent for future agreements with China and elsewhere.  The LSE team believes that this would be unlikely to make them more willing to accept a chapter on corporate sovereignty.

The LSE report then goes on to say:

There is some reason to expect an EU-US investment chapter will impose meaningful economic costs on the UK.

And also:

There is some reason to expect an EU-US investment chapter to impose meaningful political costs on the UK.

It summarises the entire situation as follows:

In sum, an EU-US investment chapter is likely to provide the UK with few or no benefits.

This is the key point that we need to get across when Mr De Gucht's consultation on ISDS opens: that his attempts to get rid of the "bad" bits of investor-state dispute settlement miss the point.  The fact is, ISDS simply has few if any benefits for any of the EU's member states, but many huge potential costs and problems for European citizens.  It should be dropped completely from TAFTA/TTIP.

Full list of previous TTIP Updates.

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

TTIP Update XII

One section of TAFTA/TTIP has already emerged as particularly problematic: that concerning the investor-state dispute resolution mechanism (ISDS).  As I've noted in previous updates, the European Commission is so worried on this front that it has produced not just  one  but several documents that seek to stem this rising tide of concern.

It's one measure of the lack of success of TTIP supporters in convincing people that ISDS is really quite harmless that a new reason for embracing it has been added.  It's expressed well in this article from the Australian site Inside Story:

The problem with scrapping ISDSs, according to the Commission, is that the US legal system is not set up to deal with international investment agreements. “Quite simply, TTIP cannot be enforced in US domestic courts,” Clancy says. “So, this is about ensuring [that] investors have the right to a certain amount of protection.”

“We need to ensure that the environment is right, the legal stability is there,” he says. “That is actually one of the keys to attracting investment – particularly for SMEs [small to medium enterprises]. They need to feel comfortable about putting their money in the trans-Atlantic marketplace.”

As I pointed out before, the last argument is absurd.  We don't need to "attract" trans-Atlantic investment in either direction, because it is already enormous, as the European Commission's own figures prove:

Total US investment in the EU is three times higher than in all of Asia.

EU investment in the US is around eight times the amount of EU investment in India and China together.

EU and US investments are the real driver of the transatlantic relationship, contributing to growth and jobs on both sides of the Atlantic. It is estimated that a third of the trade across the Atlantic actually consists of intra-company transfers.

Since we clearly don't need to "attract"  trans-Atlantic investment, we also clearly don't need to bring in the extremely dangerous ISDS.  But I'm confident that the European Commission won't let a little thing like facts get in the way of its FUD, so here I'd like to examine the first part of Clancy's comment, quoted above.

He says "TTIP cannot be enforced in US domestic courts". I've not managed to obtain expert advice on whether that's true, but one person who believes it may be is Ante Wessels, writing on the Foundation for a Free Information Infrastructure's ACTA blog about an interview with Vital Moreira (remember him?):

Moreira notes that in the US the only recourse for a foreign investor is to argue that a government violated US or state law.

That is correct. The same is of course true for local (US) investors, they too can only invoke US or state law. The US is generally regarded as having strong protection of investments and a good court system, so I do not see the problem. Moreira’s words imply that TTIP will have stronger investment protections than US and EU law.

That is legislation by the back door.

In the US, the additional protections will not be available for local investors. They will only be available for EU investors, through ISDS.

That’s discrimination.

Somebody in the US has obviously noticed that huge problem.  Last week an important Bill was presented there that would give President Obama what is known as "fast track authority" [.pdf].  This essentially enables him to negotiate trade deals without needing to check with the US Congress until right at the end, when the agreement has been finished.  At that point, US politicians get just one vote – "yes" or "no" – and can't change anything. 

It's a hugely important tool for the US, because without it, Congress is likely to demand changes to the trade agreement, which would then have to be put to the other negotiating partners, who might then start asking for their own changes, and the whole thing would start unravelling.  With fast track authority, Obama and his team are able to obtain an agreement that can't be changed, and is unlikely to be rejected.  Not coincidentally, this is exactly how it works in the EU, where the European Parliament has only one opportunity to vote for or against, and no ability to change things.

