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

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the trade agreement currently being negotiated between the EU and US has major implications for the Internet and democracy, largely because of the likely inclusion of investor-state dispute settlement …

the trade agreement currently being negotiated between the EU and US has major implications for the Internet and democracy, largely because of the likely inclusion of investor-state dispute settlement (ISDS), which allows companies to sue nations for alleged loss of future profits. The net effect of this will be to place companies above national laws, and to create a chilling effect on legislation in the public interest.

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  • 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