Lightning talk about investor-to-state dispute settlement @ OHM 2013

This summer there will a another international camping festival for hackers and makers, and those with an inquisitive mind, OHM 2013.

I will give a short talk about investor-to-state dispute settlement. The announcement:

Investor – state dispute settlement: a threat to democracy

Why this talk?

Consumer and environmental groups identify investor-to-state dispute settlement (ISDS) as the most important threat in upcoming EU trade agreements. Investor-to-state dispute settlement gives multinationals the possibility to sue states for special tribunals if changes in law may lead to lower profits than expected. This threatens environmental policies, access to medicines and the public interest. ISDS undermines democracy and may hamper copyright and patent law reform.

Who

In 2012 Europeans massively protested against the Anti-Counterfeiting Trade Agreement (ACTA). ACTA threatened privacy, freedom of speech and access to medicine. ACTA could have made copyright and patent law reform impossible. In July 2012, the European Parliament overwhelmingly rejected ACTA. We now have to watch out for the return of ACTA-like provisions in other international agreements. But this is not the only threat we face. Investor-to-state dispute settlement is much less well known among digital activists, but it is just as threatening. I want to make the digital community aware of ISDS.

What

A lightning talk, just 5 minutes, an introduction on ISDS. A link to further reading. An invitation to discuss the issue further at the Noisy Square village at OHM.

How

In the presentation, I will have to explain a few things. What is ISDS: special rules and special tribunals. Special rules: International agreements give extra protection to foreign investors against expropriation. Over time, the scope of protection got broader and broader, from expropriation of a factory, to law changes that may make profits lower. Special tribunals: The tribunals consist of three lawyers. These tribunals fall outside the court system, are placed above the supreme courts of countries.

There are major problems: the ISDS system is ridden with conflicts of interest. Lawyers write investment plans for multinationals one day, and the next day they are “judges” in ISDS tribunals. I will give examples showing that multinationals can use ISDS to attack laws and decisions they do not like. The number of cases is rising sharply.

This moment in history: EU member states signed many bilateral investment treaties, but since the Lisbon Treaty, the EU is competent. From now on, the European Commission negotiates, the European Parliament has a veto. The parliament is critical about ISDS. Now is the time to get it right.

A major development, a game changer: the EU and US are going to negotiate a trade agreement, they want to create a single market. The European Commission wants ISDS in the trade agreement – while both the EU and US already have excellent protection against expropriation, and both have well respected courts. There are enormous EU < -> US investments, the scale of ISDS cases may be equally enormous.

This is a time not to be naive: the European Commission is aware of problems and wants to introduce safeguards. But specialized “courts” attract and create captive in-crowds. See the European Patent Office boards, or the US Court of Appeals for the Federal Circuit. Captive in-crowds can always find ways to route around safeguards. See for instance what the European Patent Office did with the exclusion of software patents.

There is only one real safeguard: exclusion of ISDS.

In societies based on the rule of law, strong institutions are essential. Captive institutions undermine democracy, the rule of law and the public interest.

See also CEO: Unravelling the spin: a guide to corporate rights in the EU-US trade deal

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CEO goes to court over access to documents, needs support

Corporate Europe Observatory (CEO) writes:

“Appeal filed over business lobbies’ privileged access in EU-India trade talks

Lobby watchdog Corporate Europe Observatory today appealed to the European Court of Justice a ruling from the EU’s General Court over information related to the EU-India free trade talks, which the European Commission shared with corporate lobby groups but later withheld from the public.”

The FFII criticised the earlier ruling in its comment on the EU – US trade agreement, “Openness and the right to participate“. It is great to see CEO appeals the ruling.

Corporate Europe Observatory has launched a donation call to cover the legal costs of the appeal.

Openness is essential. You may like to support CEO.

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Openness and the right to participate

Monday the EU and US will start negotiations on a trade agreement. Today the FFII sent a comment to the EU Commission and the EU Parliament rapporteurs on this agreement, with a focus on openness and the right to participate.

See the PDF version or below.

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FFII Comment on TTIP: Openness and the right to participate

Introduction

The EU and US are negotiating a Transatlantic Trade and Investment Partnership (TTIP) Agreement, also known as Transatlantic Free Trade Agreement (TAFTA). This FFII comment on the agreement has a focus on openness and the right to participate.

