TTIP Update XXIV

In an early update, I wrote about the leak of the European Commission's communication strategy for "overcoming public scepticism" about TAFTA/TTIP.  The key section was probably the following:

Making sure that the broad public in each of the EU Member States has a general understanding of what TTIP is (i.e. an initiative that aims at delivering growth and jobs) and what it is not (i.e. an effort to undermine regulation and existing levels of protection in areas like health, safety and the environment).

That clearly hasn't succeeded - we've seen increasing discussion and concern about how there could be a regulatory race to the bottom, and about the elevation of corporations to the same level as nations through the unbridled power of the investor-state dispute settlement (ISDS) mechanism.  The failure to control the narrative about the latter has led to the European Commission's consultation on ISDS - although, as I noted in my previous update, that's largely a PR exercise, and won't make any substantive difference to what the Commission and its negotiators will do.

However, in one respect, the Commission's communication strategy is going according to plan: the vast majority of reporting on TTIP accepts at face value not just the figures that are being bandied around for the supposed gains from TTIP, but the larger underlying assumption that there will in fact be gains at all.  Part of the problem is that there is strikingly little research into the benefits and costs of TTIP.  That's truly extraordinary: no one would think of setting up a business without investigating both exhaustively, by trying to forecast the outcome of various alternatives.  And yet the European Commission wants us to buy into the largest global trade agreement ever attempted with far less research or justification than most of us would need before even buying a second-hand car.

It is doing that by rolling out the same numbers every time it talks about the claimed benefits: those found in research which it paid for, from the Centre for Economic Policy Research (CEPR).  I've talked about these in earlier updates, and discussed why they are not at all what they seem - and certainly not the massive gains the European Commission keeps talking about.  But my view hardly carriers much weight against the economists that put it together.  What we need is another qualified team to look critically at the assumptions and results.  Fortunately for us, the Confederal Group of the European United Left/Nordic Green Left (GUE/NGL) has commissioned a group of researchers to do precisely that.

Now, it might be claimed that its report, "Assessing the Claimed Benefits of the Transatlantic Trade and Investment Partnership" [.pdf] inevitably brings with it an agenda.  But exactly the same is true of the research carried out on behalf of the Commission.  What's important is that we have a range of views on the economic impact of TTIP, and that we don't just assume one study is the last word on the matter - which is essentially where we are today.  What makes the new study, which has been put together by the Austrian Foundation for Development Research, particularly valuable is that it does not restrict itself to the main CEPR work, but looks at all the available studies, of which there are now four - still a frighteningly small number given what is at stake.  Here's the basic result:

All of the four scrutinized studies report small, but positive effects on GDP, trade flows and real wages in the EU. GDP and real wage increases are however estimated by most studies to range from 0.3 to 1.3 %, even in the most optimistic liberalization scenarios. These changes refer to a level change within 10 to 20 years (!), annual GDP growth during this transition period would thus amount to 0.03 to 0.13 % at most.

This confirms what I wrote in Update XXI: the possible benefits are really very small.  What's important to note here is that that this emerges from four separate analyses.  However, the new study GUE/NGL mentions another crucially important effect of TTIP - one that I've rather underestimated:

According to three studies, TTIP benefits will however come at the cost of reducing bilateral trade between EU Member States. In a deep liberalization scenario, intra-EU trade could fall by around 30 %. The reason for this is that these EU countries’ exports will be substituted for by cheaper Extra-EU imports.

This makes sense: as the barriers to selling in the US drop, so more EU trade will take place with it.  However, one of the collateral effects will be that EU countries sell less to each other, since they can presumably make more money sending their goods overseas.  This leads to a paradoxical effect:  a treaty that is partly being sold on the basis that it will strengthen the EU, will actually hollow it out, as intra-EU trade diminishes.  That means people who support TTIP because they believe it will re-inforce Europe will need to think again: TTIP might actually be the final blow that leads to the disintegration of the European Union, turning it into a looser economic grouping.

That's one important fact to emerge from this analysis; arguably even more important is the new work the Austrian team have carried out to address what is perhaps the biggest flaw in the European Commission's argument that TTIP will bring huge benefits - the fact that the corresponding costs are not calculated to allow an overall balance to be drawn.  Again, it is extraordinary that the Commission is asking people to support TAFTA without revealing the costs that are likely to be involved.  Here's one important category of them:

Adjustment costs are mostly neglected or downplayed in the TTIP studies. This refers in particular to macroeconomic adjustment costs, which can come in the form of (i) changes to the current account balance, (ii) losses to public revenues, and (iii) changes to the level of unemployment.

The first of these is unlikely to be major, but the other two could well be. After all, if tariff barriers are eliminated, there is bound to be some loss of government revenue:

We would thus estimate cumulated income losses to be in the order of €20 billion over a period of 10 years, also depending on tariff exemptions and phase-in periods for sensitive goods.

