First, the European Commission and the US want to include a clause for “investor-state dispute settlement”. This would allow businesses to bypass regular court systems and sue governments directly, in special arbitration panels, for anything they claim not to be “fair and equitable” treatment – typically legislation designed to deliver public benefits. Such panels are deeply flawed. The claimant – business – has a 50 per cent say in who presides over them, and the panels’ decisions are not bound by legal precedent. Arbitration is fine for settling contract disputes; it should not get to judge the validity of laws.
Second, the EU and the US also want to set up a new (of course, unelected) body with the power to scrutinise all legislation that one of the two blocs might initiate.
Both intended moves strongly discourage governments to act in the public interest. Instead, they transfer power away from elected governments, towards business and anonymous arbitrators and regulators. At a time when both the US federal government and EU institutions are struggling with their own democratic legitimacy, it may not be the wisest of ideas to give oversight away to bodies even further removed from regular citizens. Casually dismissing these issues as “hostile advocacy” is a recipe for a heated and protracted debate.
Elected governments should be able to protect their people and the environment, even if that occasionally upsets certain parts of business. That is not antitrade. It is common sense.
Jos Dings and Pieter de Pous, members of the EU’s TTIP advisory group of experts.