We conclude that the negotiations will have to take place as openly as possible and as closely as possible to the citizen. Open negotiations will lead to better results than secretive negotiations. Without openness, essential aspects of regulations – legitimacy, quality and balance – are at stake. Furthermore, we conclude that secrecy of the trade negotiations with the US violates the human right to participate of about 500 million Europeans.

Legitimacy, quality and balance

The trade tariffs between the EU and US are already low, the parties will especially seek regulatory convergence. Legitimacy and quality are essential aspects of regulations. And regulations have to be balanced.

The Treaty on European Union (TEU) provides guidance on how to ensure legitimacy, quality and balance. Article 1 TEU formulates openness as an inextricable characteristic of the EU: “an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen”.

Article 1 of the TEU implies the Union can not take a path that leads to confidentiality, if a path leading to openness is available. The negotiations will have to take place as openly as possible and as closely as possible to the citizen.

Openness leads to better results

Negotiations in international organisations show that openness is possible. Geist (2012) noted regarding ACTA:

“Yet a closer examination of similar international IP negotiations reveals that ACTA’s opaque approach was not ‘an accepted practice’, but rather was out-of-step with many other global norm-setting exercises. The WTO, WIPO, WHO, UNCITRAL, UNIDROIT, UNCTAD, OECD, Hague Conference on Private International Law, and an assortment of other conventions were all far more open than ACTA.”

Openness is not only possible, it also leads to better results. Geist argues that confidentiality had a negative effect on the quality of the ACTA text:

“The damage created by the lack of transparency extends beyond public distrust of ACTA. The failure to include experts throughout the negotiation process has caused significant damage to the substance of the agreement with numerous legal concerns as a result. (…) While the public concern over these provisions appears to have resulted in changes to the ACTA text, the lack of transparency associated the negotiations meant that these cases constituted the rare instance of public feedback having an impact on the final text. Had the negotiations followed more conventional global norms, it is much more likely that the final text would better account for the remaining substantive concerns.”

Flynn (2013) compares the secrecy of ACTA (“dead on arrival”) with the openness of the negotiations on the WIPO treaty for the visually impaired. In the latter case, there were ongoing releases of draft negotiating documents, WIPO webcasted negotiations, and even established listening rooms where stakeholders could hear break rooms where negotiators were working on specific issues. The openness led to the Miracle In Marrakesh. (Saez, 2013)

Discrimination leads to biased results

On the US side, KEI (2013) notes that several hundred “cleared advisors” have special privileges as regard access to the text, and that the current advisory board system focuses too much on big corporate interests, and provides almost no input from consumer and public interest groups.

KEI: “Without the text being publicly made available, it is almost impossible to provide appropriate feedback for the very proposals that will affect the general public the most. When negotiations are kept secret, the general public is denied access to important information and also denied the opportunity to effectively engage in the democratic process. The general public should not be forced to rely on leaks in order to access the text. Leaks are not a reliable or predictable source of information, and people should not have to risk jail terms or career ending sanctions just to enable to broader public debate. (…) The precise working of the provisions, references to other documents or international instruments, and cross­references throughout the text are vitally important to fully understanding the impacts of the agreement as a whole. Oral briefings, without benefit of the actual text, are therefore inadequate sources of information. The U.S. government is now ignoring the expertise of the plethora of individuals who specialize in particular areas.”

The EU also has a system of advisors with special privileges as regard access to texts. For instance, in the context of the EU – India trade agreement, the Commission created an advisory committee to assist it in the identification of barriers to market access in India. The committee is composed of representatives of the Member States and chaired by the representative of the Commission. Representatives of trade associations or companies were involved in this process and participated, as experts, in the work of the advisory committee and of working groups established on the basis of sector-specific expertise. The Commission denied Stichting Corporate Europe Observatory access to texts distributed among trade associations and companies. The General Court (2013) in Luxembourg allowed this discrimination, and failed to provide useful guidance that could have been found in TEU articles 1, 9 and 10(3).

Identification of barriers to market access is important, but it is only one aspect of regulatory convergence. In the case of India, the EU just tries to impose it rules on India. That will not be possible in the trade negotiations with the US. In these negotiations, legitimacy, quality and balance of regulations are at stake.

