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.

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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.

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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.

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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.

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TTIP Update IX

As the calendar year draws to a close, you might expect the world of trade agreements like TAFTA/TTIP to be shutting down too.  Surprisingly, though, that's not the case.  The last few weeks have seen more activity and revelations than any so far.   In fact, so much has been revealed in the last few days that it will take several updates over the next week or two to explore the implications.

First of all, let's look at an astonishing attack on Corporate Europe Observatory, the group that obtained the important leak about the proposed TAFTA/TTIP Regulatory Council, which I discussed in my previous  TTIP Update.  The post comes from the EU Trade Spokesman John Clancy, and the fact that the European Commission felt moved to publish it speaks volumes about its increasing nervousness: you don't resort to such tactics if you're feeling confident of your position.  Here's how it begins:

Anti-trade and anti-business lobby group Corporate Europe Observatory (CEO) have scored an own goal with their latest claims against the Transatlantic Trade and Investment Partnership (TTIP). The only thing the latest so-called 'leaked document' published by CEO reveals is confirmation of what the EU has been saying all along; namely that any future deal between the EU and the US will 'reaffirm their [EU Member State governments' and the US government's] sovereign right to adopt new regulatory initiatives, to regulate in pursuit of legitimate public, policy objectives and to ensure that their laws and policies provide for and encourage high levels of environmental, health, safety, consumer and labour protection.'

"Reaffirming" those things doesn't really do much.  If a US company uses the investor-state dispute settlement (ISDS) provisions that are currently in TAFTA/TTIP, to sue the European Union, and the ISDS tribunal upholds the claim, the EU and national governments can "re-affirm" their rights as much as they like, but they will still be expected to pay up, and the US government will doubtless support that decision.  The point is, the tribunal may not agree, and can't be forced to follow any supposed EU line, because it is inherently above national or even European laws - that's the problem.

Here's the next section from Clancy:

Furthermore, the so-called 'leaked document' reflects almost in its entirety the EU's initial position paper already made public in July 2013 and available on-line. This sets out how the EU and US could work more closely together, and more openly, when drawing up future regulations. The changes are designed simply to make future regulations more effective and efficient for both business and consumers – nothing more, nothing less.

So here's what that position paper has to say on the subject:

A body with regulatory competences (a regulatory cooperation council or committee), assisted by sectoral working groups, as appro priate, which could be charged with overseeing the implementation of the regulatory provi sions of the TTIP and make recommendations to the body with decision-making power under TTIP. This regulatory cooperation body would for example examine concrete proposals on how to enhance greater compatibility/conver gence, including through recognition of equiva lence of regulations, mutual recognition, etc. It would also consider amendments to sectoral annexes and the addition of new ones and encourage new regulatory cooperation initia tives. Sectoral regulatory cooperation working groups chaired by the competent regulatory authorities would be established to report to report to the regulatory cooperation council or committee. The competences of the regulatory cooperation council or committee will be without prejudice to the role of committees with specific responsibility on issue areas such as SPS.

In other words, it's largely about overseeing the implementation of TTIP, not going beyond it.  Clancy also writes the following:

details of this [Regulatory Council] along with a broad explanation of the regulatory ambitions of the future TTIP agreement were announced by EU Trade Commissioner Karel De Gucht on 10th October in a speech to the Aspen Institute in Prague

Here's what De Gucht said then (.pdf):

I therefore propose that th e TTIP establishes a new Regulatory Cooperation Council that brings together the heads of the most important EU and US regulatory agencies.

The council would monitor the implementation of commitments made and consider new priorities for regulatory coopera tion - also in response to proposals from stakeholders. In some cases it could also ask regulators or standards bodies to develop regulations jointly that could then have a good chance of becoming international standards.

Notice again how passive the Regulatory Cooperation Council (RCC) is there: it would "monitor" implementations, "consider" new priorities, and "in some cases" ask regulators to come up with something new.  Contrast that with what we read in the CEO leaked document (.pdf):

The functions of the RCC will include inter alia:

Considering and analysing, with the help of the relevant working groups substantive joint submissions from EU and US stakeholders or submissions from either Party on how to deepen regulatory cooperation towards increased compatibility for both future and existing regulatory measures;

The RCC may be assisted by sectoral ad hoc working groups. In the domain of financial services the functions of the RCC to monitor, guide the cooperation and to prepare the yearly Regulatory Programme will be assumed by a competent sectorial body established by the TTIP.