Given that the fast track authority bill essentially hands over all of the elected politicians' power to the US President and his team, it tries to define some of the outcomes that it wants from trade agreements.  There are many of these, but hidden away towards to the end, in a section entitled "Sovereignty", is the following:

Recognizing that United States law on the whole provides a high level of protection for investment, consistent with or greater than the level required by international law, the principal negotiating objectives of the United States regarding foreign investment are to reduce or eliminate artificial or trade distorting barriers to foreign investment, while ensuring that foreign investors in the United States are not accorded greater substantive rights with respect to investment protections than United States investors in the United States, and to secure for investors important rights comparable to those that would be available under United States legal principles and practice

Notice the key phrase: "ensuring that foreign investors in the United States are not accorded greater substantive rights with respect to investment protections than United States investors in the United States".  But as Wessels points out in his post, that is exactly what ISDS does: in the case of TTIP, it would give EU investors in the US the option to use both TTIP and ISDS to sue the US government – something not available to US investors in the US.  So it would seem that Clancy's "protection" is likely to be worthless, since a pre-condition for granting fast track authority is that the Obama administration agrees not to grant more protection to foreign investors than to US investors.  The US government is unlikely to want to grant home investors the option of suing it using ISDS courts, since that is likely to open the litigation floodgates.

Now let's look at the EU side of things.  Again, Wessels has a great analysis of the situation:

In the EU, the extra investment protections will become the “law of the land”, according to Mr Moreira.

Investment treaties give foreign investors extra rights. So, US investors will have more rights before EU courts than EU companies?

On top of that US investors can also use ISDS arbitration, not available to EU companies.

That is, unlike in the US, investors in the EU get extra rights, plus the ability to bring cases before ISDS tribunals – not available to EU companies investing in Europe.  But as Wessel points out, there's an even deeper problem to do with European law:

Direct effect of investment treaty protection (“law of the land”) is a serious issue. Would EU courts follow the interpretations of ISDS tribunals?

That would put a captive in-crowd on top of the EU legal system.

If EU courts do not follow the interpretations of ISDS tribunals, investors can use ISDS tribunals to overturn the EU courts’ decisions.

That would put a captive in-crowd on top of the EU legal system.

That is, not only does ISDS put corporations on the same level as nations, but it places ISDS tribunals above even the highest EU courts.  That's because either EU courts would be forced to make ISDS tribunal decisions part of EU law, or else the EU and its member states would find themselves sued by US investors even though the EU courts say they ares in the right.

As a result, EU companies are guaranteed to get a bad deal: disadvantaged in the EU, but without corresponding advantages in the US, because the fast track authority bill explicitly forbids this happening.  That means that ISDS makes TTIP a one-sided, unfair deal for Europe, and is yet another reason why it should be removed from the negotiations completely.

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

TTIP Update XI

Because of the absurdly and unjustifiably secret nature of the TAFTA/TTIP negotiations, piecing together what is going on is a matter of looking for scraps of information wherever they can be found, and then trying to piece together the bigger picture.  In my last two updates, I analysed some interesting attacks that the European Commission made on articles that dared to be sceptical about TTIP.  In this one, I'll examine another important source: meetings with those that are privy to the negotiations.

It was held just before Christmas, and is reported here by Ulf Pettersson, policy advisor to the Pirate Party MEP, Amelia Andersdotter:

Taking place at the American Chamber of Commerce offices in Brussels, the purpose of the two hour exchange was to strategize between businesses and the Commission in order to make sure that the maximum level of new IP restrictions will be written into the treaty. Present at the meeting were representatives from a range of the very largest multinational corporations. Among these were TimeWarner, Microsoft, Ford, Eli Lilly, AbbVie (pharmaceutical, formerly Abbott) and the luxury conglomerate LMVH. The participant list also included representatives from Nike, Dow, Pfizer, GE, BSA and Disney - among others. Also present was Patrice Pellegrino from OHIM [Office for Harmonization in the Internal Market], the EU/Commission agency responsible for trade marks in the EU.

Controversially, the supposedly neutral Commission negotiator [for Intellectual Property in TTIP, Pedro Velasco Martins] and the OHIM representative not only defined themselves as allies with the businesses lobbyists. They went far beyond this and started to instruct the representatives in detail on how they should campaign to "educate" the public in order to maximise their outcome in terms of industry monopoly rights. In particular, concerns from elected representatives, such as the European Parliament -- as well as civil society criticisms about ever increasing intellectual property rights -- were to be kept out of the public debate.

It turns out that this alliance between the European Commission and major companies like Microsoft is not simply at the general level: the meeting revealed the existence of an explicit "Christmas list" of new demands in the area of intellectual monopolies – principally patents and copyright.  As Petterson points out, that's hugely significant:

Previously - towards the public and the Parliament - the Commission has created the impression that intellectual property rights will be downplayed. The only IP right mentioned has been geographical indications, a minor issue which few are concerned about. In reality, the Commission now revealed that they have received "quite a Christmas list of items" on IP from corporate lobbyists and that they are working to implement this list. The list has already been discussed with the US in several meetings, in person as well as online.