Three of the studies assume that there will be no permanent unemployment as a result of TTIP (quite a big assumption, given the current economic situation), while one predicts unemployment will be reduced.  But even in that case, there is likely to be worker displacement, as the effects of TTIP are felt differently in different industries.  This will lead to temporary unemployment, retraining, and probably downgrading of jobs.  All of these impose costs on the economy:

A rough calculation yields annual expenses for unemployment benefits of between €0.5 – €1.4 billion during a TTIP implementation period of 10 years. Thus a cumulative €5 – €14 billion might be necessary to finance a part of the adjustment costs on the labor market, with additional costs for re-training and skills-acquisition not included in this amount. To this amount, a further loss of public revenue from foregone tax income and social security contributions between €4 - €10 billion has to be added.

The final category of costs is perhaps the most important, because it exposes another massive assumption in the European Commission's figures:

Another type of costs ignored refers to the regulatory change resulting from TTIP. All studies, but particularly the Ecorys study, assume that a reduction of NTMs [non-tariff measures] is welfare-enhancing. This ignores that NTM such as laws, regulations and standards pursue public policy goals. They correct for market failures or safeguard collective preferences of a society. As such they are themselves welfare-enhancing. The elimination or alignment of an NTM thus will imply a social cost for society. This applies equally to NTM elimination, harmonization and mutual recognition.

This is something else I had not appreciated.  The removal of "non-tariff barriers/measures" is one of the most contentious areas of TTIP since those "barriers" are things like health and safety regulations.  The fact that their removal is being treated as "welfare-enhancing" - improving the lot of society - is a truly outrageous redefinition of both society and welfare.  It might well boost the bottom lines of companies that pollute the environment, say, but that can hardly been called "welfare enhancing".  Thus what are currently being counted as *benefits* are probably actually costs, as the Austrian economists go on to point out:

the elimination of NTMs will result in a potential welfare loss to society, in so far as this elimination threatens public policy goals (e.g. consumer safety, public health, environmental safety), which are not taken care of by some other measure or policy. The analysis of NTMs in the Ecorys study completely ignores these problems. Instead, it is assumed that around 50 % or 25% of all existing NTMs between the EU und the US are actionable, i.e. can be eliminated or aligned to some international standard, while CEPR assumes a 25% actionability level. This includes sensitive sectors such as foods & beverages, chemicals, pharmaceuticals and cosmetics or automotives. In order to arrive at its optimistic welfare estimations, strong reductions/alignments of NTMs in precisely those sectors are necessary, where the safeguarding of public policy goals is perhaps most crucial. It is highly doubtful that such high levels of actionability could be implemented without any losses to the quality of regulation in the public interest. Though subject to considerable uncertainty, the incurred social costs of TTIP regulatory change might be substantial, and require careful case-by-case analysis.

That's putting it mildly.

As I hope you can see, this is a really important contribution to the TTIP debate, since it not only examines existing studies, and subjects them to an extremely detailed analysis running to dozens of pages, but it also raises crucial issues that have so far been almost completely ignored.  Key among those are the costs of TTIP - which turn out to include aspects that somehow have been magically transformed into benefits, simply by ignoring their true impact on the public.

That's just one among many reasons to take a look at this work.  Although the technical critique of the impact assessment studies are hard going unless you are an economist, the report's authors have very thoughtfully provided not just one, but two summaries: a condensed one, and an extended version.  These do not require any technical econometric knowledge and should be read by anyone who wants to form a more balanced view on what the real benefits and costs of TTIP are likely to be.

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TTIP Update XXIII

In my last update, I noted that the problems with investor-state dispuate settlement (ISDS) are multiplying, as lawyers latch on to the fact that it is an extremely efficient way of extracting large sums of money for very little cost (for example, I mentioned one case where an investment of $5 million led to an award of $900 million for "lost profits".)  In fact, things are so bad even the European Commission has noticed.

That's partly because of the enormous pushback from people once they twigged what ISDS entails.  Until a few months ago, this was an extremely obscure aspect of an inherently dry and dull area, so it's no wonder that few people knew or cared about it.  But once they realised that it would have immense impact on their lives - both directly in terms of the huge pay-outs that *they* would have to fund through taxes, and indirectly in terms of the chilling effect on future legislation and regulation people started to make their concerns known.

The most dramatic manifestation of that upswell of outrage is that the European Commission unexpectedly announced that it would be holding a "consultation" on ISDS.  That was doubly significant.  It showed that the Commission was sensitive to public outcry, and it also created a precedent: if a consultation could be held on ISDS, why not on all the other aspects of TTIP?