Specific modalities will be established for interaction of the RCC with legislators (US Congress and the European Parliament). The RCC should interact with stakeholders, including business, consumers and trade unions. For this purpose a EU-US multi-stakeholder advisory committee or similar body should be established that would regularly meet with and work with EU competent authorities and US regulators in crafting regulatory measures or taking decisions how to further compatibility of existing one (e.g. through mutual reliance, recognition, etc.).

Suddenly the RCC has become an active participant in the formulation of new regulations, interacting directly with legislators on both sides of the Atlantic, and even "crafting regulatory measures".  That's the key change the Clancy chooses to ignore, because it reveals the first outlines of the European Commission's emerging plan to give big business the deregulation it is demanding, but without making it too obvious by enshrining it in TTIP itself for all to see.  Instead, health and safety regulations on both sides of the Atlantic will be swept away – sorry, made "compatible" – through a very gradual process brought about by the dull-sounding  Regulatory Cooperation Council that will in fact effectively veto regulatory changes in favour of the public, which diminish corporate profits.  This will introduced a regulatory ratchet that ensures new laws and rules are always in favour of companies, just as the copyright ratchet ensures that changes to law are always in favour of copyright companies, never the public.

Clancy's last paragraph is as follows:

The EU welcomes an open public discussion on TTIP including the important input from civil society including all stakeholders whether NGOs or business. Unfortunately, CEO only does a disservice to this important discussion with misleading and exaggerated claims once again. Since the launch of EU-US discussions, the EU Commission has welcomed an open public debate but such a debate should be based upon the facts and not the spin.

The European Commission has not invited "open public discussion" -- I challenge it to point out any occasion when the public was invited and able to discuss TTIP with the Commission in any meaningful way – occasional sessions held after negotiating rounds do not count.  The only serious discussions that have been taking place are with big business.  We know this for a fact thanks to a Freedom of Information request from CEO, which found that of the European Commission's 130 "meetings with stakeholders" that took place earlier this year, 119 of them were with large corporates and their lobbyists. 

And for the European Commission to accuse CEO of "spin" is astonishingly hypocritical.  Here, for example, the headline that Clancy used for his post:

Anti-Trade lobby group CEO scores own goal on latest TTIP 'revelation'

But as CEO points out in its own rebuttal, it is not "anti-trade", as its actions prove:

Corporate Europe Observatory has been a part of an effort for years to develop an alternative trade policy. We’ve done that in collaboration with a broad variety of social movements and NGOs, and only a few weeks ago, we were part of launching the Alternative Trade Mandate, whose proposal is to make EU trade and investment policy work for people and the planet, not just the profit interests of a few

But there's a more important misdirection in Clancy's headline.  He is trying to frame the European Commission as pro-trade, and CEO as "anti-trade".  But what is under discussion here is not trade, it is the regulations that protect our health and safety, and help preserve the environment, for example.  

If the European Commission truly wanted a debate "based upon the facts and not the spin", it would acknowledge that TAFTA/TTIP is only tangentially about trade barriers, and mostly about national and European regulations.  And it would stop trying to re-define long-standing measures that protect the public, and which were drawn up in an open and democratic way, as "non-trade barriers", that need to be reduced or removed.

By adopting this language, it reveals it is engaged in an attempt at massive deregulation in favour of the transnational corporations it meets with so much, to the disfavour of the European public whose only role here seems to be to pay the not-inconsiderable wages of the European Commission and its staff.

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TTIP Update VIII

Even the European Commission admits that TAFTA/TTIP is not, primarily, a trade agreeement, because the trade barriers between the EU and the US are already so low that removing them will add little to the EU economy.  According to a report commissioned by the EU, the uplift in 2027 will be only 24 billion euros; that compares with the most favourable outcome touted by the report, which is 119 billion euros GDP uplift in 2027. However, that is predicated on massive deregulation – although the European Commission prefers to use the euphemism of "removing non-tariff barriers."

Actually, it doesn't really like that term either, because that reveals that the real agenda is deregulation.  Instead, it frames it as "regulatory harmonisation" – making the EU and US systems more compatible.  But there's a problem here: when the two systems flatly contradict each other – for example, over whether chickens can be washed in chlorine, or cattle injected with growth hormone – there is no possible "harmonisation": they are fundamentally incompatible. 

The US side is quite frank about this: among its many demands is that the EU dismantles its strict health and safety regulations and allows chlorine-washed chickes beef pumped up with growth hormones in EU supermarkets and thus on EU plates.  So the interesting question is how the European Commission will manage to pull this off, given the spotlight that is being shone on possible deregulation: how can it somehow accommodate the US demands without being seen to lower EU standards it has pledged to defend in the negotiations?

