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TAFTA/TTIP: trade,
Internet and democracy

glyn moody

 

 
trade agreements


are numerous


ACS, AFTA, AFTZ, ALBA, APEC, APTA,
BIMSTEC, CEFTA, CEN-SAD, CISFTA,
COMESA, CSN, DR-CAFTA, ECCAS,
ECOWAS, EU-MEFTA, FTAA, GAFTA,
GCC, IGAD, MERCOSUR, NAFTA,
PACER, PICTA, RCEP, SAFTA, SCO,
SADC, SICA, UMA



are boring



are invisible
 

 
ACTA






most Europeans couldn't even name
a trade agreement before 2012
in 2012, millions of Europeans
became aware of one in particular
Anti-Counterfeiting Trade
Agreement (ACTA)


 

EU, Australia, Canada, Japan,
Mexico, Morocco, New Zealand,
Singapore, South Korea, & the
United States
 
European protests




EU-wide street protests organised
for 11 February
organised online





Netzpolitik.org
La Quadrature du Net

massive numbers took to the
streets


 

Germany (100,000), Denmark
(15,000), Austria (10,000),
Bulgaria (7,000), Romania (5,000),
Hungary (1,000)
 
ACTA's problems


civil damages




criminal damages






"any legitimate measure of value the right
holder submits...which may include
suggested retail price"

"to be applied at least in cases of ...
copyright or related rights piracy on
commercial scale"
"for direct or indirect economic or
commercial advantage"

digital chapter


 

"promote cooperative efforts within the
business community"
 
defeat for ACTA








4 July: plenary vote on ACTA
European Parliament voted down
ACTA by 478 votes to 39, with 165
abstentions
remarkable majority
remarkable rejection of
international trade agreement
negotiated by European Commission

 

 
victory for democracy


David Martin, ACTA Rapporteur:




"for the first time the European
Parliament has used the powers
granted by the Lisbon Treaty to
reject an International Trade
Agreement."

Martin Schulz, EP President:


 

"demonstrated the existence of
European public opinion that
transcends national borders."

 
TAFTA/TTIP


TAFTA/TTIP is not (just) a trade
agreement: mostly about "nontariff" barriers




€119 billion GDP increase




dismantling both tariff & nontariff

€24 billion GDP increase




health, safety, employment,
environmental regulations

dismantling tariff barriers

figures relate to 2027
 

 
TAFTA/TTIP and ACTA


Karel de Gucht






"ACTA, one of the nails in my
coffin. I’m not going to reopen
that discussion. Really, I mean, I
am not a masochist. I’m not going
to do this by the back door"

EU negotiation directives for
intellectual monopolies: "shall
not include provisions on
criminal sanctions"
what about civil ones?
 

 
EU-Singapore FTA








initialled 20 September 2013
still to be agreed upon by the
European Commission and the
Council of Ministers
ratified by the European
Parliament
has several sections that are cut
and paste from ACTA

 

 
ACTA backdoor?


EU-Singapore FTA 11.44.2 Damages:
"any legitimate measure of value
the right holder submits...which
may include suggested retail
price"






ACTA 9.1 Damages

so if European Parliament
ratifies this FTA, easy to put it
into TAFTA/TTIP
maybe other ACTA elements

 

digital chapter
 
ISDS






also included in EU negotiation
directives is strong call for
"investor-state dispute
settlement" (ISDS) measures
increasingly common element of
trade agrements
even more obscure and unknown –
and not just among general public

 

 
ISDS facts (1)






basic idea is to protect
investors from arbitrary
government actions or weak court
systems in developing countries
achieved by allowing companies to
take action directly against
governments
using specialist external
tribunals

 

 
ISDS facts (2)






tribunal generally 3 lawyers, who
also represents companies before
similar tribunals
no conflict of interest rules
no limits on amount of award
against a government




last year saw biggest ever award –
$1.77 billion to Occidental,
against Ecuador

very limited appeal rights
 

 
ISDS facts (3)


United Nations Conference on
Trade and Development (UNCTAD)
2012 ISDS Report:



total ISDS cases so far –



countries involved – 95



EU countries involved – 15



most cases from US companies



 

new cases last year –

70% in favour of companies

 

