House Votes To Change Law Due To Trade Agreement, While Insisting That Trade Agreements Don't Change Laws

from the do-they-even-understand dept

Two weeks ago, the House Agriculture Committee voted 38-6 to repeal country-of-origin-labeling. (COOL), and now it's the full House's turn. In a 300-131 vote yesterday the "country of Origin Labeling Amendments Act" (HR 2393) passed with the support of a significant number of Democrats as well as the majority of Republicans.

The bill's prompting and passage came after the World Trade Organisation ruled in favor of Canadian farmers, who sued claiming it was "discriminatory" and thus in violation of Free Trade Agreements. The problem? Cattle bought from abroad would have to be segregated from domestic cattle, increasing costs and making imports less desirable.

With Fast Track coming up for a vote -- perhaps even today -- it's curious to see this snippet in the Associated Press report on the vote by the Speaker of the House:

House Speaker John Boehner, R-Ohio, said after the vote that the last thing American farmers need "is for Congress to sit idly by as international bureaucrats seek to punish them through retaliatory trade policies that could devastate agriculture as well as other industries."

That is, of course, the same John Boehner that has been encouraging the President to get more support for Fast Track, in order to pass more of these "Free Trade" deals that impose more international bureaucrats and will almost certainly lead to more disputes that "require" Congress to "not sit idly by."

Meanwhile, remember what President Obama said at the Nike Plant just a few weeks ago:

[TPP] critics warn that parts of this deal would undermine American regulation -- food safety, worker safety, even financial regulations. They're making this stuff up. (Applause.) This is just not true. No trade agreement is going to force us to change our laws.

Less than one month on, and we have exactly what he claimed 'is not true' happening. A trade agreement forcing a law change, and having what some would claim is an impact on food safety. And it's happening a day or so before the House is voting to create even more such situations while claiming that it won't do this. Do they not even recognize what it is they're voting on?

Filed Under: congress, corporate sovereignty, fast track, house, isds, john boehner, nafta, tpp, trade agreements, trade promotion authority, ttip

Analysis Shows European Commission's 'Improved' Corporate Sovereignty Model Would Actually Make Things Much Worse

from the institutionalized-regulatory-chill dept

Last year, the controversy around corporate sovereignty was such that the European Commission felt obliged to slam the brakes on this particular part of the TAFTA/TTIP negotiations in order to try to defuse the situation. The ostensible reason for that unexpected pause was to hold a public consultation on the "investor-state dispute settlement" (ISDS) mechanism. It turned out to be of a very limited kind. Rather than asking whether people wanted corporate tribunals passing judgment on their laws and regulations, the European Commission instead presented the ISDS chapter of another agreement, that with Canada, and posed some rather technical questions about the subtle changes it incorporated.

The Comprehensive Economic and Trade Agreement (CETA) is nominally finished, and is currently undergoing what is known as "legal scrubbing", during which it is checked and polished for final ratification by Canada and the EU, although that's looking much more problematic now than it did a year ago. In the consultation, CETA's ISDS chapter was offered as a kind of template for TAFTA/TTIP. The Commission's argument was that it incorporated many improvements over traditional corporate sovereignty chapters -- which even the EU admitted were flawed -- and could be tweaked further to produce an even better solution for the US-EU negotiations.

Techdirt has already written about one detailed analysis of the claimed improvements in CETA's ISDS that found them seriously wanting. Confirming that view is a new paper from Gus Van Harten, who is Associate Professor of Law at York University in Toronto, Canada. He has taken advantage of the fact that we now have two recent EU free trade agreements with corporate sovereignty chapters: the one with Canada, plus a less well-known deal with Singapore. Van Harten's paper looks at both of them in order to explore to what extent the European Commission's new model for ISDS represents an advance over previous versions, and is therefore something that might usefully form the basis for a possible corporate sovereignty chapter in TTIP. Here's his concluding summary:

The CETA and [EU-Singapore] FTA demonstrate the Commission's willingness to accept ISDS -- based on the model long pushed by Western European countries for developing and transition countries -- that is flawed due to its lack of independence, fairness, and balance. The Commission's approach to ISDS, as represented by the CETA and FTA, does not ensure basic safeguards of judicial independence and procedural fairness. It does not affirm clearly the state's right to regulate. It does not introduce actionable responsibilities for foreign investors or even require foreign investors to resort to domestic courts unless they have been shown not to offer justice. The only notable improvement in the CETA and FTA approach to ISDS, compared to the historical Western European model, is its greater provision for openness.