The latest leak from the TTIP talks gives us a clue.  Corporate Europe Observatory  has obtained a position paper on "regulatory coherence" [.pdf], which explains how "how TTIP could establish an effective system of transatlantic regulatory co-operation".  It lays out how the major problems of regulatory incompatibility – the chlorine chickens and growth hormone beef, for example – won't be solved now, under the full glare of public scrutiny, but will be shuffled off to the future, where a new and powerful body will be established to "smooth out" those tricky regulatory bumps.  Here's how it would work, as explained by  Corporate Europe Observatory:

Business interests on both sides of the Atlantic are pushing hard to get an institutional structure, an “oversight body”, into the agreement, mostly referred to as an EU-US “Regulatory Council”. This would be based on a set of rules for regulatory cooperation that would enable the parties to deal with their differences in a more long-term fashion, through procedures that will give business the upper hand. It might very well be that the final TTIP text will not include immediate concessions on public health and environmental regulation. But it could include an approach for the future, giving the basic message to citizens that regulation is none of their business, but first and foremost the business of business.

Regulatory cooperation is a long term project. It is meant to deal with differences that could not be settled at the negotiating table at the highest level and also to respond to new regulations as they occur. In the course of the negotiations, the parties will see to what extent they can agree on common standards, or recognise each others' standards as basically similar. But in those areas where this is not possible in the short term, they will set up procedures to deal with them in the future. The idea is to make TTIP a “living agreement”, not confined to what they can agree on in the first place, but a continuous process of ever deeper integration . That raises the prospect of the parties reaching a conclusion on even the most difficult issues, such as food safety. For corporations  from the EU and US, it raises hopes for better access to each other's markets including in sectors that meet obstacles today, and for that reason it is being promoted vigorously by the business lobbies on both sides of the Atlantic.

The key phrase there is "living agreement".  Actually, a better description would be "zombie treaty".  The idea here is that TAFTA/TTIP never dies, and is constantly re-negotiated behind closed doors by the same elite that are discussing it currently – that is, unelected politicians and big business.  Through the constant dripping of regulatory adjustment on the stone of EU laws in time, the awkward rough edges of health and safety, environmental and social protection, would be worn away.

Here's why this approach is problematic:

Business should have the right to be involved in the first stage when new regulation is prepared. And let us remember that when we are talking about regulation we mean rules intended to prevent the food industry from marketing foodstuffs which include dangerous substances, or to keep energy companies from destroying the climate, or regulations to combat pollution and to protect consumers.

New regulations should be investigated via a “regulatory compatibility analysis” (RCA).  During this investigation, seven questions would have to be answered. The questions are clearly tilted towards the interests of business, as they are mainly about the impact on business and on trade, including what the costs or savings would be to the private sector, how much regulatory authorities would “save” by down-scaling measures, and whether measures are outdated and should thus be eliminated or modernised. In other words, a business-friendly agenda is to constitute the backbone of regulatory assessments, if the business lobby has it its way.

As that makes clear, the Regulatory Council would embed not just business more deeply in the process of drawing up (and amending) regulations, it would allow US corporations to argue against EU practices from within the citadel.  This would give them an immense power to interfere with what are inherently European matters, and to subvert them for their own purposes.

They will be aided by the “regulatory compatibility analysis” (RCA).  That's because this is all about the impact on "business and trade": there is no mention of the adverse social impact, say, or the environmental harms, that new regulations might cause.  That's of a piece with the European Commission's current claims about TAFTA/TTIP: even if you accept the wildly implausible 119 billion euros GDP uplift in 2027, nowhere is any account taken of the negative externalities the requried changes will cause. 

For example, reducing the EU's high food, health and safety standards will inevitably cause more people to become ill, placing a greater burden on the European health system.  Similar, lowering environmental protections will lead to a degradation  of our surroundings. That has a real value to many people, even if it can't be quantified in monetary terms.  None of this is captured in the European Commission's TAFTA/TTIP propaganda.

Interestingly, the position paper on Regulatory Coherence has a couple of fig leaves.  First, we have the following, significantly stated right at the start:

The TTIP provides a historic opportunity for the EU and the US to substantially enhance regulatory co-operation. Such co-operation should be guided by both Parties’ right to develop and maintain, policies and measures ensuring a high level of environmental, health, safety, consumer and labour protection, fully respecting the right of each side to regulate in accordance with the level of protection it deems appropriate.