58
518
ISDS facts (4)


ISDS cases:




Australia – adding warnings to
cigarette packs
Canada – banning pesticide;
moratorium on fracking



El Salvador – refusing mine permit



Germany – nuclear power phase-out





 

Mexico – refusing to allow toxic
waste plant
Uruguay – adding warnings to
cigarette packs
 
Eli Lilly vs Canada (1)




Canadian courts invalidated
patents on two Eli Lilly drugs
in November 2012, Eli Lilly sued
Canada for $100 million




invoking ISDS in North American
Free Trade Agreement (NAFTA)

in July 2013, increased claim to
$500 million for the two drugs
patents that were denied

 

 
Eli Lilly vs Canada (2)


Eli Lilly claims Canada has not
met "minimum standards of
treatment"






patent maximalism in US

as a result, Eli Lilly's
"expectation of profit" was
"unjustly" upset by courts'
decisions
this makes it a victim of
"indirect expropriation"
 

 
monopolies as investments




ISDS originally applied to
tangible items such as buildings,
machinery etc., designed to
prevent expropriation by foreign
governments
Eli Lilly case now seeks to
appliy ISDS to intellectual
monopolies and tries to define
patents as investments, and
therefore protected from
"expropriation" by withdrawal
 

 
ISDS and EU




German proposal to ban software
patents (again)
calls to widen copyright
limitations & exceptions in EU






text & data mining

calls for "fair use" provision in
UK
"failure" to update 2004
directive on enforcing
intellectual monopolies (IPRED)
 

 
TAFTA/TTIP:ACTA backdoor 2?








not by the back door *directly*,
but *indirectly*
allows companies to challenge
laws or court decisions on
intellectual monopolies that harm
their "expectation of profit"
challenge Internet laws
to avoid that, EU might push for
ACTA-like measures
 

 
back-door ACTA+






not only could ISDS bring in
ACTA's worst ideas
also allows any standards and
regulations not levelled down by
non-tariff removal to be
challenged
so claims that TAFTA/TTIP will
not affect EU's regulatory regime
are misleading if ISDS is part of
it
 

 
TAFTA/TTIP's other problem






fight against ACTA was in part a
revolt against secret deal-making
that threatened ordinary people's
use of the Internet
like ACTA, TAFTA/TTIP will be
conducted behind closed doors,
with minimal information about
what is happening
new fight for transparency

 

 
new surprising ally (NSA)








NSA is spying on European Union
embassies in US
NSA is spying on EU companies
thanks to zero-day exploits from
Microsoft and others
NSA is spying on vast swathes of
the Internet
NSA is doubtless spying on EU
officials in many other ways
 

 
TAFTA/TTIP is not secret








US will have copies of *all* EU
negotiating documents
China and Russia will also have
access to *all* EU negotiating
documents
most large companies and industry
associations have access
only one group doesn't


 

the public
 
negotiating in public




de Gucht says: "you cannot
negotiate openly"
simply not true: WIPO treaty for
the blind negotiated publicly



draft documents
structured stakeholder input, with
reports and summaries




 

live webcasts of negotiations
model of transparency

 
transparency = democracy








if people know what is being
negotiated in their name, they
can analyse and understand the
real implications, not the spin
express their views to their
representatives
democracy requires transparency
secret negotiations are
profoundly anti-democratic
 

 
going public, going forward








trade agreements are complex and
obscure
TAFTA/TTIP is even more complex
and obscure
explaining all the issues to the
public impossible task
need to concentrate on a few key
issues, and the corresponding
demands
 

 
ISDS out






unnecessary: ISDS is designed for
situations where governments are
capricious and legal frameworks
are weak
anti-social: allows health and
safety regulations to be ignored
anti-democratic: allows national
and EU legislation to be
overruled by unelected, secret
tribunals, in favour of foreign
corporations
 

 
transparency in








we need *all tabled EU documents*
to be made public immediately
need to push for full
transparency for TAFTA/TTIP – and
every trade agreement
before the Internet, that would
have been simply impossible
today, it *is* possible, and is
thus indispensable for true
democracy in the digital age
 