…

By including ISDS in the CETA and FTA, as forerunners of a TTIP, the Commission would make the problems of ISDS much worse. The Commission aims to expand and lock in a deeply flawed system of dispute resolution -- premised on the special privileging and subsidizing of large companies and very wealthy individuals, with lucrative returns also for ISDS lawyers and arbitrators -- so that it covers most of the world economy.

Although that is pretty unequivocal, it's worth reading the whole paper to understand why Van Harten is so dismissive. It contains many insights along the way, including the following astonishing fact:

The CETA's provision on the arbitrators' power to award damages to foreign investors includes a clause that I have not seen in any investment treaty. The clause says that, in calculating monetary damages, the arbitrators shall reduce the damages to account for "any... repeal or modification of the measure". Thus, the CETA appears to establish an incentive for states to change their decisions in order to appease a foreign investor (who has brought an ISDS claim) as a means to limit the state's exposure to potentially massive liability at the hands of the arbitrators. Put differently, this clause in the CETA appears to institutionalize the ISDS dynamic of "regulatory chill".

So much for the idea that corporate sovereignty "does not and cannot require countries to change any law or regulation": not only does the CETA text admit it can happen, it even provides a strong incentive to do so.

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Filed Under: canada, ceta, corporate sovereignty, eu, isds, tafta, tpp, ttip

Even Before TPP And TTIP, US Already Being Forced To Change Laws By Trade Agreements

from the not-so-cool dept

Recently, we looked at how corporate sovereignty provisions undermine democracy by irrevocably binding future governments. The analysis was framed in terms of the UK's situation, but applied more generally to any country that signs up to investor-state dispute (ISDS) mechanisms in trade agreements. In particular, it applies to the US. And yet in President Obama's (in)famous TPP speech at Nike a few weeks ago -- the one where he claimed some of his "dearest friends" were wrong -- he said the following:

[TPP] critics warn that parts of this deal would undermine American regulation -- food safety, worker safety, even financial regulations. They're making this stuff up. (Applause.) This is just not true. No trade agreement is going to force us to change our laws.

But as a post on the Institute for Agriculture and Trade Policy site points out, just 12 days after Obama made that speech, this happened:

The House Agriculture Committee voted 38-6 to repeal in its entirety country-of-origin-labeling (COOL) for beef, pork and poultry. The House vote came in response to a May 18 ruling by the World Trade Organization (WTO) that the U.S. had violated global trade rules by requiring supermarket labels on beef and pork to indicate where livestock was born, raised and slaughtered.

…

Congress has not repealed it because of overwhelming public support for COOL -- 90% of Americans support such a measure, according to Consumer Reports. Needless to say, civil society including farm, ranch, consumer, labor and other groups, won't sit quietly. But the fact is that the U.S. has to change COOL or face trade sanctions (though how significant is unclear). The USTR has already indicated it will encourage Congress to revise COOL.

As that makes clear, alongside the fact that it is quite possible that the US will indeed modify its laws here because of a trade agreement, this would be happening even though the laws in question enjoy huge support among the US public. Which shows that trade agreements can not only force laws to be changed, but can do so with absolutely no regard to what the people in whose name they are supposedly negotiated, actually want.

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Filed Under: binding, international obligations, laws, regulations, tpp, trade agreements, ttip, wto

How Corporate Sovereignty Undermines Democracy By Irrevocably Binding Future Governments

from the how-is-that-even-possible? dept

Techdirt has been at the forefront of pointing out the dangers of including investor-state dispute settlement (ISDS) in so-called trade agreements. Indeed, we even helped come up with a new term -- corporate sovereignty -- to make clear that ISDS is really about placing corporations on the same level as entire nations, and giving them a unique power to sue a country for alleged harms before special tribunals. But there's an additional aspect to this, which is explored in an insightful article by Sam Fowles on The Conversation.