To which I can only say: well, yes... But having a "right" to develop and maintain those policies, and actually to use that right, are two quite different things.  In particular, once US companies are inside the regulatory development process, they will simply use its machinery – notably the “regulatory compatibility analysis” - to justify why certain regulations should or should not be adopted.  Those that would use that right to stand up for EU citizens – for example, the European Parliament – will have no way of doing so under the new scheme.  Moreover, as Corporate Europe Observatory explains:

Business will be awarded all kinds of rights to demand information, dialogue and negotiation on regulatory measures. If this proposal is adopted, a firm and effective “right for lobbyists to intervene and block” will be enshrined in an international agreement and in EU law.

Another advantage for the business lobby groups is the opaque nature of all the dialogues and procedures, many of which are set to take place well before any real public or democratic debate can take place.

…

If we add to this the fact that the Commission is the only EU body allowed to table legislative proposals, we have a recipe for disaster: the Commission would presumably be easily persuaded by US authorities or the US business lobby to refrain from tabling a proposal if it would cause a stir in the EU-US trade relationship.

The other fig leaf addresses some of these issues – in theory:

Each Party would undertake stakeholder consultations on regulatory and legislative measures in the areas that will be covered by this Chapter, according to their respective consultation framework.

Each Party should establish or maintain appropriate mechanisms for responding to enquiries from any interested person regarding any measures of general application covered by this Chapter. Upon request each Party should provide information on any existing o r proposed measure that the
other Party considers might affect the operation of this Agreement, regardless of whether it was notified.

Each Party should endeavour to identify or create enquiry or contact points for interested persons of the other Party with the task of seeking to effectively resolve problems for them that may rise from the application of measures of general application. Such process should be easily accessi ble,
time-bound, result-oriented and transparent. They should be without prejudice to any appeal or review procedures, which the Parties establish or maintain.

Sounds great, no?  Transparency and access for everyone.  Well, may be not.  What the Regulatory Council will create is simply another forum where the rich and powerful will find it easier to make their voices heard.  In particular, lobbyists will swarm to this new locus of power and ensure that public concerns are drowned out even more than already happens in Brussels.

The key thing to underline about the proposed Regulatory Council is that it is not some minor side issue, but central to the European Commission's approach to TTIP and achieving its long-term aims with it.  The European Commission probably knows that it could never get through an agreement that explicitly tried to level European protections downwards.  Instead, it will negotiate a far more reasonable document, with a few important exceptions. 

One is the investor-state dispute settlement (ISDS) mechanism that I've already at some length.  In fact, I think the European Commission would be prepared to "sacrifice" that chapter for the sake of getting TAFTA/TTIP through the European Parliament, given the growing outrage over the ability of ISDS to place corporation above nations.

The other exception is setting up the Regulatory Council.  That's because the Council will effectively allow the European Commission to postpone the more difficult deregulation and elimination of EU health and safety protection, and to spread it out over many years.  It will be able to wrap them up with other changes that the European Parliament is keen to pass, and so as a compromise the things that would never be accepted in the main TAFTA/TTIP document will slide through the legislative process in dribs and drabs.  Clever.

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TTIP Update VII

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

Since then, two documents have been released officially by the Commission, and they provide some extremely important information on the negotiations.  That's because they are concerned with what I have already flagged up as perhaps the most dangerous aspect of TAFTA/TTIP: corporate sovereignty, known officially as investor-state dispute resolution (ISDS).  The problem here is that this places companies at the same level as nations – indeed at the same level as the EU as a whole – and gives them extraordinary capabilities for dictating the contours of laws and regulations.

There are actually three documents – two official, and the letter accompanying them, which has been leaked.  The letter comes from Jean-Luc Demarty, who is Director-General of Trade, and was sent to Vital Moreira, chairman of INTA, the European Parliament's Committee on International Trade.  Moreira was a supporter of ACTA, and is probably best known for threatening to throw people out of a public meeting on that subject if they applauded.

Here's how the letter explains itself:

I take this opportunity to share with you a document explaining in more details our approach to investment protection and investor-State dispute settlement in general, and a factsheet explaining what we have achieved in this respect with Canada. We will distribute this document widely in the Parliament.

These are the two documents that have been made public.

We welcome the technical meeting scheduled to take place on 26 November on this matter. At the same time we believe we should find more such opportunities. In particular, we would welcome a dedicated debate.