 
TAFTA/TTIP: trade,
Internet and democracy
glyn.moody@gmail.com
@glynmoody on Twitter/identi.ca
opendotdotdot.blogspot.com

 

 

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Glyn Moody - TAFTA/TTIP - trade, Internet and democracy

  • 1. TAFTA/TTIP: trade, Internet and democracy glyn moody    
  • 2. trade agreements  are numerous  ACS, AFTA, AFTZ, ALBA, APEC, APTA, BIMSTEC, CEFTA, CEN-SAD, CISFTA, COMESA, CSN, DR-CAFTA, ECCAS, ECOWAS, EU-MEFTA, FTAA, GAFTA, GCC, IGAD, MERCOSUR, NAFTA, PACER, PICTA, RCEP, SAFTA, SCO, SADC, SICA, UMA  are boring  are invisible    
  • 3. ACTA    most Europeans couldn't even name a trade agreement before 2012 in 2012, millions of Europeans became aware of one in particular Anti-Counterfeiting Trade Agreement (ACTA)    EU, Australia, Canada, Japan, Mexico, Morocco, New Zealand, Singapore, South Korea, & the United States  
  • 4. European protests   EU-wide street protests organised for 11 February organised online    Netzpolitik.org La Quadrature du Net massive numbers took to the streets    Germany (100,000), Denmark (15,000), Austria (10,000), Bulgaria (7,000), Romania (5,000), Hungary (1,000)  
  • 5. ACTA's problems  civil damages   criminal damages    "any legitimate measure of value the right holder submits...which may include suggested retail price" "to be applied at least in cases of ... copyright or related rights piracy on commercial scale" "for direct or indirect economic or commercial advantage" digital chapter    "promote cooperative efforts within the business community"  
  • 6. defeat for ACTA     4 July: plenary vote on ACTA European Parliament voted down ACTA by 478 votes to 39, with 165 abstentions remarkable majority remarkable rejection of international trade agreement negotiated by European Commission    
  • 7. victory for democracy  David Martin, ACTA Rapporteur:   "for the first time the European Parliament has used the powers granted by the Lisbon Treaty to reject an International Trade Agreement." Martin Schulz, EP President:    "demonstrated the existence of European public opinion that transcends national borders."  
  • 8. TAFTA/TTIP  TAFTA/TTIP is not (just) a trade agreement: mostly about "nontariff" barriers   €119 billion GDP increase   dismantling both tariff & nontariff €24 billion GDP increase   health, safety, employment, environmental regulations dismantling tariff barriers figures relate to 2027    
  • 9. TAFTA/TTIP and ACTA  Karel de Gucht    "ACTA, one of the nails in my coffin. I’m not going to reopen that discussion. Really, I mean, I am not a masochist. I’m not going to do this by the back door" EU negotiation directives for intellectual monopolies: "shall not include provisions on criminal sanctions" what about civil ones?    
  • 10. EU-Singapore FTA     initialled 20 September 2013 still to be agreed upon by the European Commission and the Council of Ministers ratified by the European Parliament has several sections that are cut and paste from ACTA    
  • 11. ACTA backdoor?  EU-Singapore FTA 11.44.2 Damages: "any legitimate measure of value the right holder submits...which may include suggested retail price"    ACTA 9.1 Damages so if European Parliament ratifies this FTA, easy to put it into TAFTA/TTIP maybe other ACTA elements    digital chapter  
  • 12. ISDS    also included in EU negotiation directives is strong call for "investor-state dispute settlement" (ISDS) measures increasingly common element of trade agrements even more obscure and unknown – and not just among general public    
  • 13. ISDS facts (1)    basic idea is to protect investors from arbitrary government actions or weak court systems in developing countries achieved by allowing companies to take action directly against governments using specialist external tribunals    
  • 14. ISDS facts (2)    tribunal generally 3 lawyers, who also represents companies before similar tribunals no conflict of interest rules no limits on amount of award against a government   last year saw biggest ever award – $1.77 billion to Occidental, against Ecuador very limited appeal rights    
  • 15. ISDS facts (3)  United Nations Conference on Trade and Development (UNCTAD) 2012 ISDS Report:   total ISDS cases so far –  countries involved – 95  EU countries involved – 15  most cases from US companies    new cases last year – 70% in favour of companies   58 518