He points out that although we don't know in detail what the US-EU TAFTA/TTIP agreement will contain, we do have the text for the one between Canada and the EU, the Comprehensive Economic and Trade Agreement (pdf), known as CETA. The European Commission has said many times that it aims to build on the corporate sovereignty chapter in CETA when it comes to negotiating TTIP. One feature of ISDS in CETA is the following:

In the event that the present Agreement is terminated, the provisions of [Chapter X Investment] shall continue to be effective for a further period of 20 years from that date in respect of investments made before the date of termination of the present Agreement.

That is, even if a party pulls out of CETA, it will still be bound by the corporate sovereignty provisions for another 20 years, whether it likes it or not. Since we know that the US model investment treaty (pdf) also requires parties to continue allowing ISDS claims for ten years, it seems likely that TAFTA/TTIP, if it includes corporate sovereignty, will also have such a clause, for at least ten years, maybe more. Fowles explains why that is a problem -- he talks about the UK Parliament, but it applies equally to the US:

Parliament represents the will of the people. Therefore it can make or unmake any law it wants. But there’s a caveat: parliament can’t make a law that would bind future parliaments. To do so would be undemocratic. The laws of one generation are often inappropriate for the next. Parliament must embody the will of the people at the time. When two ordinary laws conflict, the courts will always apply the one passed most recently.

But the 10/20-year extension of ISDS interferes with that. It says that whatever the views of government in power, it must still respect the ISDS chapter signed by one of its predecessors. One implication is that for a decade or two, any major policy changes could be subject to billion-dollar cases before corporate sovereignty tribunals -- a strong disincentive to bring them in, whatever the public might want. The implication is clear. As Fowles writes:

If democracy is to remain the fundamental tenet of our constitution then TTIP must not be ratified. At the very least we must derogate from the 20-year clause. Living under a government you don’t like is the risk you take in a democracy, but being forced to live by rules agreed 20 years ago is fundamentally undemocratic.

As Techdirt explained last year, Canada has already signed a trade agreement with China that will take precedence over Canada's constitution for 31 years. Let's hope the US and EU aren't foolish enough to follow suit by allowing corporate sovereignty to reign over them even after TAFTA/TTIP is terminated.

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Filed Under: binding, ceta, corporate sovereignty, future, governments, isds, tafta, tpp, trade agreements, ttip, us, ustr

TPP Moves Forward In Senate With Fast Track; On To The House

from the but-of-course dept

As was widely expected after last week's vote, the Senate has now voted in favor of fast track for trade agreements (officially "Trade Promotion Authority") after Republican Senators convinced enough of their Democratic counterparts to give up their Constitutional authority in regulating international commerce (yes, you read that right: Republicans who keep complaining about the President taking too much power and not obeying the Constitution, just voted explicitly to give up Constitutional authority to the President of the other party, while most Democrats declined to do so).

Also as expected, all attempts to add amendments to the TPP -- including Elizabeth Warrens' plan to strip corporate sovereignty ISDS provisions -- failed. Any of the amendments almost certainly would have sunk the fast track bill in the House, so they were all basically poison pills designed to kill fast track. Still, it's disappointing that Congress is favoring corporate sovereignty, when it's pretty clear that it's a provision that is going to come back and bite us badly.

Either way, the fight will now move on to the House, where it's not yet clear if there are enough votes. But, don't be surprised to see a full court press to convince another dozen or so Democrats to join with Republicans in coughing up Congress' Constitutional authority over international trade.