However, a big question mark hung over the consultation - for example, some have seen it as a cynical ploy to remove ISDS from public discourse until *after* the imminent elections for the European Parliament, so that they are not an important theme there.  There is now a home page for the consultation and its associated documents, and it's well-worth examining them in order to gain insights into the Commission's thinking on this score.

The "Consultation notice" [.pdf] contains some interesting background:

Given the strong public interest in this issue the European Commission is consulting the public in the EU on a possible approach to investment protection and ISDS that contains a series of innovative elements outlined below and that the EU intends to use as the basis for t he TTIP negotiations. The key issue on which we are consulting is whether the EU’s proposed approach for TTIP achieves the right balance between protectin g investors and safeguarding the EU 's right and ability to regulate in the public interest .

That attempt to create a false "balance" between "protecting investors" and "safeguarding the EU 's right and ability to regulate in the public interest" is perhaps the clearest indication of why we do not need ISDS.  There should be no question of trading away the right to regulate in return for investor protection: they belong to entirely different policy universes.  Their complete independence is demonstrated clearly by some statistics on the European Commission's own site.  I make no apology for wheeling them out yet again because they drive a stake through the heart of the Commission's argument for ISDS:

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.

There is no need to trade off sovereignty for "investor protection", because people are already investing both ways across the Atlantic on a scale that is unmatched in the rest of the world. There is simply no problem that needs solving, and so ISDS is just unnecessary.

The rest of the Consultation notice tries to ignore this key fact by quoting a bunch of irrelevant statistics:

So far, the EU 's Member States have concluded about 1400 Bilateral Investment Treaties on the protection of investment. Virtually all such agreements include ISDS. While nine EU Member States currently have bilateral investment treaties with the US, other s do not. This situation means
that some EU investors in the US are treated differently co mpared to other EU investors, and that US investors have more rights in some EU Member States than in others .

As I've noted before, those 1400 bilateral treaties were essentially the EU imposing onerous conditions on developing countries; ISDS was there to be used as an offensive weapon.  Including it in TTIP will simply hand 50,800 US subsidiaries the most powerful legal weapon they could possibly wish for.

And as for the nine EU Member States that already have bilateral treaties with the US, what this fails to mention is who exactly those are: Bulgaria, Croatia, Czech Republic, Estonia, Latvia, Lithuania, Poland, Romania and the Slovak Republic.  In other words, these were all countries that had been forced into the Soviet sphere, and which were therefore desperate to strengthen links with the US when the Soviet Union collapsed.  Dwarfed by the latter's economy, there were in no position to haggle, and naturally accepted ISDS as part of the deal.

Unless the European Commission wants to suggest that the other 19 members of the EU should be equally supine in agreeing to whatever the US demands, those earlier bilateral treaties born of real fears over economic and military security, are completely irrelevant to TTIP, and offer no precedent for including ISDS.

The other important element of the Consultation notice is the claim that whatever problems ISDS might have had in the past, the Commission is *on* it:

The Commission is propos ing a n innovative approach on investment protection and ISDS for the TT I P. It draws on lessons learnt and from experience with existing inve s t ment treaties and with how the ex isting ISDS arbitration system works . It addresses the concerns and shortcomings that have featured prominently in public discussion s a bout investment protection and ISDS .

Sounds great, but there's a problem: Karel De Gucht has not kept his promise as regards letting us see exactly how the Commission proposes to address ISDS's admitted "concerns and shortcomings".  Here's what he said when he announced it:

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.

The problem is that there is still no draft text of the ISDS chapter for us to examine.  Instead, this is what we've got in the main consultation document [.pdf]:

Each issue is illustrated using reference texts as examples , taken from other investment agreements and from the approach developed in the EU - Canada (CET A) negotiations, which is the most recent text negotiated by the EU.

That is, instead of that promised "draft text", we have "examples", and a recent text of the provisions in the Canada-EU Trade Agreement (CETA) that has been discussed several times in these updates, of which Update XIV is probably the most relevant here.  That's because it reports on some great analysis carried out by the Seattle to Brussels Network (SBN), working from a late, leaked copy of CETA's ISDS provisions.  This shows that essentially all of the claimed "improvements" that the Commission has made to ISDS in CETA are actually pretty worthless: they are full of loopholes and loose wording that skilled lawyers will have a field day with.

That means there are only two possible situations.  Either the Commission proposes to use a text close to that employed in CETA - in which case, the ISDS provisions are just as dangerous as they have always been, and the cosmetic changes made by the Commission will do little to change that.  Or else the Commission plans to use a radically different text from the one in CETA that does address the serious problems - in which case the current consultation is pointless, since we can't actually see that text, despite what De Gucht said.

Either way, the ISDS consultation is a sham, and should not be regarded as a serious attempt to engage with "the public", despite fervid claims to the contrary.  In a future Update I'll be making specific recommendations about how to reply to it before the closing date of 6 July 2014.  As you can probably guess, the tenor of my response will be simple: we don't need ISDS in TTIP, so don't even bother trying to salvage it - just get rid of it completely.