ISDS was until recently an obscure and neglected aspect of TAFTA/TTIP, but as more people wake up to its dangers, and begin voicing their fears, so MEPs are naturally becoming aware too, and they are probably starting to wonder if it will be as politically toxic in the present agreement as the Internet provisions were in ACTA.  The European Commission is therefore desperate to try to convince members of INTA, which is the lead committee for TAFTA/TTIP, that ISDS is perfectly harmless, and that they really shouldn't pay any attention to the people raising serious questions about its relevance for this kind of deal.

The main document is called "Investment Protection and Investor-to-State Dispute Settlement in EU agreements" (pdf), and claims to be a "fact sheet": that is, it is trying to assert that everything it contains is a fact, and not just matters of opinion that can be argued over.  The introduction summarises nicely the structure of the document:

This outline explains why investment protection provisions are necessary and looks at lessons learned from how investment protection has worked in the past. It presents the concrete improvements made by the Commission to investment provisions in EU trade agreements and which will be included in future agreements.

The first section provides us with some information about investments around the world:

Investment is a critical factor for growth and jobs. This is particularly the case in the EU, where our economy is very much based on being open to trade and investment. Investment is key in creating and maintaining businesses and jobs. Through investment, companies build the global value chains that play an increasing role in the modern international economy. They not only create new opportunities for trade but also value-added, jobs and income. That is the reason why trade agreements should promote investment and create new opportunities for companies to invest around the world.

Of course, exactly the same arguments were used for TAFTA/TTIP's predecessors – NAFTA and KORUS.  And yet, as I noted in my previous TTIP update, NAFTA and KORUS actually *destroyed* around 680,000 and 40,000 US jobs respectively.  But let's just ignore that inconvenient detail for the moment, and continue exploring why TAFTA/TTIP absolutely must have corporate sovereignty included:

Companies investing abroad do encounter problems which - for a variety of reasons - cannot always be solved through the domestic legal system. These problems range from the rare, but dramatic, occurrences of expropriations by the host country by force, discrimination, expropriation without proper compensation, revocation of business licences and abuses by the host state such as lack of due process to not being able to make international transfers of capital.

Well, yes companies have indeed encountered all those problems, *in certain countries*, specifically those with poorly-developed legal systems.  But as I have asked before, is the European Commission seriously suggesting the the US might engage in "expropriations by the host country by force, discrimination, expropriation without proper compensation, revocation of business licences and abuses by the host state such as lack of due process to not being able to make international transfers of capital"?  I have to say, for all the US's many faults, none of those seems very likely.  But again, let us continue to listen to the European Commission's logic here:

Precisely because of these risks, provisions to protect investments have been part and parcel of all the 1400 bilateral agreements entered into by EU Member States since the late 1960s. The EU itself is party to the Energy Charter Treaty, which also contains provisions to protect investments and investor to state dispute settlement. Worldwide, there are over 3400 such bilateral or multiparty agreements in force containing provisions to protect investments. They provide guarantees to companies that their investments will be treated fairly and on an equal footing to national companies. By creating legal certainty and predictability for companies, investment protection is also a tool for states around the world to attract and maintain FDI [foreign direct invesment] to underpin their economy.

Notice how this moves from those 1400 bilateral agreements negotiated since the late 1960s – many with countries that do not have developed legal systems, and therefore might present some of the dangers described above – to the claim  that "investment protection is also a tool for states around the world to attract and maintain FDI to underpin their economy."  So what the "fact sheet" is asserting here is that without ISDS provisions in TAFTA/TTIP, poor old Europe just won't attract and maintain foreign direct invesment. 

Sounds pretty compelling you might think – after all, surely it's better to have that investment, and if Europe will only get it with ISDS, well so be it.  But there are some more of those inconvenient facts the the European Commission somehow omits to mention.  That's rather strange, because it's to be found on the European Commission's own Web site pages dealing with EU-US trade:

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.

So it sounds like foreign direct investment from the US to the EU (and from the EU to the US) is not only present, but actually vastly more important than investment anywhere else in the world.  But how can this be?  After all, currently, there are *no* ISDS mechanisms between the EU and US (which is why the European Commission is insisting we create them in TAFTA/TTIP.)  According to the "fact sheet", this ought to mean that Europe is unable to attract and keep US investment.  And yet, by its own figures, the US invests three times more in the EU than in all of Asia.