Filed Under: fast track, house, senate, tafta, tpa, tpp, trade promotion authority, ttip

Certification: How The US Demands Even More Concessions After Trade Agreements Have Been Signed And Ratified

from the enough-is-never-enough dept

The battle raging over the fast track bill is essentially one about control: who gets the final say over so-called trade agreements like TPP and TAFTA/TTIP. If the US President is not given trade promotion authority, it is possible that Congress will demand changes to the negotiated text; with fast track, it will be a simple up or down vote. That's also the situation in other countries participating in the negotiations: once the text is agreed upon, they can essentially accept it or reject it. However, a group of senior politicians in five of the TPP nations point out that after those votes, the US can still demand further concessions from its partners thanks to a process known as certification:

Senior parliamentarians from five countries negotiating the Trans-Pacific Partnership (TPP) agreement have signed an open letter urging their political leaders to protect their nations’ sovereignty from the United States' process of certification.

Here's how that works:

The US withholds the final steps that are necessary to bring a trade and investment treaty into force until the other party has changed its relevant domestic laws and regulations to meet US expectations of its obligations under the agreement. In the past, US 'expectations' have gone beyond what is in the actual text, and even included matters that were rejected in negotiations.

US officials can define another country's obligations; become directly involved in drafting that country's relevant law and regulations; demand to review and approve proposed laws before they are presented to the other country's legislature; and delay certification until the US is satisfied the new laws meet its requirements.

In other words, even though other nations might think that after their agreement and ratification of the text, everything is fixed, the US reserves the right to come back and demand changes to domestic laws and regulations so as to ensure that the implementation is as it wishes. That's no mere theoretical option: it has been used against both Peru and Australia recently. In the latter case, the US was unhappy with the legislation enacting the Australia-US free trade agreement (AUSFTA), and demanded that Australia bring in a supplementary law that actually went beyond the terms of AUSFTA. Even then, the US reserved its right to take legal action if it felt that Australia had still not gone far enough.

The publication of the open letter (pdf) to the political leaders of the TPP nations is a timely reminder that however much sovereignty they might be willing to give up during the negotiations for the sake of supposed gains, the US may want even more concessions -- without, of course, granting other countries the same prerogative.

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Filed Under: certification, promises, regulations, tafta, tpp, trade deals, ttip, us

US Says 'No' To Corporate Sovereignty Reform; Hungary Says 'No' To Corporate Sovereignty

from the clash-of-civilizations dept

Last week we wrote about an attempt by the EU's Trade Commissioner, Cecilia Malmström, to "save" the corporate sovereignty chapter in TAFTA/TTIP as more people wake up to its dangers, and resist its inclusion. Along with tinkering at the edges, her proposal for reform did have one more substantive idea: to create "a permanent multilateral investment court."

The intention was presumably to address the key objections to investment-state dispute settlement (ISDS) tribunals -- that they are secret, unpredictable and have no conflict of interest rules or appeals process -- by importing some of the key strengths of traditional courts, which are open and impartial, follow precedent and allow appeals. Of course, that approach begs the question why new courts are needed at all, when national courts already exist. But it seems that we won't be having a debate on that particular issue, since the US has lost no time pouring cold water on the whole idea, as AFP reports:

A senior US official rejected Monday an EU proposal to create an international investment court that was aimed at resolving one of the disputes holding up their free trade deal.

The comments by US Undersecretary for International Trade at the Commerce Department, Stefan Selig, include the following claim:

"The criticisms that they undermine governments' right to regulate, I think are just misguided," Selig said during a visit to Paris when asked about Malmstroem's proposals.

As I wrote last year, far from being "misguided," the past experience with corporate sovereignty shows that those criticisms are entirely justified. Selig then goes on to say:

The United States believes the ISDS mechanism "increases the security of companies willing to make investments and arguably makes that country, whether it's the United States or any country in Europe, a more attractive investment destination."

But again, that assertion is belied by the facts. According to the European Commission's recently-updated figures, in 2013, the total US investment in the EU was €1.65 trillion; the EU investment in the US was even higher -- €1.69 trillion. The size of these numbers is the best indication that companies are more than happy to send money across the Atlantic, even without ISDS.