If the Commission creates an advisory committee like in the case of the EU – India negotiations, the EU will discriminate against its citizens, and create a real risk that the negotiations will lead to a biased result. If the EU does not create such a committee, the US will be better organised, and multinationals will have access to information from the US. This too creates a real risk on a biased result.

If the Commission creates an advisory committee, it will have to open it for consumer and public interest groups. But then the negotiations will still not take place as openly as possible and as closely as possible to the citizen.

Openness is necessary, possible and leads to better results. A human rights analysis leads to the same conclusion.

Participation is a human right

All EU member states have ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR). The EU’s obligation to respect, protect and fulfil the human rights enshrined in the ICESCR results from the constitutional traditions common to the Member States (article 6(3) TEU).

This was confirmed by the EU Court of Justice’s case law; in the case C-73/08 Bressol and Others, the Court gave a judgement on an alleged conflict between the Treaty on the functioning of the European Union and the ICESCR.

Citizens have a right to participate. Everyone has the right “to take part freely in an active and informed way, and without discrimination, in any important decision-making process that may have an impact on his or her way of life and on his or her rights under article 15, paragraph 1 (a)” of the International Covenant on Economic, Social and Cultural Rights, according to the UN Committee on Economic, Social and Cultural Rights, in its authoritative General comment No. 21. (ECOSOC, 2009)

In an answer to a European Parliament question regarding this human right, the Commission (2013) states that it attaches great importance to economic, social and cultural rights, and refers to article 11 TEU. But the Commission’s structured dialogue with civil society is seen by civil society as a waste of time, as there is only superficial information available. These meetings are neither informative, nor is this process without discrimination, as we saw above that trade associations and companies, or at least multinationals, receive more information.

Furthermore, the Commission disregards article 4 ICESCR. States may limit ICESCR rights, but only under three cumulative conditions as defined in Article 4 ICESCR:

“The States Parties to the present Covenant recognize that, in the enjoyment of those rights provided by the State in conformity with the present Covenant, the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.”

The EU meets the first condition, with Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents the EU limits access to documents by law. But the secrecy of trade negotiations is not compatible with the human right to participate. Nor is the secrecy solely for the purpose of promoting the general welfare in a democratic society – we saw above that openness is possible and leads to better results.

We conclude that the secrecy of the trade negotiations with the US is not compatible with the ICESCR, and thus violates the human rights of about 500 million Europeans.

References

Commission, 2013, Answer to Question on EU-US trade agreement and obligations under the International Covenant on Economic, Social and Cultural Rights (ICESCR) http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-2013-003301&language=EN

ECOSOC, 2009, Committee on Economic, Social and Cultural Rights, General comment No. 21, Right of everyone to take part in cultural life (art. 15, para. 1 (a), of the International Covenant on Economic, Social and Cultural Rights), E/C.12/GC/21, http://www2.ohchr.org/english/bodies/cescr/comments.htm

Flynn, 2013, WIPO Treaty for the Blind Shows that Transparency Can Work (and is Necessary) http://infojustice.org/archives/30027

Geist, 2012, The Trouble with ACTA: An Analysis of the Anti-Counterfeiting Trade Agreement, European Parliament Policy Department DG External Policies, http://www.europarl.europa.eu/committees/nl/studiesdownload.html?languageDocument=EN&file=73311

General Court, 7 June 2013, Case T‑93/11, Stichting Corporate Europe Observatory versus European Commission http://curia.europa.eu/juris/document/document.jsf?text=&docid=138132&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=665977

KEI, 2013, Comments on the Administration’s Intention to Enter Into Negotiations for the Transatlantic Trade and Investment Partnership (TTIP) Agreement http://keionline.org/node/1718

Saez, 2013, Miracle In Marrakesh: “Historic” Treaty For Visually Impaired Agreed http://www.ip-watch.org/2013/06/26/miracle-in-marrakesh-historic-treaty-for-visually-impaired-agreed/

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FFII condemns investor-to-state arbitration in trade talks with US

FFII press release:

Brussels, 14 June 2013 — The Foundation for a Free Information Infrastructure (FFII) condemns the inclusion of investor-to-state dispute settlement in the mandate for trade talks with the United States. Investor-to-state dispute settlement gives multinationals the possibility to sue states for special tribunals if changes in law may lead to lower profits than expected. This threatens democracy, the public interest and copyright and patent law reform, according to the FFII.

