The TTIP negotiations have started in earnest - before, meetings were largely preliminary, aimed at establishing the general positions of both the EU and US. And yet, curiously, very little seems to be happening, at least publicly. The next official round is not until early February next year, although it seems likely that informal meetings are still taking place behind closed doors.
One reason for this hiatus is that there has been a change at the top. Karel De Gucht has relinquished his post, which has been taken by the Swede Cecilia Malmström. She is adopting a very different style, not least in terms of her attitude to the public. Faced by the growing scepticism about TTIP's benefits, and anger over its complete lack of any meaningful transparency, Malmström has taken a conciliatory approach, promising more openness, some of which has now been announced.
But Malmström is still trotting out the same old misinformation about TTIP. In a recent opinion piece she published in the Frankfurter Allgemeine Zeitung, the paragraph about ISDS is particularly pernicious. Malmström says that European member states have signed a total of 1400 agreements that include ISDS; this is presumably to "prove" that ISDS is completely normal and totally harmless. Neither is true.
Those 1400 agreements were overwhelmingly with developing nations. The ISDS clauses were there to protect European investments in countries where the judicial systems were perhaps less than fair and reliable. In a sense, these were one-way ISDS chapters, since companies from those emerging nations almost never invested in Europe, and thus were unable to avail themselves of the ability to sue for alleged expropriation there - that's why European nations have rarely been sued under these trade agreements.
Moreover, just seven of those 1400 agreements were with the US. The countries involved were former Soviet states and Warsaw Pact members. Even though in retrospect the terms of those agreements were pretty bad, they looked good as a way of escaping the clutches of Russia, and of encouraging the US to support the countries signing them. Like the other ISDS chapters with developing countries, they are unrepresentative of what will happen with TTIP.
For a start, US investment in those ex-Warsaw Pact countries is relatively low, which means the opportunities for it to use ISDS clauses are very limited. Compare that with the whole of the EU, where there are around 50,000 subsidiaries of US companies, representing very substantial investments, and you can see that the risks of the EU or a member state being sued under ISDS in TTIP are vastly greater than was the case for those 7 earlier examples. So Malmström's claim that ISDS wasn't a problem then, and so won't be a problem now, is simply false.
She then goes to admit that the current ISDS chapters are problematic, but that the EU has already addressed that objection by reforming ISDS in CETA, the trade agreement with Canada. Specifically, she claims that in CETA:
Nations always have the freedom to decide about health systems, minimum wages and environmental protection.
That sounds good, but when you analyse the detailed wording of CETA's ISDS provisions, as the Canadian Centre for Policy Alternatives has done in its excellent, in-depth exploration of the final text, "Making Sense of CETA", this is what you find is actually the case as regards that supposedly strengthened "right to regulate":
The ‘right to regulate’ is mentioned three times in the agreement. In the preamble, the parties simply ‘recognize’ that the Ceta protects the right to regulate (“recognizing that the provisions of this Agreement preserve the right to regulate...”), yet the text fails to clearly and unequivocally confirm this right, especially in the investment chapter. The other mentions are to be found in the labour and environment chapters, so that, in effect, the Ceta shields the right to regulate from any international obligations to protect labour or the environment but not from all the detailed obligations in the investment chapter. Also in the environment chapter, the right to regulate is limited by formulations which require environmental policies to be implemented “in a manner consistent with the multilateral environmental agreements to which they are a party and with this Agreement,” meaning that environmental policies have to be consistent with the Ceta - not the other way round.
As that makes clear, far from protecting the EU's "freedom to decide" in the environmental sphere, as Malmström claims, CETA actually imposes new constraints on governments. The Canadian Centre for Policy Alternatives also points out that CETA is worse than earlier agreements in the way that the so-called "fair and equitable treatment" clause is framed. This does not inspire confidence for TTIP, since we know from the consultation that the ISDS chapter will be modelled on the earlier agreement.
Even if it weren't, CETA's ISDS will be a disaster for Europe if it is ratified - something that is fortunately still a long way off. That's because of the following:
The Ceta definition of ‘investment’ and ‘investor’ are overly broad and far beyond what would be advisable from a regulatory or public in -terest perspective. The Ceta defines an ‘investment’ as, “Every kind of asset that an investor owns or controls, directly or indirectly, that has the characteristics of an investment.” It defines an ‘investor’ as: “a Party, a natural person or an enterprise of a Party, other than a branch or a representative office, that seeks to make, is making or has made an investment in the territory of the other Party. For the purposes of this definition an ‘enterprise of a Party’ is: (a) an enterprise that is constituted or organised under the laws of that Party and has substantial business activities in the territory of that Party”). The reference to ‘substantial business activities’ is not enough to prevent ‘treaty shopping.’ For example, U.S. investors in Canada would be able to use the Ceta investment provisions and ISDS to challenge European state measures.
There's another trade agreement that the EU has recently finalised (but not ratified) that has exactly the same problem. It's with Singapore, and the dangers of its ISDS chapter are analysed in an important post from the FFII. If, like me, you don't know much about the EUSFTA, this is a good place to start. Here are a couple of the key issues:
1. The agreement creates a lock-in. Unlike most investment agreements ratified by European countries, it is not a stand-alone investment treaty, from which parties can withdraw. The investment chapter is part of a trade agreement, from which it is near impossible to withdraw.
2. The text lacks basic institutional safeguards for independence, creates perverse incentives and does not observe the separation of powers.
Expanding on the last point:
No institutional safeguards for independence
The text lacks basic institutional safeguards for independence: tenure, prohibitions on outside remuneration by the arbitrator and neutral appointment of arbitrators.
Arbitrators are paid for their task at least 3000 US dollar a day. This creates perverse incentives: accepting frivolous cases, letting cases drag on, letting the only party that can initiate cases (foreign investors) win to stimulate more cases, pleasing the officials who can appoint arbitrators.
No separation of powers
Both the claimants and the executive have a 50% influence on the make-up of [ISDS] tribunals. In a [national] court neither the claimant nor the executive has an influence on appointments, as both parties are not neutral.
A government may dislike a law by the former legislative and appoint an arbitrator accordingly. Only independent courts should decide on constitutional matters and questions of law.
It's that last point that remains the central problem with ISDS in TTIP: it effectively allows corporations to attack any legislation that affects their future profits, even if it has been passed by governments with an explicit mandate from the public. Signing up to any treaty - be it CETA, EUSFTA or TTIP - that contains ISDS is thus nothing less than a fundamental betrayal of European democracy.