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

TTIP is dying:

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

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

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

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

Dear [politician],

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

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

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

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

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

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

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

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

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

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

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

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

I look forward to your response

Me too.

Please Write To MPs To Call For More Time To Debate Investigatory Powers Bill

Last week, the UK government published a revised Investigatory Powers Bill, aka the Snooper's Charter.  Surprisingly, it took no notice of the the serious criticisms made by no less than three Parliamentary committees; indeed, in some respects, it has made the Bill even worse.

The UK government is now trying to force the Bill through Parliament quickly, so that there is very little scrutiny.  As a priority, we need to get more time allocated for the debates. To achieve that, UK citizens can write to their MPs using WriteToThem, asking them to support efforts to allow more time.  Here's what I've just sent to my MP:

This is just a quick note to ask you to support efforts to allow more Parliamentary scrutiny for the Investigatory Powers Bill.  Although views may differ on the contents of the Bill, surely everyone can agree that something as important and as complex as this deserve rigorous examination by MPs. 

As a journalist, I have looked through the Bill and several of the Codes of Practice, so I know from first-hand experience how much is contained in the 800 pages they represent in total.  With only a cursory examination by MPs, it is highly likely that there will be aspects that could cause huge problems later on – for the intelligence services and police, the public, UK computer companies and specific groups like journalists, lawyers and MPs.

I therefore urge you to join with your colleagues to ask the government to allocate more time for the Bill to be discussed.  The fact that there is a sunset clause in the Data Retention and Investigatory Powers Act is not a good reason to rush through a flawed Investigatory Powers Bill to replace it.

TTIP Update LI

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

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

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

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

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

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

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

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

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

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

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

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

Here's how it will work:

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

This is particularly troubling:

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

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

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

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TTIP Update L

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

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

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

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

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

Here are the requirements for those arbitrators:

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

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

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

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

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

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

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

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

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

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

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

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TTIP Update XLIX

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

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

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

Here's the basic aim:

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

And here's how they aim to do that:

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

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

What's troubling is the following:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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TTIP Update XLVIII

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

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

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

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

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

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

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

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

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

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

Specifically:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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