The US refusal even to consider a major reform of corporate sovereignty poses big problems for the EU negotiators. It's clear that the strategy was to try to win over critics of ISDS by promising that its flaws -- admitted even by the European Commission -- would be fixed through the creation of a new court. With that option no longer on the table, it looks increasingly like TTIP's ISDS will simply involve some minor tweaks.

However, last week another country was making its position on corporate sovereignty clear, reported here by the Budapest Business Journal:

Hungary is against the inclusion of the investor-state dispute settlement (ISDS) clause in the Transatlantic Trade and Investment Partnership (TTIP) free trade agreement between the United States and the European Union, [Hungary's] Foreign Ministry state secretary István Mikola said yesterday following a convention of foreign trade ministers in Brussels.

Since TAFTA/TTIP is what is known as a "mixed agreement," both the EU and all the member states must ratify it before it comes into force. If Hungary refuses to do that on the grounds that it contains ISDS, it's possible the whole deal would simply collapse (it's not clear what would happen in practice, because this is largely uncharted territory). Moreover, Hungary is not the only country that is likely to vote down TTIP if it includes ISDS:

Mikola said that Hungary's views on the ISDS clause are shared by 6-7 other EU member states, but he did not name those states.

That's further evidence that the central stumbling block for TTIP is corporate sovereignty. Indeed, it seems that ISDS is fast becoming as toxic as ACTA three years ago, when politicians rushed to dissociate themselves from the idea before rejecting it completely.

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Filed Under: corporate sovereignty, hungary, isds, tafta, ttip, us

EU's New 'Scrutiny Board' To Implement Key US Demands For TAFTA/TTIP Even Before It's Completed

from the amazing-coincidences dept

Earlier this year, we discussed an interesting leak from December 2013 revealing discussions about the creation of a new transatlantic Regulatory Council as part of the TAFTA/TTIP agreement currently being negotiated. The central idea was to give a new body powers to vet proposed laws and regulations on both sides of the Atlantic, with a view to promoting trade and regulatory convergence -- two of TTIP's stated aims. Further leaks this year confirmed that negotiators are still working on implementing this idea in the agreement.

Now Corporate Europe Observatory (CEO) has obtained yet another leak, but not one from the TTIP talks. Instead, this is an internal document from the European Commission, which proposes setting up a similar regulatory body for the EU, independently of TTIP:

A new bureaucratic body is to have considerable power to stop the Commission from tabling proposals that don't adhere to a set of business-friendly principles. Furthermore, the Commission wants to be able to pull an "emergency brake" if its proposals are significantly changed in the "wrong" direction by either the Council or the European Parliament -- could be laws improving working conditions, could be environmental regulation. The leaked document is entitled "Better regulation for better results -- An EU agenda", ostensibly to be released later in May.

One aspect of the proposed system is that all new regulations would require impact assessments. Although that's sensible enough, there's a catch: if modifications are made to proposed regulations later on -- for example by the European Parliament, which frequently amends texts in this way -- that fact could be used to put a brake on the legislative process pending further examination:

Imagine if the European Parliament agreed with the Council on a compromise that would introduce more ambitious social or environmental goals to a law proposed by the Commission, for instance if a proposal that would ban a few "endocrine disruptors" due to a damaging effect to children would be extended to cover more substances. Such a scenario would then allow the Commission to pull the brake and call for an independent investigation. This would enable any business lobby coalition to regroup and focus on a particular outcome of the assessment, it could slower the procedure substantially, and possibly change the upcoming law to its original, less ambitious form.

This would clearly act as a disincentive for MEPs to try to improve legislation, since doing so would lead to delays and more lobbying that might make it even worse. In this way, the proposed system would have a chilling effect on the more democratic parts of the European Union's legislative process, and enhance the powers of the (unelected) European Commission.

Another important element of the proposal that is not quite what it seems concerns transparency:

It is striking how much the leaked document goes on about public consultation and transparency. “Lighten the Load – Have Your Say” reads the appealing slogan, depicting an ostensibly new style of open governance from the Commission, where business and citizens are to be able to comment again and again on a proposal at almost every stage of the decision process, starting from the very first inception of an idea.