Today the EU Council is expected to grant the Commission a mandate to open trade negotiations with the United States.

During the discussions on the Anti-Counterfeiting Trade Agreement (ACTA), civil society groups warned that ACTA would make it impossible to reform dysfunctional aspects of copyright and patent law. A trade agreement with the US containing investor-to-state dispute settlement would have the same effect. One of ACTA’s most harmful aspects may return in an EU – US trade agreement.

Multinationals will be able to use billion euro claims to stop law changes in order to protect old or even harmful business models. After Germany decided to shut down older nuclear reactors Swedish energy group Vattenfall claimed 3.7 billion euro from Germany using investor-to-state dispute settlement. U.S. based pharma corporation Eli Lilly uses investor-to-state dispute settlement to challenge Canada’s patent law.

Multinationals will not have to use the well-functioning European court system to sue states. The special tribunals for multinationals will be placed above the high courts of the EU and the US. This is a fundamental design flaw, according to the FFII.

FFII analyst Ante Wessels: “Special interest tribunals above the European Court of Justice will distort the trias politica, the very foundation of our democracy. Naive politicians created a euro with design flaws, will equally naive European politicians hand over our democracies to multinationals? This is the most important question in the trade negotiations.”

Background information

The latest leaked draft mandate includes investor-to-state dispute settlement:

blogs.ft.com/brusselsblog/2013/06/france-films-foreign-trade-the-leaked-mandate/ and
http://blogs.r.ftdata.co.uk/brusselsblog/files/2013/06/TTIP-Rev-2-Mandate.pdf

See also Inside U.S. Trade – 06/07/2013: “In the June 5 meeting, other member states expressed reservations about the May 29 draft mandate, but it does not appear that they will oppose the entire mandate based on their positions, according to these sources. For example, Germany at the meeting this week said it is still not convinced that investment protection needs to be part of the trade agreement and that an investor-state dispute settlement mechanism is not needed in an agreement between two developed trading partners. However, sources said Germany seems willing to move past this reservation.”

Links

Friends of the Earth Europe, the European Consumers’ Organisation (BEUC) and Eurogroup for Animals, 2013, Warning sounded ahead of EU-US trade negotiations
http://www.foeeurope.org/warning-ahead-EU-US-trade-negotiations-110613

IP out of TAFTA – Civil Society Declaration signed by over 45 organisations
http://www.citizen.org/IP-out-of-TAFTA

Kelsey and Wallach, 2012, “Investor-State” Disputes in Trade Pacts Threaten Fundamental Principles of National Judicial Systems,
http://tpplegal.files.wordpress.com/2012/05/isds-domestic-legal-process-background-brief.pdf

Democracy Center, 2013, Unfair, Unsustainable, and Under the Radar – How Corporations use Global Investment Rules to Undermine A Sustainable Future,
http://democracyctr.org/new-report-unfair-unsustainable-and-under-the-radar/

Henning Grosse Ruse – Khan, 2012, Investor–State Arbitration to Challenge Host State Compliance with International IP Treaties?
http://worldtradelaw.typepad.com/ielpblog/2012/12/investor-state-arbitration-to-challenge-host-state-compliance-with-international-ip-treaties.html

Corporate Europe Observatory, 2012, Profiting from injustice – How law firms, arbitrators and financiers are fuelling an investment arbitration boom,
http://corporateeurope.org/publications/profiting-from-injustice

Permanent link to the press release:
http://press.ffii.org/Press%20releases/FFII%20condemns%20investor-to-state%20arbitration%20in%20trade%20talks%20with%20US

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EU Court allows more access to documents for companies than for citizens

Corporate Europe Observatory writes (CEO):

“Court ruling fails to stop business lobbies’ privileged access in EU-India trade talks

In a ruling delivered today following a lawsuit by lobby watchdog Corporate Europe Observatory, the EU’s General Court in Luxembourg concludes that the European Commission did not violate EU rules when withholding information about the EU-India free trade talks from the public, even though it had already shared the information with corporate lobby groups. Corporate Europe Observatory warns that this decision risks deepening the secrecy around EU trade negotiations and legitimises the Commission’s practice of granting corporate lobby groups privileged access to its policy-making, at the expense of the wider public interest.”

See CEO’s press release and the ruling.

