Flawed Dutch government study on ISDS

Today the Dutch government published “The Impact of Investor-State Dispute Settlement (ISDS) in the TTIP”. The Parliament had asked for this study. The study is flawed. —————-

Update: See also the Vrijschrift note “Shortcomings in dutch government study on investor – state arbitration”, which is more elaborate and more recent. Vrijschrift letter to Dutch Parlament (Dutch)

A first reading reveals:

It does not mention that it is near impossible to withdraw from trade agreements. Continue Reading →

FFII submission: ISDS: A rigged system, avoid lock-in

FFII submission to European Commission consultation on investor-to-state dispute settlement (ISDS):

This submission concludes that investor-to-state dispute settlement lacks conventional institutional safeguards for independence and has characteristics of a rigged system. The appointment of arbitrators is not neutral and gives the US an unfair advantage. The US never lost an ISDS case, we can not expect European companies to win major ISDS cases against the US, all the more as the US is not shy to exert pressure on arbitrators. We can expect that US companies will win ISDS cases against the EU and member states. This leads to four considerations. Continue Reading →

Investor-to-state dispute settlement is a rigged system

Investor-to-state dispute settlement (ISDS), the most controversial element of the proposed trade agreement with the US, has characteristics of a rigged system. ISDS gives the US an unfair advantage, we can not expect EU companies to win ISDS cases against the US. Trade agreements including ISDS would lock-in the EU, as it is practically impossible to withdraw from trade agreements. ISDS is controversial. Investment agreements with ISDS give foreign investors, usually multinationals, the right to circumvent domestic courts and challenge decisions of states for international investment tribunals if decisions may lead to lower profits than expected. Continue Reading →

ISDS threatens privacy and reform of copyright and patent law

On 3 December 2013, the Dutch Parliament requested the government to investigate the potential social and environmental risks and the consequences of investor-to-state dispute settlement (ISDS) and the consequences of ISDS for the Netherlands and the financial risks for the Dutch government. On 17 April 2014 companies and civil society organisations met at the Ministry of Foreign Affairs to discuss the ongoing “ISDS – TTIP study”. The ministry invited participants to send in further comments. The Foundation for a Free Information Infrastructure (FFII) submitted the note “ISDS threatens privacy and reform of copyright and patent law”. Download this note:

Below the summary of this note. Continue Reading →

Irresponsible EU parliament vote on ISDS tomorrow

Tomorrow the EU parliament will vote on investor-to-state dispute settlement (ISDS). The parliament will vote on a regulation regarding “International agreements: framework for managing financial responsibility linked to investor-state dispute settlement tribunals”. See the procedure file. The regulation is a deal between council and parliament, it establishes rules for managing the financial consequences of investor-to-state dispute settlement (ISDS). Who will have to pay, the EU or the member state, if the EU loses an ISDS case? Continue Reading →

German Parliament questions on TTIP

Thanks to the tool Offenesparlament.de you can find what questions are asked by Members of the German Bundestag (MdB) concerning the Transatlantic Trade and Investment Partnership to the German government. For instance the Government stipulates that sectoral exclusions are impossible because of WTO principles (Dr. Maria Flachsbarth, Parl. Staatssekretärin beim Bundesminister für Ernährung und Landwirtschaft):
Dennoch ist es aus der Sicht meines Hauses aufgrund von WTO-Bestimmungen ausgeschlossen, einen gesamten Bereich wie zum Beispiel den Agrarsektor aus diesem Verfahren bzw. aus den Verhandlungen zum TTIP auszunehmen. It needs further analysis why and how bilateral negotiations are governed by WTO trade principles. Continue Reading →

European Commission prepares to surrender our privacy

In my previous post I wrote that in the US – EU trade negotiations (TTIP / TAFTA) the US tabled a proposal that will undermine our privacy. I asked the EU chief negotiator a question about this. He did not acknowledge the issue, so he keeps open the option to surrender our privacy. Negotiations

Last week the 4th round of US – EU trade negotiations (TTIP) took place. On Wednesday chief negotiators Dan Mullaney (US) and Ignacio Garcia Bercero (EU) gave a briefing to stakeholders. Continue Reading →

US wants to undermine privacy in TTIP negotiations

(Updated) In the EU – US trade negotiations (TTIP / TAFTA) the US tabled a proposal that would prohibit to require local data storage. If the EU accepts this proposal, the EU would give away an instrument essential to protect privacy. On 5 March 2014 the Greens/EFA group in the European Parliament organised a meeting on the complex relationship between data protection, the Transatlantic Trade and Investment Partnership (TTIP), and the general context of EU-US relations after the Snowden revelations. (Stream available)

I spoke about why trade negotiations are not a good forum to protect privacy, see below. During the meeting EU commission trade negotiator Jan-Willem Verheijden said that privacy is not in the EU negotiating mandate. Continue Reading →

Tentative remarks on leaked CETA IP chapter

Today the German Pirate party published a leaked version of the intellectual property (IP) rights chapter of the EU – Canada trade agreement (CETA), version as of 17 December 2013. See Carta blog: Piraten leaken CETA-Dokument zu IPR (German). At first sight, the chapter does not go beyond EU law. That is not good news, in the sense that there are serious problems with EU IP law, exportation of EU law is not a good idea. EU IP law creates problems regarding access to knowledge and participation in culture, for remix artists, sequential innovation, and for software developers. Continue Reading →

A word on chlorinated chicken in TTIP

These days the European Commissioner for Trade Karel De Gucht claims chlorinated chicken was not a valid concern of the TTIP negotiations. 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. In the US it is common to use chlorine for desinfection of slaughtered poultry. The EU denies these US imports on food safety grounds under 191 TFEU (precautionary principle). The chlorinated chicken became a poster child of consumer campaign groups against the TTIP and raised suspicion of the European public against the TTIP. Continue Reading →

Commission says no IP harmonisation with TTIP

The Commission announced:
Given the efficiency of their respective systems, the intention is not to strive towards harmonisation, but to identify a number of specific issues where divergences will be addressed. What does “harmonisation” mean within the European Union institutions? Addressing legal and regulatory divergences between member states. Or as Wikipedia puts it:
In relation to the European Union, harmonisation of law (or “harmonisation”) is the process of creating common standards across the internal market. Though each EU member State has the primary responsibility for the regulation of most matters within their jurisdiction and consequently each has its own laws. Continue Reading →

IP and privacy in TTIP / TAFTA

With other representatives of civil society organisations and business stakeholders, I spent an afternoon at the Dutch Ministry of Foreign Affairs talking about the ongoing talks on a proposed EU – US trade agreement (TTIP/TAFTA). Intellectual property (IP)

Of course, the ministry assured us that TTIP will not contain ACTA-like Internet provisions or provisions that will limit access to medicine. TTIP will neither change substantial copyright nor the enforcement of copyright. We can only check this after texts are published, may that happen soon. The text of the EU-Singapore FTA is not reassuring, with examples of damages that go beyond adequate damages, creating an upward trend. Continue Reading →