Recent Stories

Multilateral investment court assessment obscures social and environmental impacts

This FFII position paper provides feedback on the inception impact assessment “Convention to establish a multilateral court on investment” (IIA). See below or the pdf. For the related consultation see here. The IIA’s baseline scenario – what will happen without policy changes – is just one sentence long and does not expect a multilateral investment court (MIC) to have social or environmental impacts. The paper presents more comprehensive baseline and multilateral investment court scenarios.

New ISDS consultation seems surreal

The European Commission has launched a consultation on an investor-to-state dispute settlement (ISDS) variant: a multilateral investment court. 1 In an email the commission confirms the consultation has a narrow scope. The commission does not want feedback on the system as a whole. This way the system’s social and environmental impacts may go unmentioned in the consultation results. This is irresponsible, as the system as a whole will strengthen investments vis-à-vis democracy and fundamental rights This undermines our values and ability to respond to crises, including climate change.

Consultation on ISDS successor obscures impacts

The EU commission has launched a consultation on a multilateral investment court (MIC), an investor-to-state dispute settlement (ISDS) variant. 1 The commission does not expect a multilateral investment court to cause social or environmental impacts. 2 This is remarkable as the current ISDS system causes serious impacts. And even worse, the consultation seems designed to obscure the social and environmental impacts. In an email to the commission I explained the issues and asked to publish a more meaningful Inception Impact Assessment and consultation.

Multilateral investment court would impede measures on climate change

The European Commission has launched a consultation on a multilateral investment court (MIC). The MIC would be a successor to investor-to-state dispute settlement (ISDS). Mankind faces an existential threat: climate change. The data is disconcerting and shows our societies are not on top of the issue. Further reforms are needed; reforms will harm vested interests.

A disappointing TTIP human rights assessment

ECORYS published a final draft human rights assessment of the trade agreement with the US (TTIP). The official name is a Trade Sustainability Impact Assessment (TSIA). I provided feedback on an earlier draft, see here. In my opinion, the final draft is disappointing. I will give two examples.

European Parliament resolution: check legality ISDS/ICS in CETA

Members of the European Parliament want the EU’s Court of Justice to check whether a parallel legal system in the trade agreement with Canada (CETA) is compatible with the EU treaties. The parallel legal system, known as ISDS / ICS, is only accessible to foreign investors. Eighty-nine members tabled a resolution. The Parliament will vote next week, Wednesday 23 November 2016. According to associations of judges (one, two), academics (letter from over 100 law professors) and NGOs (ClientEarth, two pager), the ISDS / ICS parallel legal system is not compatible with the EU treaties.

MEP Schaake unconvincingly defends ISDS in CETA

Member of the European Parliament Marietje Schaake used harsh words on Wallonia for (temporarily) blocking the signing of the EU-Canada trade agreement (CETA): unbelievable, shameful political opportunism, really incomprehensible. In the press release she also defended the inclusion in CETA of investor-to-state dispute settlement (ISDS), a parallel legal system for multinational investors. In this blog I will argue that Schaake supports an approach that puts at risk democracy and the rule of law. Schaake is the liberal groups’s (ALDE) spokesperson on trade. Wallonia has seriously looked at CETA for years.

A deceitful attempt to get CETA signed

Update: new version of Declaration, see below

The European Commission and Canadian government work on a “Joint Interpretative Declaration” that should convince governments that have doubts about signing the EU-Canada trade agreement (CETA). The Declaration does not change CETA’s text. It does not give a clarification of provisions. Take the first paragraph of the section on Investment Protection:

“CETA includes modern rules on investment that preserve the right of governments to regulate in the public interest including when such regulations affect a foreign investment, while ensuring a high level of protection for investments and providing for fair and transparent dispute resolution. CETA will not result in foreign investors being treated more favourably than domestic investors.”

Broken data protection in EU trade agreements

The study “Trade and Privacy: Complicated Bedfellows? How to achieve data protection-proof free trade agreements” is remarkable. On the one hand it shows, beyond doubt, that the EU fails to sufficiently protect personal data in its trade agreements. On the other hand, one of the safeguards it recommends could leave our personal data more vulnerable. Monique Goyens, Director General of The European Consumer Organisation (BEUC), commented:

It’s unacceptable that the EU’s privacy and data protection rules could be challenged through trade policy.