The Court notes that “an advisory committee was created to assist the Commission in its task and, more specifically, to assist it in the identification of barriers to market access in the third State concerned and of measures capable of eliminating those barriers.”

The Court ruled that by sending documents to experts, including to trade associations with many members, the documents did not enter into the public domain.

The Court also ruled that CEO was not an invited expert, so discrimination was allowed.

I note, regarding expert groups:

- secrecy of negotiations is not full, experts can receive information,

- market access is not the only interest the EU has, there is room for more expert groups, for instance to assist the Commission in the identification of barriers to access to medicines, or to assist the Commission to better safeguard the public interest.

- in the European Parliament only the trade committee has access to documents, while there is essential expertise in other committees as well, and there is essential expertise outside the parliament. As the Commission can make an expert group, couldn’t the Parliament do that as well? (The Commission’s expert group is based on a Council decision.)

But expert groups are not the real answer. Citizen participation will lead to better results, and is a human right. Everyone has the right “to take part freely in an active and informed way, and without discrimination, in any important decision-making process that may have an impact on his or her way of life and on his or her rights under article 15, paragraph 1 (a)” of the International Covenant on Economic, Social and Cultural Rights.

The EU should respect our human right to participate.

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Positions on investor-to-state dispute settlement

Dutch newspaper De Volkskrant today opens with an article on investor-state dispute settlement (ISDS), stating that ISDS can have far-reaching effects on EU environmental laws. De Volkskrant writes it has a leaked draft of the EU – Canada trade agreement.

Jan Kleinheisterkamp of the London School of Economics says the concerns about ISDS are not unrealistic. He points to the Vattenfall – Germany case, involving a 3.7 billion euro claim against Germany.

Judith Merkies, MEP, S&D, says ISDS compromises the member states sovereignty.

Marietje Schaake, MEP (ALDE) finds the critique understandable, investment funds can fight, delay or influence new laws. But, she says, the critique shouldn’t be exaggerated. ISDS creates guarantees for companies and can help to stimulate investments.

I find Schaake’s position rather problematic. There are serious concerns that ISDS may undermine democracy and our ability to regulate for the public interest. This may be a defining moment. Just stating that concerns shouldn’t be exaggerated is too simple. And Brazil, the country attracting most foreign investments, does not sign ISDS clauses. Schaake’s reasoning fails.

According to De Volkskrant, the Netherlands is in favor of including ISDS in trade agreements, while Germany and France would show some hesitations.

See also:

Vrijschrift Foundation rejects EU – US trade mandate http://acta.ffii.org/?p=1903

Update:

See also: A Response To The Critics Of “Profiting From Injustice” http://kluwerarbitrationblog.com/blog/2013/01/02/a-response-to-the-critics-of-profiting-from-injustice/

The right to say no – EU-Canada trade agreement threatens fracking bans
http://www.tni.org/briefing/right-say-no

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Vrijschrift Foundation rejects EU – US trade mandate

The EU draft mandate for trade negotiations with the United States contains serious flaws and should rejected, according to the Vrijschrift Foundation. Vrijschrift writes this in a letter to the Chairman of the Dutch House Committee for Foreign Trade and Development Cooperation, Mr de Roon.

The EU Member States are expected to grant the European Commission a mandate for trade negotiations with the United States in June. On Thursday, June 6th, the Dutch House Committee for Foreign Trade and Development Cooperation will formulate its opinion.

Openness

Vrijschrift notes that the draft mandate allows the European Commission to refuse citizens, civil society organizations, EU member states governments and national parliaments access to draft texts. This will result in (foreign) companies having better access to information about the negotiations. This creates a significant risk that the negotiations will lead to a substandard and unbalanced result, according to Vrijschrift.

Human Rights

The draft mandate proposes to include a reference to human rights in the non-binding preamble of the trade agreement. This offers insufficient protection for human rights, according Vrijschrift.

Democracy

The draft mandate also includes international “investor-to-state” arbitration. This means that (foreign) companies can demand from the EU and Dutch taxpayers high damages if changes in laws may lead to lower profits than expected. These arbitration panels are placed above the supreme courts of the Netherlands, the EU and the U.S. Multinationals can use billion euro claims to stop law changes in order to protect old or even harmful business models. This threatens the sovereignty of our constitutional democracy and the primacy of the parliament. For instance when pharmaceutical companies disagree with health policies. Or when the tobacco industry suffers damage from a successful anti-smoking policy. Thus, companies acquire state powers.

