Russia TodayPyrrhic victory for whistleblowers on Transatlantic Trade Agreement
Currently a Research Associate at the INSYTE Group, Dr. Roslyn Fuller has previously lectured at Trinity College and the National University of Ireland. She can be reached at email@example.com
Published time: April 02, 2014 10:13
Unbeknownst to the wider world, two enormous trade deals have been in the works for the past several years.
Shrouded in secrecy, talks on these deals, which will cover over half of world trade in goods and services and which include such sensitive topics as intellectual property rights, flew under just about everyone’s radar.
That is until WikiLeaks revealed part of the first deal, the Trans-Pacific Partnership, late last year. Their example was quickly followed by three German MEPs (Ska Keller, Rebecca Harms and Sven Giegold) who leaked the EU’s position paper on the second deal, the Transatlantic Trade and Investment Partnership last month.
Keeping these two agreements apart, not to mention reconciling them with the rest of the world trade regime, can be difficult. The Transatlantic Trade and Investment Partnership is being negotiated between the United States, the European Union and its member states, and is usually abbreviated ‘TTIP’, although it’s sometimes also called ‘TAFTA’ (for Transatlantic Free Trade Agreement). Negotiations started in 2013, although pre-negotiation talks have probably been ongoing for much longer.
The Trans-Pacific Partnership is being negotiated between nations of the Pacific Rim: Canada, the US, Japan, Australia, New Zealand, Chile, Vietnam, Peru, Mexico, Singapore, South Korea, Malaysia, Taiwan and Brunei. Negotiations started in 2010, and this agreement is usually abbreviated ‘TTP’.
What is the purpose of these agreements? To lower barriers to trade, a process that usually involves getting rid of tariffs and harmonizing industry standards. That can include anything from safety standards on cars, to agreeing on what counts as a sardine, to toughening up copyright and patent protection.
Now, some of you might remember that we already have an agreement that is supposed to deal with these things: the World Trade Organization Agreement which entered into force in 1995. To put it mildly, the World Trade Organization has not proven terribly popular. In fact, the organization has mainly been used as a vehicle to force open vulnerable economies and make the rich richer and the poor poorer around the world. Thus, unsurprisingly, talks on further liberalization measures within the WTO’s global framework have stalled.
The Doha Round of negotiations has been ongoing since 2001 with no end in sight, mainly due to sharp disagreements on agriculture and intellectual property between developed and developing countries.
Hence, the confusingly abbreviated TTIP and TTP, which are being negotiated by more exclusive sets of countries whose leaders happen to (mainly) agree that it would be a good idea to go much further down the trade liberalization rabbit hole than even the hugely unpopular WTO has. One of the most concerning ways they want to do this is by seeking to institutionalize what is known as investor-state dispute settlement (ISDS) within the agreements’ ramework.
Suing in private
Under the WTO rules, states sue other states. This is pretty standard in international law, where if an individual or entity suffers injury from another state, they have to persuade their home state to take the case to court on their behalf through a legal custom known as exercising diplomatic protection. It means that ultimately an individual’s interests on the international plane are subordinated to his state’s collective interests.
However, there is an alternative method of settling international disputes and that is state-to-company private arbitration, which tends to occur on an ad hoc basis in more limited settings. For example, when a state and a company want to do business together, say in developing an oilfield, they often draw up a contract. If a country breaks this contract (which happens from time to time, especially when there has been a change of government), the private company seeks to be compensated for damages by pursuing an arbitration settlement before what is basically a voluntary mini-court.
This is a form of investor-state dispute settlement (the term ‘investor’ is understood very widely under international law), but it is limited to the contract’s subject matter, so the consequences of entering into the contract are easier for everyone to foresee.
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