On Tuesday 21 January 2013 the European Commission announced the launch of a broad public consultation on the investment dispute settlement mechanism of the Transatlantic Trade and Investment Partnership (TTIP). This element of the European-American negotiations is one of the most controversial issues for civil society actors criticizing TTIP. The consultation will be made publicly available early March and stakeholders will have the opportunity to react during three months. This surprising event opens the gate to a broader debate on the TTIP and is the symptom of the Commission’s new policy towards trade agreements, as EU authorities from DG TRADE are now willing to adopt a more inclusive attitude towards civil society actors.
The TTIP is a trade agreement currently negotiated between EU and US authorities. The aim is to remove trade barriers on goods, services and non-tariffs barriers such as standardization procedures. It would create the world’s biggest free trade agreement and it is presented as a tremendous opportunity for the EU economy. According to the Commission estimations, the deal would annually bring the EU Member States 119 billion EUR of benefit.
Since the beginning of the negotiations in mid-2013, the auspicious have not been the most favourable. The first round of negotiations, held in July 2013, took place at the heart of the storm of the American National Security Agency spying scandal revealed by Edward Snowden. France went to the forefront and asked for the talks to be delayed until European authorities (both EU and national) have received all guarantees and explanations on US espionage of allies. Even though the French claim has not been followed, it is still a notion of the general climate in which the negotiations take place.
However, it would be misleading to conclude that the two visions of trade are contradictive. Indeed, even if US Secretary of State John Kerry states that “[t]he Transatlantic Trade Partnership is really separate from and different from any other issues people may have on their minds. This is about jobs. It’s about the economy”, it cannot be concluded that the US vision is ‚trade-only’ while the EU would adopt a more ‚politically engaged’ one. The US were indeed the very first to conceive trade as a mean to achieve political goals. Already in the early days of the American revolutions against the United Kingdom, the US Congress established a prohibition of all imports of goods from the UK territory. The EU, through its economic and political conditionality policy, is on the same path. Kerry’s statement is therefore only a short-term and political argument, as it is clear that the negotiations are taking place in an ever closer political environment and are therefore influenced by non-trade issues.
The main striking point is the investor-to-state dispute settlement (ISDS). According to EU business, the provision “allows a foreign investor to bring a case directly against the country in which they have invested before an arbitration tribunal to seek redress”. This vision of judicial rights of companies is not equally shared among European countries. Germany, for example, is against such system as it would rather benefit big companies. Many unions and environmental NGOs raised their voice against the mechanism, as they think it would allow a company to challenge a state policy before a court in addition to official states’ complains. The writings of Georges Monbiot, columnist in „The Guardian”, help to shed a new light on the TTIP. In a recent comment wisely entitled: The lies behind this Transatlantic trade deal published in December 2013, Monbiot warned against what he called a “toxic mechanism”. He cited examples in which such clause have already been used: mining, bank or nuclear companies. The latter sued the German government when it decided to shift from nuclear power to others means of production. In another article, also strongly vindictive, the same columnist quotes a judge who already sat in a panel on such case: “[w]hen I wake up at night and think about arbitration, it never ceases to amaze me that sovereign states have agreed to investment arbitration at all… Three private individuals are entrusted with the power to review, without any restriction or appeal procedure, all actions of the government, all decisions of the courts, and all laws and regulations emanating from parliament”. But there is no unanimity against TTIP, in the same columns of The Guardian another journalist took the defence of the treaty.
This public debate is in part fostered by the Commission. It is conducting a difficult exercise. Civil society actors dealing with environmental and social issues are concerned since the very beginning about signature of the agreement, as according to them it may threaten EU policy independence and make it more conform to US goals. The „EU Observer” has recently reported that the Commission’s services are involved in a positive communication campaign on TTIP. The last ambitious treaty negotiated with the US was ACTA, which was watered down by the European Parliament. Stakes are therefore high for the Commission that it has to be more transparent if it wants to avoid another failure. The public consultation on the ISDS is the first step of a shift in the Commission’s strategy towards civil society actors.
It has to be nonetheless recognised that the on-going negotiations are taking place behind closed doors. The United States refused indeed that the documents can circulate to other persons than the one accredited in the Commission. It means that neither the European Parliament, nor national government have access to deals being negotiated. There is therefore a huge black box, but the Commission is already taking steps to reassure public opinion, national governments and MEPs. The first is the public consultation. The second, the most recent one and even more surprising than the fist is the announcement of the nomination of an “expert group” to advise European negotiators on the issue. The group will be composed by fourteen persons and aims at representing different interests, including social and environmental ones. The list of the persons nominated is available online.
In conclusion, the TTIP is a salient issue on the European agenda. It reminds us that the procedure on negotiation of trade treaties has been modified by the Lisbon Treaty. After the failure of ACTA, the Commission authorities have learned that they are not anymore the only players on the field.
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