The draft mandate notes that the trade agreement should be without prejudice to the right of the EU and the Member States to adopt and enforce measures necessary to pursue legitimate public policy objectives. But the draft mandate proposes to leave the decision whether laws are lawful to external arbitration tribunals, whose composition in practice is incomparable to that of a judiciary as we know it. This is a fundamental design flaw, according to Vrijschrift.

Vrijschrift notes: “The decision whether legislation is lawful, is a constitutional decision. Granting private interests constitutional powers undermines our democracy. The euro currency contains design flaws, this puts the EU at risk. The desire to boost the EU with a trade agreement with the US is perfectly understandable. We understand the urgency. But a trade agreement with fundamental design flaws will limit policy space too much – a price we can not afford to pay, especially not in times of crisis.”

Vrijschrift considers that the draft mandate needs major improvements regarding openness and human rights, and that there is no room for investor-to-state arbitration in a democratic society.

Vrijschrift letter to the Chairman of the Dutch House Committee for Foreign Trade and Development Cooperation, Mr de Roon (in Dutch)
https://people.vrijschrift.org/~ante/ttip/Vrijschrift-Commissie-BuHaOs-2013-05-31.pdf

Vrijschrift blog,
https://www.vrijschrift.org/serendipity/index.php?/archives/150-Vrijschrift-wijst-mandaat-voor-onderhandelingen-met-Verenigde-Staten-over-handelsverdrag-af.html

Draft mandate, Presidency compromise proposal, 21 May 2013,
https://netzpolitik.org/2013/leak-aktueller-entwurf-des-verhandlungsmandates-zum-eu-usa-freihandelsabkommen/

Democracy Center, 2013, Unfair, Unsustainable, and Under the Radar – How Corporations use Global Investment Rules to Undermine A Sustainable Future,
http://democracyctr.org/new-report-unfair-unsustainable-and-under-the-radar/

Kelsey and Wallach, 2012, “Investor-State” Disputes in Trade Pacts Threaten Fundamental Principles of National Judicial Systems,
http://tpplegal.files.wordpress.com/2012/05/isds-domestic-legal-process-background-brief.pdf

NGOs, 2013, European, Canadian and Quebec organizations, Transatlantic Statement Opposing Excessive Corporate Rights (Investor – State Dispute Settlement) in the EU – Canada Comprehensive Economic and Trade Agreement (CETA),
http://tradejustice.ca/pdfs/Transatlantic%20Statement%20on%20Investor%20Rights%20in%20CETA.pdf

Vrijschrift, 2013, CETA-verdrag bedreigt internet, gezondheid en democratie,
https://www.vrijschrift.org/serendipity/index.php?/archives/146-CETA-verdrag-bedreigt-internet,-gezondheid-en-democratie.html

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European Parliament votes for fake openness in TTIP / TAFTA

(Updated) The European Parliament adopted a resolution on EU trade and investment negotiations with the United States of America. All amendments to the resolution were rejected, and with this all amendments were rejected that asked for real openness, or asked for leaving investor to state dispute settlement out, or would have made an improvement on the paragraph on intellectual property rights.

This is a bad development. The United States informs companies and business associations. The Commission gives more information to companies and business associations than to citizens. This creates a real risk that the negotiations will lead to a substandard and biased result.

See also:
TAFTA: First Step Towards a Super-ACTA
https://www.laquadrature.net/en/tafta-first-step-towards-a-super-acta

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Pre vote blog:
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The draft European Parliament resolution on EU trade and investment negotiations with the United States of America aims for fake openness. Paragraph 21 of the draft resolution recalls the need for continuous and transparent engagement by the Commission with a wide range of stakeholders. I have visited some Civil Society Dialogues organised by the Commission. The Commission just states there are no problems and, sorry, as trade negotiations are secret, they can give no details. A masochist may find such meetings rewarding.

Civil society organisations want access to draft negotiation texts, at least for regulatory aspects. Companies have access, the Commission discriminates against citizens, while access is a human right. See the FFII letter to European Parliament Trade committee; see also KEI comments.

The fake openness paragraph comes from a compromise amendment in the International Trade committee, supported by a majority of groups in the parliament.

