As I've noted many times before, the investor-state dispute settlement (ISDS) mechanism has long been the most contentious aspect of TTIP, and that was reflected in the unexpected decision to hold a consultation on the area last year. The hope seems to have been that this would keep critics quiet, and allow the European Commission to come up with a few minor tweaks to its proposals while claiming that the public had been allowed to air their views.
It didn't quite work out like that. An unprecedented 150,000 replies were received - and this was on a hitherto obscure aspect of a traditionally boring trade agreement. That number alone bespeaks a new relationship between the public and the politicians who are supposed to serve them. And so the results of that consultation have been eagerly awaited: how exactly would the European Commission manage to turn the ultimate lemon into lemonade?
Now we know: they didn't. The 140-page analysis [.pdf] is almost entirely statistical, providing useful but rather dry summaries of how many people said what kind of thing. Here's the Commission's potted version:
The vast majority of replies, around 145,000 (or 97%), were submitted through various on-line platforms of interest groups, containing pre-defined, negative answers. In addition, the Commission received individual replies from more than 3,000 individuals and some 450 organisations representing a wide spectrum of EU civil society, including NGOs, business organisations, trade unions, consumer groups, law firms and academics. These replies generally go into more detail on the proposed approach.
Broadly speaking, the replies can be divided into three categories:
replies which indicate opposition to or concerns around TTIP in general;
replies opposing or expressing general concerns about investment protection/ISDS in TTIP;
replies which provide detailed comments on the EU’s suggested approach in TTIP, representing broad and divergent views;
The many replies in the first two categories are a clear indication of the concerns that many citizens across Europe have concerning TTIP generally and about the principle itself of investment protection and ISDS.
More important than that analysis is the European Commission's attitude to the results, and what it intends to do now. Here's what the Commissioner for Trade, Cecilia Malmström is quoted as saying:
“The consultation clearly shows that there is a huge scepticism against the ISDS instrument”, said Cecilia Malmström, Commissioner for Trade, in a comment.
“We need to have an open and frank discussion about investment protection and ISDS in TTIP with EU governments, with the European Parliament and civil society before launching any policy recommendations in this area. This will be the first immediate step following the publication of this report. I also note that there were constructive proposals in the consultation on areas that can be reformed.
In the first quarter of 2015, the Commission will organise a number of consultation meetings with EU governments, the European Parliament, and different stakeholders, including NGOs, business, trade unions, consumer and environment organisations, to discuss investment protection and ISDS in TTIP on the basis of this report. As a first step, the consultation results will be presented to the INTA Committee of the European Parliament on 22 January. Following these consultations during the first quarter, the Commission will develop specific proposals for the TTIP negotiations.
Yes, the response to the consultation’s overwhelmingly negative outcome is...to hold yet more consultations. That is of a piece with the consultation itself, which was clearly designed for professional lobbyists who are paid (handsomely) to spend much of their time responding to such consultations. Running a few more just means they get paid longer. But for the public, the opposite is true: repeated consultations are likely to wear down people's ability to respond, not least because the public have to earn a living, and therefore filling in forms - never mind attending meetings - represents a real cost to them.
The same scorn for ordinary people struggling to understand and respond to highly complex concepts in order to make their hitherto ignored views heard is present throughout the analysis:
About 70.000 replies consist of seven different batches, submitted through eight different NGOs. Each batch contains identical or very similar answers to all 13 questions;
Some 50.000 replies submitted via one NGO contain a different pattern. Questions 1 to 12 were answered with a general statement, as follows: "no comment – I don’t think that ISDS should be part of TTIP", while various individual answers were given to the last question (N° 13-general assessment).
Finally, there are around 25.000 replies which present similar features, i.e. no answer to questions 1 to 12 but only to question 13. The answers to question 13 are different but most of them express similar views. It was not possible to identify the source of these replies. However, given the similarities with the other collective submissions they were considered, for the purposes of this report, as collective submissions as well.
It's clear these "collective submissions" are regarded as inferior to the doubtless highly-polished replies from corporations and their lobbyists. The views of a senior US official, quoted in an article from European Voice, are even more contemptuous:
Europeans should be careful about giving the same weight to “a thoughtful response or a one-liner saying ‘I hate TTIP’”, he said, going on to question the commitment of some anti-TTIP NGOs to transparency. “In the US, NGOs publish their finances, but in Europe, we don’t really know,” he said. “We need to understand better; everybody should understand who is behind the NGOs.”
Lovely: not only are the simple expressions from the public less valid than those "thoughtful responses" from big companies and others, but the unnamed senior US official even goes so far as to indulge in a little ad hominem attack: "everybody should understand who is behind the NGOs". Got that? The insinuation being that those 145,000 negative responses were actually an underhand and carefully-orchestrated conspiracy by dark forces - probably communists - who hate America for its freedom...
Returning to the less paranoid world of the European Commission, we read:
“we need to reflect upon how to address the fact that EU countries already have 1400 bilateral agreements of this kind, of which some date back to the 50s”, added Malmström.
"The vast majority of these agreements do not include the kind of guarantees that the EU would like to see. This will also have to be an important element of our reflection when considering how to best deal with the question of investment protection in EU agreements, as failure to replace them by more advanced provisions will mean they remain in force – with all the legitimate concerns they have been raising over the last months", the Commissioner highlighted.
This is a very weak argument. The vast majority of those 1400 bilateral agreements include ISDS as a weapon for European nations to use against developing nations: there is practically zero danger of ISDS being used against the EU by these countries, which have few investments in Europe. This aspect should not be "an important element of our reflection" - it's irrelevant. Moreover, forcing Europeans to accept the many and major risks of ISDS as a kind of "dry run" for these updates that aren't even needed is just irresponsible.
For TTIP, the central question is just: do we need ISDS? The simple answer is: we do not. Here's why.
The EU and US have extremely well-functioning legal systems that make ISDS unnecessary. That's not just my opinion, it's the opinion of thousands of investors that have put their money into both the US and EU. The sums involved are vast: in 2012, the EU had invested € 1.655 *trillion* in the US, and the US had invested € 1.536 trillion in the EU. By now, that figure will be much higher. That's clear proof that ISDS is not needed in order to encourage investment on a scale unmatched anywhere else in the world. And finally, for any company that still thinks it needs some kind of protection when it invests abroad, there is an insurance scheme run by the World Bank designed specifically for this purpose, making ISDS redundant. These three simple facts make all the details about the European Commission's proposed "improvements" to ISDS irrelevant: you don't waste time and effort fixing what you don't need.
However, the very real dangers of ISDS - admitted even by the European Commission - mean that ISDS should not only be dropped from TTIP, but that it must go from the agreement with Canada (CETA), and the one with Singapore, neither of which is finalised yet. Both of these include ISDS, which would give companies from other countries - the US in particular - the ability to sue the EU indirectly. That, in its turn, will bring with it a regulatory chill as EU nations think twice about bringing in laws and regulations that might lead to claims under ISDS.
No matter how many times the European Commission repeats that it won't let ISDS force a government to change its law - something that has already happened - the mere threat of costly legal action and huge awards will still interfere with democratic decision-making. That alone is reason enough to drop ISDS. Combine that fact with the unequivocal rejection by 145,000 people who went to the trouble of participating in the ISDS consultation, and its inclusion shouldn't even be a topic for discussion any more.