European Commission publishes Privacy Shield

The European Commission has published its Privacy Shield decision together with a Communication. The Privacy Shield will govern the transatlantic commercial flow of personal data from Europe. The European Commission follows up of its previous Safe Harbour decision that was turned down by the European Court of Justice in its Schrems decision. The core of Privacy Shield is hidden in provision 61:

(61) In the light of the information in this section, the Commission considers that the Principles issued by the U.S. Department of Commerce as such ensure a level of protection of personal data that is essentially equivalent to the one guaranteed by the substantive basic principles laid down in Directive 95/46/EC

Earlier published drafts of the document stated “as a whole”. Unpublished Commission drafts previously unlawfully obtained by Politico.eu and made available to their paid subscribers also contain the “as such” wording.

CETA – Keine Erkenntnisse

Aus einer Anfrage an die Bundesregierung geht hervor, dass Deutschland zwar von der Kommission gegenüber Drittstaaten vertreten wird, aber nicht ausreichend über die Gespräche informiert. Das verdeutlicht Nachbesserungsbedarf in der Administration von EU Kommissarin Malmström hinsichtlich Transparenz, auch gegenüber den Regierungen der Mitgliedstaaten. Sie präsentierte diese Tage eine “Neue Strategie”. Abgeordneter Harald Ebner (BÜNDNIS 90/ DIE GRÜNEN) Welche konkreten Themen wurden nach Kenntnis der Bundesregierung beim Treffen des EU-Canada Trade & Investment Subcommittee am 27. November 2014 unter den Tagesordnungspunkten 10 („GMO Import Authorizations“) und 12 („Food Labelling Issues“ inklusive Klonen) mit welchen Ergebnissen diskutiert?

EU commission ISDS proposal a threat to democracy and civil rights

The commission has tabled its investor-to-state dispute settlement (ISDS) reform proposal for discussion with the United States and published it on 12 November 2015. Summary

This analysis concludes that the commission’s proposal would undermine democracy, civil rights, and the rule of law. The proposal contains neither exhaustion of local remedies, nor a wide margin of appreciation for states, lacks various institutional safeguards for judicial independence – leading to perverse incentives – , gives greater procedural rights to foreign investors, includes substantive rights open to broad interpretation, and contains a “right to regulate” that does not protect against unlimited backward looking damages including expected profits and interests. Unlimited damages and the threat of such damages have a chilling effect on policy makers, compromise the independence of officials, and could force a state to revise a regulation or decision as part of a settlement. The commission’s proposal would place investment tribunals above states, above democracies.

Can TTIP Protect European Creativity?

On 4 June 2015 the European Liberal Forum (ELF) organised a discussion on TTIP and the creative industries: Can TTIP Protect European Creativity? [1] TTIP is the trade agreement with the US under negotiation. ELF now posted some pictures on Facebook summing up the discussion: one, two, three, four, five. This of course can not capture the richness of the debate. To add some context, here are my talking points:

Patents and copyrights are monopolistic rights.

TTIP – money for Leaks?

In recent years trade deals as TTIP, ACTA, TISA, TPP, SOPA etc. face a public call for greater transparency. Relevant trade institutions responded to it, released documents and promotional material. Though the European Commission, mandated by the Lisbon Treaty to conduct its work “as openly as possible”, concluded confidentiality agreements with negotiating partners, on unknown legal grounds, that give a pretext to deny access to incoming documents. While the legacy document access rules don’t provide for better access to existing documents the European institutions released more official documents, often documents that were previously leaked.

European consumers can stand the truth

Some European consumers are concerned about the transatlantic Trade and Investment Partnership (TTIP), others are not. The EU negotiates it on our behalf with the US. As a consumer association FFII took a critical stance towards TTIP early on, like an expert who explains you whether a used car you might consider to buy has defects. We now have a vital and broad public debate where at times criticism is over the top and very badly informed. The same applies towards the voices of proponents.

