While the secrecy, harmonisation and the inclusion of investor state dispute resolution are bad enough aspects of TTIP, it seems this is another ‘Living Agreement’. Not only will the courts that interpret these agreements be beyond public accountability, any amendments to the treaty and agreements will be so too. I found this out at the meeting called by the Open Rights Group where Nick Dearden of the World Development Movement came to speak.
TTIP is one of three worldwide multi-lateral trade agreements being negotiated. The other two are called TPP and TISA. They are being negotiated in secret, although business lobbyists seem to have no trouble getting their views heard. Interestingly there is a standing body, the World Trade Organisation which has since its foundation in 1995 had the responsibility for incubating, negotiating and promulgating international, multi-lateral trade agreements. The problem for business and pro-business governments is that it’s stuck and now has a majority that pursues an anti-neo colonialist agenda. Having lost military power in the developing world, the new governments, on the whole, aren’t keen to yield their sovereign power to the corporations of their past imperial masters. The free trade agenda of the WTO is not helped by the hypocritical position of most of the developed world of wanting free trade in manufactured goods and services and a protectionist market to protect their farmers and land owners. The result is that business is trying to create a “coalition of the willing” and negotiate the agreements outside the WTO. These initiatives are aided by their ‘capture’ of the US Government which seems to be readopting Coolidge’s slogan, “The chief business of the American people is business.” These treaties with their unaccountable courts are fundamentally a transfer of power from the citizen to business and are being negotiated in secret at the behest of business lobbyists. They are also designed to exclude the powerful growing developing economics from setting the next generation’s terms of trade; countries notable by their absence include China, Brazil, India and Russia, together with the Republic of South Africa, Indonesia and Nigeria. The exclusion of Russia will have a large impact on Europe’s energy markets.
While the reduction in standards on food safety, environmental & consumer protection, possibly employee rights and privacy are a, to borrow a phrase, clear and present danger to citizen’s rights possibly the most egregious attack on our political power is the Investor State Dispute Systems. These create a liability on governments so that legislative programmes that diminish corporate revenues, incur a duty to compensate the companies. The precursor of these laws is illustrated by the dispute between Argentina and several hold out vulture funds who have gone to court in New York and have a court injunction that Argentina must pay them their full coupon before they can pay those who have agreed to take a haircut i.e. 90% of the bond holders. An Argentine warship was briefly impounded. See also Nails in the Coffin.
There are more examples where Governments are being taken to court via previously agreed investor state dispute schemes,
- Philip Morris the tobacco giant is suing Australia, over plain packaging laws
- the Canadian province of Quebec put in place a fracking moratorium to allow for scientific research and is being sued by a US mining company
- the Swedish company Vattenfall is looking to legally challenge Germany’s no-nuclear power laws
- a Dutch company HiCEE BV sued Slovakia over it’s decision to allow and then prohibit profit within it’s health service insurance industry @
Other specific problem areas, although business may wait for TISA is that
- they are seeking a lighter regulation for financial services, they are looking to weaken the Dodd Frank Act which restricts the way in which financial services can be sold and undermine the European successor regulatory rules,
- and of course, our old friends the copyright industry are looking to reintroduce aspects of ACTA to harmonise the law and penalty schemes for so-called intellectual property malfeasance
Further more it is understood that the current proposals do not plan for domestic exhaustion i.e. the claimants do no have to pursue remedy in the national courts of jurisdiction.
Nick also stated that it was believed that TTIP will be a ‘Living Agreement’ with its own extra-democratic amendment processes. So not only do companies get to write laws that entrench their interests, arrange to have them interpreted by unaccountable courts, they ensure that the democratic institutions that sign the treaties can’t change their mind.
On the other side, there is a new European Parliament and the Commission whose term of Office expires qt the end of October is running out of time. Its new President has been appointed, the new Commission has a slightly more left wing mandate, the Council is slightly to the Left than the one that appointed the Barosso Commission, the trade commissioner De Grucht is unlikely to be re-nominated, opposition is growing in Germany and the United States. The US administration have failed to obtain ‘fast track’ authorisation for the negotiations thus increasing Congressional scrutiny of the end results. At the moment, I would not bet on Congress agreeing a ‘Free Trade’ treaty. They rejected the US end of ACTA, and have refused to pass the copyright laws that Hollywood has installed in other parts of the world. This isn’t over yet.
I was the last speaker/questioner and made the following points
- ACTA was defeated; the European Parliament, with the exception of the French UDP voted it down. The US Congress refused to pass their equivalent also.
- The European Parliament has stated they will not accept TTIP if there is a treaty agreement to weaken the European rights to privacy. There is a will for a fight here, probably based on the views of the children of Europe’s fascist and soviet occupied societies.
- The ‘Living Agreement’ proposal should be lethal for the proposal. Why would politicians give up their right to change their mind? It certainly didn’t help ACTA.
- De Grucht, the European chief negotiator is on his way out; he is unlikely to be renominated and even if this occurs, would be extraordinarily lucky to keep the portfolio.
- ISDS is another ceding of political power from the polity to the corporatist state; the state of mass politics to do this in Europe is wrong and even if they can’t serve or don’t want to serve the people, in careerist terms why would politicians do it.
I also, jokingly asked, if ISDS give the IT storage vendors a case for compensation if the Telcos have to stop buying disk to retain the data used spying on their customers?
My final thought is that the state of UK law is that, if there is further transfer of power from the UK Parliament to the European Union, there must be a referendum. Would signing a Living Agreement embedding Investor State Dispute Resolution be that trigger?
References and Citations
- Mallesons on Philip Morris vs Australia
- Network for Global Justice in Investment on Quebec and fracking
- The Transnational Institute explores the Vaterfall vs Germany nukes dispute
- Education International on HiCEE & Slovakia and Vaterfall & Germany
For more on the relative economic power of the G20 economies, see G-20 major economies on wikipedia.
All predicted by George Monbiot in, “A global ban on left wing politics“.
The picture is taken from an article “Attac aufruf: Fukushima mahnt – Atomanlagen jetz abschalte” at norbertwiersbin.de