Real openness is an uphill battle. There are some amendments stressing the need for real openness (for instance amendments 10, 22, 26, and 36 and 37).

(See the parliament’s info page, at the bottom, subject: Trade, click show amendments.)

Investor to state dispute settlement

Investor to state dispute settlement creates a real risk to democracy, human rights, the public interest and our ability to solve financial crises. See the FFII letter to European Parliament Trade committee.

Some amendments call on the Council to exclude investor-to-state dispute settlement from the negotiating mandate (amendments 15, 21 and 29).

Copyright and patents

Paragraph 12 of the draft resolution stresses that intellectual property is one of the driving forces of innovation and creation and a pillar of the knowledge-based economy. It fails to stress that exclusive rights on knowledge and culture also hamper access to knowledge and culture, health, food security, innovation and diffusion of green technology. It fails to stress that limitations and exceptions to exclusive rights are essential for innovation. Paragraph 12 also stresses that the agreement should include strong protection of precisely and clearly defined areas of intellectual property rights, but does not define which areas. Amendment 30 offers (some) improvement.

Debate Wednesday (point 92) afternoon or evening, vote Thursday noon.

Citizens may like to contact their MEP on these and other issues.

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Think twice before signing investor to state dispute settlement treaties

If countries do not want to defend themselves in investor to state dispute settlement (ISDR) cases, they better think twice before signing them, Mr H. Lee-Makiyama said yesterday. In that case, they better also think twice before giving the Commission a mandate to negotiate a trade agreement with the US, as they may not have a veto on the outcome.

Mr Lee-Makiyama, director of the European Centre for International Political Economy, was a panelist at member of European Parliament Marietje Schaake’s event “What role for intellectual property rights in the Transatlantic Trade and Investment Partnership“. (TTIP)

He said that trade agreements are not civil law, and should not be read as civil law. There is no country in the world that respects all rules in trade agreements, including the EU, he said.

Investor to state dispute settlement cases are decided by lawyers, who interpret international agreements as contracts. Could the rise in ISDR cases be related to interpreting agreements much stricter than they were ever meant? There is a goldmine for lawyers and adventurers then.

I asked Mr Lee-Makiyama whether ISDR is a game changer in the interpretation of international agreements. After giving some historical background, he said countries better think twice before signing investor to state dispute settlement treaties.

As noted earlier, the member states of the EU may not have a veto on the proposed trade agreement with the US, they may like to think twice before giving the Commission a mandate to negotiate.

Mr B. Hugenholtz (director of IvIR) said that intellectual property rights are not primarily a trade issue and that the most important reason not to include intellectual property rights in the trade agreement with the US is that it will lock in our societies, blocking reform.

Mr R. Schlegelmilch (Commission, DG Trade) said the Commission does not want copyright rules in the agreement, but only enforcement practice. In response, Raegan MacDonald from Access noted that in ACTA privatised enforcement practice was one of the most controversial issues.

Mr Schlegelmilch said the EU and the US will negotiate the agreement in secret because that is more easy.

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TTIP / TAFTA: Meaningful or fake transparency?

Mr Daniel Caspary, European People’s Party (EPP) coordinator International Trade Committee, said this morning that looking at draft negotiation texts does not make any sense.

This morning the EPP group in the European Parliament organised a breakfast debate on the proposed trade agreement with the US (TTIP / TAFTA).

The most interesting remark was about transparency. Many speakers at the meeting pointed out transparency is essential as the agreement involves regulatory convergence (may change our laws). Many speakers called for the timely publication of negotiation texts.

Organising MEP Caspary then said in his closing remarks that after doing it several times he realised that it does not make any sense to look at draft negotiation texts as they are living and changing all the time. He wants to discuss, at a later meeting, how transparency is delivered.

It doesn’t make any sense to look at texts? We are only to listen to the Commission saying what the negotiations are about?

With the software patents directive the Commission told us it was only about computer implemented inventions, not about software patents. Looking at the text, we knew that was not true.

With ACTA, the Commission said the criminal measures were only for commercial scale infringements. Looking at the text we saw that the definition of commercial scale was outrageous.

Looking at texts is essential.

Next week the European Parliament will debate and vote on a resolution on the trade agreement. Will the parliament follow the EPP, and only ask for fake transparency? Or will the parliament adopt a meaningful amendment on transparency? It will be an essential vote.

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