EU Parliament resolution on TTIP is a diplomatic blunder

Today the European Parliament adopted a non-binding resolution on the trade agreement with the United States (TTIP). Based on this resolution we could have a discriminating and expansive investor-to-state dispute settlement (ISDS) system, rigged to the advantage of the United States. A diplomatic blunder. (adopted ISDS amendment)

First, discrimination. ISDS gives foreign investors — and only foreign investors — the right to bypass local courts and challenge governments before supranational investment tribunals.

ISDS compromise threatens democracy

Martin Schulz, the president of the European Parliament proposed a compromise amendment on investor-to-state dispute settlement (ISDS). [1]

The amendment calls on the EU commission to replace ISDS with ISDS: “to replace the ISDS-system with a new system for resolving disputes between investors and states”. The president’s proposal discriminates: only foreign investors would have access, local investors, states or citizens won’t. [2]

It is also anti-democratic and a slippery slope. Supranational fora fall outside a democratic context.

France proposes empty ISDS reforms

The French government published a proposal for investor-to-state dispute settlement (ISDS) reforms: Towards a new way to settle disputes between states and investors, May 2015. (pdf, French: Le Monde)

Summary

The French proposal would grant for-profit arbitrators, working in a system that creates perverse incentives, vast discretionary powers. This creates a serious risk on expansionist interpretations. Foreign investors would be able to use this biased system to challenge governments. As it is practically impossible to withdraw from trade agreements, the EU would be locked in.

A week of fundamental critique on trade negotiations

Last week the European Parliament postponed the vote on a resolution on the EU-US trade agreement (TTIP). The vote was postponed because many social democratic members oppose investor-to-state dispute settlement (ISDS). The US House voted a fast-track package down. This week various authors criticised fundamental aspects of ongoing trade negotiations. The geopolitical argument: China

Lawrence Summers and George Soros pointed out that the use of anti-China language is dangerous.

S&D ISDS amendments are seriously broken

Wednesday the European Parliament will vote on a resolution on TTIP, the agreement with the US under negotiation. The EU commission wants to add investor-to-state dispute settlement, or ISDS, to this agreement. This would give foreign investors the right to bypass local courts. In the resolution the Parliament will express its view on TTIP and ISDS. Here is the text of the draft resolution (the report of the trade committee) and the amendments; on ISDS the social democrats (S&D) tabled amendments 114-116.

OpenTechSummit 2015 in Berlin a Fantastic Success

The OpenTechSummit 2015 took place for the first time in Berlin on May 14, 2015 with the Foundation for a Free Information Infrastructure as a core partner and supporter. With more than 700 attendees – from policy makers, developers, start-ups, to contributors – and over 70 speakers the event was a huge success. A wonderful atmosphere came up through the participation of lots of kids in the hacking area and in the workshops. Topics at the OpenTechSummit range from future technologies, open hardware, encyclopedias, open data and free knowledge, software development, community networks and digital policies. The FFII was the main responsible for the track “Internet, Society and Patents”.

ISDS: diplomatic blunder Malmström threatens democracy and privacy

The EU commission published a concept paper on investor-to-state dispute settlement (ISDS). In my opinion the plans are a diplomatic blunder which threatens our democracy and privacy. ISDS would give foreign investors – and only foreign investors – the right to bypass local courts and challenge governments before supranational investment tribunals. ISDS “solves” incidental discrimination against foreign investors through structural discrimination against local investors, governments and citizens. The commission wants to go ahead with the trade agreements with Canada and Singapore.

ISDS Mantra

“Debating Europe” asked the Commissioner Malmström:
Can #TTIP negotiations proceed without the #ISDS mechanism? It is a very good question which the Commissioner did not answer. Here is my answer:
ISDS is just an enforcement layer and does not affect substantive elements. Thus we could do without. Historically, lack of enforcement layers was an academic critical talking point against the GATT process.

OpenTechSummit 2015 Berlin May 14

The OpenTechSummit will take place for the first time in Berlin on May 14, 2015 with the Foundation for a Free Information Infrastructure as a core partner and supporter. The Free and Open Source technology event brings together policy makers, developers, start-ups, and contributors. Topics at the OpenTechSummit range from future technologies, open hardware, encyclopedias, open data and free knowledge, software development, community networks and digital policies. In the evening there will be an “OpenTech-Himmelfahrt” lounge. The FFII is the main responsible for the track “Internet, Society and Patents”.