  • 16. ISDS facts (4)  ISDS cases:   Australia – adding warnings to cigarette packs Canada – banning pesticide; moratorium on fracking  El Salvador – refusing mine permit  Germany – nuclear power phase-out     Mexico – refusing to allow toxic waste plant Uruguay – adding warnings to cigarette packs  
  • 17. Eli Lilly vs Canada (1)   Canadian courts invalidated patents on two Eli Lilly drugs in November 2012, Eli Lilly sued Canada for $100 million   invoking ISDS in North American Free Trade Agreement (NAFTA) in July 2013, increased claim to $500 million for the two drugs patents that were denied    
  • 18. Eli Lilly vs Canada (2)  Eli Lilly claims Canada has not met "minimum standards of treatment"    patent maximalism in US as a result, Eli Lilly's "expectation of profit" was "unjustly" upset by courts' decisions this makes it a victim of "indirect expropriation"    
  • 19. monopolies as investments   ISDS originally applied to tangible items such as buildings, machinery etc., designed to prevent expropriation by foreign governments Eli Lilly case now seeks to appliy ISDS to intellectual monopolies and tries to define patents as investments, and therefore protected from "expropriation" by withdrawal    
  • 20. ISDS and EU   German proposal to ban software patents (again) calls to widen copyright limitations & exceptions in EU    text & data mining calls for "fair use" provision in UK "failure" to update 2004 directive on enforcing intellectual monopolies (IPRED)    
  • 21. TAFTA/TTIP:ACTA backdoor 2?     not by the back door *directly*, but *indirectly* allows companies to challenge laws or court decisions on intellectual monopolies that harm their "expectation of profit" challenge Internet laws to avoid that, EU might push for ACTA-like measures    
  • 22. back-door ACTA+    not only could ISDS bring in ACTA's worst ideas also allows any standards and regulations not levelled down by non-tariff removal to be challenged so claims that TAFTA/TTIP will not affect EU's regulatory regime are misleading if ISDS is part of it    
  • 23. TAFTA/TTIP's other problem    fight against ACTA was in part a revolt against secret deal-making that threatened ordinary people's use of the Internet like ACTA, TAFTA/TTIP will be conducted behind closed doors, with minimal information about what is happening new fight for transparency    
  • 24. new surprising ally (NSA)     NSA is spying on European Union embassies in US NSA is spying on EU companies thanks to zero-day exploits from Microsoft and others NSA is spying on vast swathes of the Internet NSA is doubtless spying on EU officials in many other ways    
  • 25. TAFTA/TTIP is not secret     US will have copies of *all* EU negotiating documents China and Russia will also have access to *all* EU negotiating documents most large companies and industry associations have access only one group doesn't    the public  
  • 26. negotiating in public   de Gucht says: "you cannot negotiate openly" simply not true: WIPO treaty for the blind negotiated publicly   draft documents structured stakeholder input, with reports and summaries     live webcasts of negotiations model of transparency  
  • 27. transparency = democracy     if people know what is being negotiated in their name, they can analyse and understand the real implications, not the spin express their views to their representatives democracy requires transparency secret negotiations are profoundly anti-democratic    
  • 28. going public, going forward     trade agreements are complex and obscure TAFTA/TTIP is even more complex and obscure explaining all the issues to the public impossible task need to concentrate on a few key issues, and the corresponding demands    
  • 29. ISDS out    unnecessary: ISDS is designed for situations where governments are capricious and legal frameworks are weak anti-social: allows health and safety regulations to be ignored anti-democratic: allows national and EU legislation to be overruled by unelected, secret tribunals, in favour of foreign corporations    
  • 30. transparency in     we need *all tabled EU documents* to be made public immediately need to push for full transparency for TAFTA/TTIP – and every trade agreement before the Internet, that would have been simply impossible today, it *is* possible, and is thus indispensable for true democracy in the digital age    
  • 31. TAFTA/TTIP: trade, Internet and democracy glyn.moody@gmail.com @glynmoody on Twitter/identi.ca opendotdotdot.blogspot.com