What’s the deal with trade and transparency?

“Chlorinated chicken” has become the favourite reason of supporters of the EU-US trade deal – currently being negotiated – to dismiss opponents’ concerns as narrow and hyperbolic. Deliberately focusing on this particular issue is a useful distraction: the Transatlantic Trade and Investment Partnership (TTIP), as the proposed trade agreement is called, has always been about much more than Europe’s food safety, important though it is. Behind closed doors, with minimum transparency, negotiators are eking out a deal that would change both who has a say in making Europe’s laws and which court has the final ruling. T&E’s job since day one of TTIP has been to force negotiators to come clean about what’s really at stake.

Negotiators are quite happy to dismiss citizens’ concerns about harmonising Europe’s food and product standards with talk of jobs, growth and investment. But they are having a harder time doing so on the deal’s ‘investor protection’ clauses. So-called ‘Investor-State Dispute Settlement’ (ISDS) awards foreign businesses the special privilege of bypassing national court systems and suing governments directly, in costly special private arbitration panels, over measures that can jeopardise future profits. It is a mystery to civil society why Europe’s citizens should pay for foreign firms’ investment risks; plenty of insurers earn a living doing exactly this. And typically the lawsuits are over laws designed to protect the public, as is the case with the TransCanada Corporation which is suing the US government for $15 billion. It’s doing so under the ISDS clause of the NAFTA trade deal, following rejection of the Keystone XL tar sands pipeline because of its climate impact.

145,000 responses

Promisingly, in January 2015 Trade Commissioner Cecilia Malmström was forced to admit that almost all of the 145,000 public responses to an ISDS consultation – then a record for an EU consultation – wanted it scrapped from the Europe-America deal. But November brought frustration when the Commission drew an entirely different conclusion: that ISDS should stay and be rebranded as an ‘Investor Court System’. Instead of requiring foreign companies to exhaust national legal avenues first, as citizens must, they could choose between either a national court or the Investment Court System. Investors will logically choose the route likely to lead to the highest financial settlement. Meanwhile, the court’s establishment and running would be paid for by taxpayers.

A meek European Parliament had earlier indicated that it would be OK with such a rebranding dressed up as ‘reform’. But it’s not over yet; in 2016 MEPs will vote on CETA, a deal with Canada and the first one to include the Investment Court System.

"The EU's ‘new’ investment court system ... is a mere rebranding exercise of ISDS"

– Cecile Toubeau, better trade and regulation manager
Reuters, 16 September 2015

Laundry list

Meanwhile, behind the closed doors of the World Trade Organisation, the EU and 16 countries around the world were trying to seal a supposedly green deal that would lower tariffs on environmentally-friendly products. T&E failed to see a green side to dirty anthracite coal, airplane engines, parts for the nuclear energy industry and even cancer-causing asbestos which all made the list of 120 ‘green’ products. T&E leaked the countries’ entire laundry list of goods they’re keen to export. Talks are still ongoing but negotiators have meanwhile taken some of the most egregious items out.

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