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TTIP Update XXII

The fact that corporations are regularly placed on the same level as entire nations, and can sue them for alleged loss of future profits, probably came as something of a shock to most people, as it did to me when I first encountered the idea.  It sounded like the deranged fantasy of some corporate lobbyist, but surely not something that any country would actually accept.  And yet, as we know, not only do many - small, and relatively weak - countries consent to investor-state dispute settlement (ISDS) as the price of obtaining much-needed inward investment, but the European Commission seems hell-bent on exposing European to the same kind of corporate attack.

I say "Europeans", and not European nations, because ultimately it is the taxpayers that must fund the increasingly exorbitant awards that ISDS tribunals are making.  To put it another way, it's a classic case of "privatising the profit, and socialising the costs": EU companies get to make profits in the US, but it's mostly the EU citizens who would have to foot the bill if awards were made under ISDS in favour of American corporations operating here in Europe.

Even though ISDS burst upon the scene relatively recently for most of us, we actually have a fair amount of information about its previous history, largely thanks to bodies like the United Nations Conference on Trade And Development (UNCTAD), which has been producing handy summaries of what's been happening in this strange world for a while now.  It's just published its latest report [.pdf], and it contains some important developments. The number of new cases is only one less than the previous year's record - 57 against 58.  More significant is the following:

The greatest number of 2013 cases were brought against countries in Europe (26 cases, of which two are against countries not members of the European Union (EU) – Albania and Serbia)

Specifically:

Twenty four arbitrations (42 per cent of all cases) were brought against EU Member States. The range of countries involved is broad and includes “new” and “old” Member States, namely the Czech Republic (7 cases), Spain (6), Croatia (2), Hungary (2), Slovakia (2), Bulgaria (1), Cyprus (1), France (1), Greece (1), and Slovenia (1). In all of these arbitrations except for one, the claimants are also EU nationals; they started the proceedings on the basis of either intra-EU bilateral investment treaties (BITs) or the Energy Charter Treaty (ECT), sometimes relying on both at the same time.

That's an important shift, since it shows that ISDS is no longer simply a way for Western countries to bully developing ones, but that the weapon has now been turned against many EU countries, mostly by other EU countries.  This suggests that companies are becoming aware of and more comfortable with ISDS as a way of extracting money from EU governments.  Couple that with the fact that overall the US is the leading nation when it comes to using ISDS - 127 cases out of 568 (22%) -  and that there are  more than 14,400 US-based corporations that own more than 50,800 subsidiaries in the EU, and you have a recipe for an ISDS-based legal Armageddon.

The report contains some other significant straws in the wind:

Several arbitrations launched in 2013 have an environmental dimension. In two disputes against Canada, investors are challenging measures introduced on environmental grounds. The first, a claim by Lone Pine Resources, arose out of Quebec’s moratorium on hydraulic fracturing (fracking) that led to the revocation of the company’s gas exploration permits. The second dispute relates to Ontario’s moratorium on offshore wind farms (pending research on their health and environmental effects); the claimant contends that the temporary ban breaches its contract for the electricity supply which it had concluded with the Ontario Power Authority for a 20-year period.

This is precisely the kind of things that many fear will happen if ISDS is included in TTIP: companies will seek to overturn policies that are brought in for environmental reasons, arguing that corporate profits outweigh the rights of the public.  The following case is also highly relevant to the EU situation:

Achmea, a Dutch insurance company, is seeking to preclude the host State from expropriating Achmea’s stake in a Slovak health insurer (the relevant draft law is under consideration by the Slovak Parliament). The right of States to expropriate property is well-established under international investment law as long as certain conditions are met. Achmea is claiming that some of these conditions would be breached (requirement of public interest, non- discrimination and due process) if the expropriation goes ahead.

A similar situation could arise in the UK if a future government decided to reverse the current privatisation of NHS services, and sought to re-nationalise them.  If a US company were involved, it might claim that the UK could not expropriate property in this way because conditions to do so were not met.

The UNCTAD report is really well-worth reading in order to gain an understanding of how ISDS is developing - and how quickly.  For example, there are cases where companies try to claim "moral damages" along with everything else, and another case where a company that had made a $5 million investment was awarded $900 million in "lost profits" - even though it seems to have no track record as a profitable organisation.

Trade lawyers around the world have clearly realised that ISDS is one of the most efficient ways for their clients to extract money from governments, and they are applying their not-inconsiderable - if largely amoral - ingenuity to come up with new ways of using the mechanism.  That's another important reason why the "innovative elements" the European Commission plans to introduce to "improve" the system won't work - they are trying to fix yesterday's problems - and why ISDS must be removed completely from TTIP.

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