That's misleading because of parallel moves by the European Commission to strengthen and broaden the protection of "trade secrets," as another report by CEO reveals. In practice, then, what greater "transparency" would really mean would be greater opportunities for businesses to lobby during all phases of drawing up new laws and regulations. The public, by contrast, would not have access to the full range of materials, some of which would be deemed "trade secrets." What's striking is that this one-sided kind of transparency is exactly what the US is asking for in TAFTA/TTIP:

This deregulatory push is also clearly related to TTIP, where both businesses and the US government have asked for more "transparency" and "stakeholder participation" in the EU at the very early stages of the legislative process, in fact well before a proposal is even presented to decision-making bodies.

Another key TAFTA/TTIP demand from the US side is the increased use of impact assessments -- just as the new Scrutiny Board would require:

TTIP will boost the use of impact assessments, and will introduce an emphasis on the effect new legislative proposals might have on US companies, on whether it is in sync with US rules, and whether it supersedes international standards.

This "coincidence" suggests that the European Commission is already working on proposals that will meet US demands in TTIP, so that by conceding them -- in theory -- EU negotiators can obtain some of their key goals in return. That may already have happened elsewhere: there is speculation that one reason why the European Commission watered down its key Fuel Quality Directive (FQD) was to accommodate US demands in TTIP's energy chapter. As the TAFTA/TTIP negotiations proceed, we can probably expect to see more proposals from the European Commission that pre-implement US demands in this way.

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Filed Under: corporate sovereignty, eu, isds, scrutiny board, tafta, ttip

Why Is Consumers' Research Pushing For Anti-Consumer Trade Deals, And Bad Intellectual Property Laws?

from the doesn't-seem-to-fit...-at-all dept

This is kind of bizarre. When you normally think of an organization like Consumers' Research, you think that it should be looking out for the consumer's best interests, and pushing back against corporations that are looking to make life worse for consumers. But apparently that's not how it is. Consumers' Research -- importantly -- is not to be confused with Consumers Union, which puts out Consumer Reports (and owns Consumerist). Consumers Union actually was created back in 1936 after a bunch of staffers revolted from Consumers' Research and set up their own thing. And while Consumers Union took off, Consumers' Research languished, such that many have probably never even heard of it. Somehow, however, it got a bizarre opinion piece published in the Hill all about strengthening the US's intellectual property laws and supporting trade agreements (like TPP and TTIP) that do so (the article is actually from a few months ago, but a reader just sent it to me). The piece is written by Joe Colangelo, who is the executive director of the organization -- though, from his LinkedIn profile, it appears he only graduated college (with a political science degree) in 2007, and then was in the Navy until 2011. After that he was a sales manager for some company and a consultant at Booz Allen (the giant government contractor) before becoming exec director of Consumers' Research. It's not clear what (if any) "consumer" background he has, other than (I assume) buying stuff every so often.

The opinion piece is a mess from the beginning:

With both sides of the aisle focusing on bettering the middle class this new Legislative session, Congress should consider determining how to better protect the intellectual property of innovative Americans. America’s knowledge-based economy requires international treaties and enforcement of current laws to keep American IP safe and to encourage innovation.

Wait, why? There's a ton of research showing that greater enforcement of IP and stricter IP laws have actually done plenty to discourage innovation. It's why most of Silicon Valley is pushing for new laws to fix the patent system, not strengthen it. And, it's why plenty in Silicon Valley are worried about agreements like the TPP for not including important features like fair use, a lack of which will stifle innovation.

IP-intensive industries create more high paying U.S. jobs than any other sector. A 2010 report by the U.S. Department of Commerce and the Patent and Trademark Office found that direct employment in IP-intensive industries in the U.S. accounted for 27.1 million jobs, and indirect activities associated with those industries provided an additional 12.9 million jobs for a total of 40 million jobs. Jobs related to IP industries comprise a staggering 27.7 percent of all jobs in the U.S. economy.