In other words, the Commission's own figures demonstrate that ISDS has been completely unnecessary in the past: the US has been more than happy to invest many billions in the EU.  They also demonstrate that there is no reason whatsoever to bring it in now, since US companies are clearly not going to rip out all their investment in the EU just because they don't have access to ISDS mechanisms.  That's for the very simple reason that they don't need them: they have the extremely well-developed EU court systems to which they can – and do – turn.

So there would be no benefit in bringing in corporate sovereignty rights in TAFTA/TTIP, but there would be huge risks.  How do we know this?  Because the European Commission's very own "fact sheet" says so:

While the number of cases brought to arbitration is small compared to the hundreds of thousands of investment decisions made daily benefiting both the host countries and companies investing in them, some of the most recent cases brought by investors against states have given rise to strong public concerns. The main concern is that the current investment protection rules may be abused to prevent countries from making legitimate policy choices.

Amongst the cases that have caught the public attention are the on-going cases Vattenfall vs. Germany and Philip Morris vs. Australia. The Swedish energy company Vattenfall has brought a claim against the German government (under the Energy Charter Treaty) after its decision in 2011 to significantly speed up the phase out of nuclear power generation. The US owned company Philip Morris has challenged the government of Australia for the latter’s decision to ban brand names on cigarette packs (the 'plain packaging' measure) for reasons of public health.

...

The public concerns raised surrounding these cases are legitimate and need to be addressed.

So the Commission itself recognises that the concerns are legitimate and need to be addressed.  And this is how it proposes to address them:

The Commission’s aim i[s] to bring improvements on two fronts (1) to clarify and improve investment protection rules and (2) to improve how the dispute settlement system operates. Such improvements will address the concerns raised that investment protection rules may negatively impact states’ right to regulate. They should, amongst other things, ensure that companies cannot successfully bring claims against states’ regulatory policies when these are taken for public policy
reasons.

Let me emphasise here, as I did before, that these things are simply what the European Commission *wants* to do – not what the US will agree to.  The other document released with the "fact sheet" is an attempt to bolster the Commission's case: it's called "EU- Canada CETA : main achievements" (pdf).  It reveals – for the first time – what the still-secret CETA contains in terms of ISDS.  But of course what happened with Canada has very little bearing what will happening with the US. 

Where the EU was able to bully the small and relatively weak Canada into accepting pretty much everything the European Commission wanted, that is clearly not the case with the US.  Indeed, the Commission is so conscious that it is the weaker party in the TAFTA/TTIP negotiations, it was forced to address this in the PR document I referred to at the beginning of this post.  Here's what it says:

Many of the fears about what TTIP may represent are linked to a perception that the EU is not in a sufficiently strong position to engage with the United States. Some of this also stems from the fact that the EU is currently in a weaker economic position than the US and that therefore we need TTIP more than they do. We need to make clear that this is not the case, that despite the crisis the EU remains the world's largest market and is as such an indispensable partner for any trading economy (i.e. both sides have major economic interests in these negotiations). We must also make clear that we have as strong a track record as the US in trade and other negotiations, including with the US itself.

Methinks the lady doth protest too much...

But this delusion about being an economic equal of the US, and thus able to force its ideas of how to revise ISDS on a recalcitrant negotiating partner that is used to getting its own way, is actually irrelevant.  The key point is that ISDS simply has no place whatsoever in TAFTA/TTIP.  To see why, we need to go back to the opening of the corporate sovereignty "fact sheet", which states:

Investment protection provisions, including investor-state dispute settlement are important for investment flows. They have generally worked well. However, the system needs improvements. These relate to finding a better balance between the right of states to regulate and the need to protect investors, as well as to making sure the arbitration system itself is above reproach e.g. transparency, arbitrator appointments and costs of the proceedings.

As we've seen, investment protection provisions are simply irrelevant when it comes to EU-US trade, so that argument can be discarded.  But what's really disturbing is the idea that TAFTA/TTIP should be about

finding a better balance between the right of states to regulate and the need to protect investors

That is, the European Commission believes that these have something to do with each other, as if the former – the right to regulate the workings of a society – has to be abrogated in order to protect the latter – investors and their money.  That is not just wrong, it is downright insidious: it places the rights of investors at the same level as the rights of citizens; it asserts that the public must necessarily give up some of its own hard-won health, environmental and social protections in order to "protect" the ability of companies to make profits. 

This pernicious notion is why ISDS is not fixable in any way, despite what the European Commission would have us to believe.  Its very presence in a trade agreement is an affront to the citizens in whose name it is supposedly being negotiated, and an affront to democracy itself.  ISDS must go.

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