The Christmas list covers almost every major intellectual property right. On patents, industry had shown "quite an interest" especially on the procedures around the granting of new patents. On copyrights the industry wants to have the "same level of protection" in the US and EU; in reality this always means harmonization up which results in more restrictions for the general public.

This is really quite shocking, because the Commissioner with overall responsbility for TAFTA/TTIP, Karel De Gucht has explicitly stated that TTIP will not be ACTA by the backdoor:

ACTA, one of the nails in my coffin. I'm not going to reopen that discussion. Really, I mean, I am not a masochist. I'm not planning to do that.

If the Commission advances new basic legislation, which I think she should, we will revisit the question, but I'm not going to do this by the back door.

And yet ACTA by the backdoor is precisely what one of the EU's senior negotiators seems to be suggesting is coming:

According to the negotiator, the most repeated request on the Christmas list was in "enforcement". Concerning this, companies had made requests to "improve and formalize" as well as for the authorities to "make statements". The Commission negotiator said that although joint 'enforcement statements' do not constitute "classical trade agreement language" -- a euphemism for things that do not belong in trade agreements -- the Commission still looks forward to "working in this area".

Enforcement was one of the most contentious issues in ACTA, and was one of the reasons that the European Parliament killed it off last year.  So the big question is: what is going on here?  Was De Gucht simply trying to mislead us?  Or is one of his staff taking the initiative on his own, and undermining De Gucht's statement that TTIP will not be ACTA by the back door?  Presumably we will find out as more information leaks out.  But Pettersson's report on this meeting highlights a number of disturbing issues.

First, that the EU's chief negotiator on intellectual monopolies sees US companies as his natural allies, and the European public as the enemy:

The Commission and OHIM officials both made clear they were on the same side as the largely American companies present. At the same time, European consumers and civil society were described as either uneducated or as an enemy that needs to be fought.

If that is really what he really thinks, Martins should have the decency to resign.  After all, it is largely the European public that pays his salary, and so this kind of behaviour, if confirmed, is both insulting and ungrateful.  In fact, if this is indeed what he said, De Gucht should simply fire him, both for putting the interests of US companies above those of the EU public, and for contradicting what De Gucht has publicly stated.

But the other deeply troubling point is that we don't actually know what the real position of De Gucht or the European Commission is on this, or on anything else.  Instead, we are forced to shadow box with what we glean from meetings like the one last December, with all the risks of misunderstandings that this naturally entails.  If the European Commission wishes to avoid this, and wants to counteract the impression that it has nothing but contempt for the people that also pay its wages, it should routinely released all tabled EU documents.

After all, once they have been revealed to the US negotiators, tabled documents are no longer secret.  That's not least because the US negotiators are believed to share everything with hundreds of companies and lobbyists, which means that the well-connected (and those with good spies) can easily find out what's going on.  The only people that are kept in the dark by this process are the ordinary people in whose name the negotiations are theoretically being conducted.  That's just unacceptable in an age where transparency and openness are rightly taken for granted.

Full list of previous TTIP Updates.

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

TTIP Update X

Last week I wrote about an attack on Corporate Europe Observatory (CEO) by the European Commission over a leak concerning TAFTA/TTIP, which the former had obtained and published.  As my lengthy analysis indicated, what was most remarkable about that response is that it failed to answer the points made by CEO.  That naturally begs the question: so why did the European Commssion bother?

I think the answer is clear.  It was rattled that CEO had revealed its emerging plans to use a new supranational regulatory body to gradually replace the European precautionary system with one that is optimised for profits.  That meant it needed to try to "prove" it wasn't really happening – something it signally failed to do.  More generally, its extremely rapid response shows that the European Commission fears that it is losing control of the TAFTA/TTIP narrative, which is supposed to be all about growth, jobs, profits and happiness sempiternal.

That view is bolstered by the fact that no less a personnage than Karel De Gucht, the European Commissioner for trade, and the person with overall responsibility for the TTIP negotiations, entered into battle himself to rebut an article by George Monbiot in the Guardian.  Monbiot's piece was entitled "The lies behind this transatlantic trade deal", and it rightly concentrates on the threat posed to national and European sovereignty by investor-state dispute resolution (ISDS), and on the extraordinary and unnecessary secrecy:

Panic spreads through the European commission like ferrets in a rabbit warren. Its plans to create a single market incorporating Europe and the United States, progressing so nicely when hardly anyone knew, have been blown wide open. All over Europe people are asking why this is happening; why we were not consulted; for whom it is being done.

De Gucht did not like this:

George Monbiot, in his article on the negotiations for a Transatlantic Trade and Investment Partnership, claims the European commission has tried to "keep this process quiet" (Chickens in chlorine? It's what free trade's about, 3 December). This is laughable. Every step of these negotiations has been publicly announced and widely reported in the press. The commission has regularly consulted a broad range of civil society organisations in writing and in person, and our most recent meeting had 350 participants from trade unions, NGOs and business.

Well, I suppose you have to admire the bare-faced cheek of denying reality.  As far as I can tell – and I do follow this area pretty closely - there have been no "regular" consultations with civil society organisations; in fact there have been vanishingly small meetings with them on any basis.  As CEO found out (but only by demanding the information under a FOI request), of 130 "meetings with stakeholders" that took place earlier this year, 119 of them were with large corporates and their lobbyists.

And note the clever phrasing: "Every step of these negotiations has been publicly announced and widely reported in the press."  That's true – the *steps* have been announced, but we have been told nothing about what was discussed.  That's like claiming that people have been able to read books even if all they were told were the titles.

Interestingly, the evidence that ISDS is a real danger to democracy is now so strong, that even De Gucht is forced to admit it:

We do understand some of the concerns Monbiot and others have about investor-state dispute settlement. We are well aware of the cases he cites, including the "nuclear company contesting Germany's decision to switch off atomic power" and the fact that "the tobacco company Philip Morris is currently suing Australia [which introduced plain packaging for cigarettes] through the same mechanism in another treaty". That is why we want the EU-US trade deal to fully enshrine democratic prerogatives.

That's a pretty big admission, and shows the power of facts to combat empty rhetoric.  Alas, the "solution" offered is the usual one:

EU investment agreements will explicitly state that legitimate government public policy decisions – on issues such as the balance between public and private provision of healthcare or "the European ban on chicken carcasses washed with chlorine" – cannot be over-ridden. We will crack down on companies using legal technicalities to build frivolous cases against governments. We will open up investment tribunals to public scrutiny – documents will be public and interested parties, including NGOs, will be able to make submissions. Finally, we will eliminate any conflicts of interest – the arbitrators who decide on EU cases must be above suspicion.

Notice the verb here: "will" – designed to convey absolute certainty.  Except that TAFTA/TTIP is a two-sided agreement, and the EU is in no position to demand anything.  I don't doubt that it will indeed ask for all the things listed above in an attempt to address the criticisms of ISDS (not that it will, but at least it is trying); however, I also don't doubt that the US negotiators will simply refuse, since overcoming "the European ban on chicken carcasses washed with chlorine" is one of their stated aims in TAFTA/TTIP.  That's precisely why they want ISDS in the agreement, and precisely why the European Commission would be insane to agree to its presence.

Despite admitting that ISDS is inherently problematic, De Gucht goes on to say:

But we do not take Monbiot's extreme view that investment protection agreements (IPAs) are "toxic" attempts to put monster corporations in charge of our destinies. His exaggerated fears are no reason to abandon a deal with the US that could create £100bn in new growth for Europe. (Contrary to Monbiot's claims, the economic impact of free trade agreements has been positive. For example, Europe's agreement with South Korea has seen our exports rise by 24% in its first two years.)

Readers of this blog will recall my earlier analysis of that £100bn, which is the 119 billion euros that appears in the research carried out for the European Commission.  In any case, it represents the best-case  outcome of TAFTA/TTIP, and this will only be achieved through massive deregulation, with a concomitant lowering of health, food and environmental standards, despite what the Commission claims.  So even if TAFTA/TTIP "could" create £100bn in new growth for Europe, that would only be in 2027, and at huge social cost – something that De Gucht naturally omits to mention.

He also fails to note another salient fact when he writes that Europe's free trade agreement with South Korea saw a 24% rise in exports in its first two years.  According to the European Commission's own Web pages on the agreement:

European companies are the largest investors in South Korea.

That's relevant to TAFTA/TTIP, because the key argument for including ISDS in the transatlantic deal is that such investor protection is vital if companies are going to invest in Europe and thus create jobs.  The interesting thing is that the trade agreement between Europeand South Korea does not have an ISDS chapter, and yet Europeans are happy to invest massively in the latter country.  Why on earth would they risk doing that? Simple: because they trust the legal and political systems to act fairly in the case of any disputes over investments.

It is the height of ridiculousness to assert that ISDS is needed in TAFTA/TTIP in order to provide the same guarantees: the legal and political systems in both the EU and US are certainly as well developed as those in South Korea, and so ISDS is completely unnecessary.  As George Monbiot in his Guardian article quotes me as saying on the subject: "The benefits are slight and illusory, while the risks are very real."  Accepting large risks for small benefits shows appalling business judgement: if De Gucht can't see that, and won't drop ISDS in order to protect Europe from those dangers, perhaps he should hand the job on to someone who does and will.

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