Oh gosh. Not this report again. It's been debunked so many times even bringing it up tends to be a sign of someone who is obviously ignorant of the facts. Once again, the report assumes -- incorrectly -- that if an industry gets a lot of copyright/patents/trademarks every bit of that industry only exists because of existing copyright/patent/trademark laws. It doesn't take into account that much of the economic activity may have nothing to do with those laws. Nor does it consider if there would be even greater economic activity if those laws were different -- either weaker or stronger. All you have to do to understand how messed up the report is, is to recognize that the leading "employer" cited in the report... is grocery stores. Anyone who thinks that grocery stores exist because of IP laws is clearly delusional or ignorant.

Yet, Colangelo not only accepts the study's questionable methodology, but falsely assumes it means more or stronger IP must mean more such jobs -- even though the report makes no such claim at all. Colangelo makes a random reference to a meaningless Apple patent, and some nonsense about "21st Century policies" and then starts ranting about piracy:

Illegally downloading content is not a legitimate option. Just as in the physical world, online, freedom does not mean lawlessness. Users must be aware of the consequences of internet piracy. Pirating a movie is just as illegal as slipping a DVD into your pocket and stealing it at a discount store. A truly free Internet, like any truly free community, is one where people can engage in legitimate activities safely and where bad actors are held accountable.

Remember, folks, this is a guy supposedly supporting consumers' interests, and he's pushing the laughably misleading line (that even most of Hollywood has given up on) that a download of a movie is the same as stealing the DVD. Does he think "a truly free internet" is one in which legitimate news websites are shut down just because the entertainment industry (wrongly) asserts that there is some infringing music on the site?

Next up, we get a supposed "consumer advocate" repeating the Chamber of Commerce's talking points:

Unfortunately, too many foreign governments treat IP theft as a victimless crime and look the other way, ignoring the economic and societal benefits that innovative economies offer. The lure of access to the U.S. market should be used as an incentive to convince trading partners that they should adequately protect IP rights, and to this end, the Global Intellectual Property Center recently published its third annual International IP Index. The Index serves as a tool for both government leaders and industry to evaluate the IP environments in 30 diverse economies around the globe. Effective IP protections are critical to trade agreement negotiations to protect software developers, artists, creators, innovators, and industry.

The Global Intellectual Property Center is a front group for the Chamber of Commerce. The Chamber of Commerce has a long history of opposing basically any and all consumer rights. I'm beginning to get the feeling that "Consumers' Research" is not, in fact, a consumer group any longer, but a mouthpiece for the Chamber of Commerce, and a faux consumer group. These talking points do seem an awful lot like the old SOPA talking points, whose campaign was led by the Chamber of Commerce.

Protecting IP is more than just a policy imperative – it’s enshrined by our Founding Fathers in the U.S. Constitution in Article 1, Section 8: “To promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

This clause, articulated by the Founders, is rooted in the notion that the best way to encourage creation and dissemination of new innovations and creative works to the benefit of both the public good and individual liberty is to recognize one’s right to the fruit of their intellectual labor through intellectual property rights.

Actually, that clause is rooted in the notion that Congress is supposed to actually "promote the progress" for the public, like you would think a consumer advocate would support -- and that means that it can use such powers if and only if they benefit the public. The Constitution does not require Congress to expand copyright and patent laws. It just gives it the option to do so if those laws benefit the public.

It appears that, as the fight for TPP heats up, you can expect all sorts of ridiculous bloviating from astroturfers and front groups. This particular article certainly suggests that "Consumers' Research" and Joe Colangelo are much more aligned with the interests of the Chamber of Commerce and its anti-consumer sentiment than anything that resembles a "consumer advocacy" group -- no matter the organization's historical legacy.

Filed Under: copyright, intellectual property, joe colangelo, patents, tpp, trade agreements, ttip
Companies: consumers research

UN Expert: Secret Trade Negotiations Are A 'Threat To Human Rights'

from the null-and-void dept

Here on Techdirt, we've had plenty of posts looking at the major trade agreements currently being negotiated. As we've noted, criticism of TPP and TAFTA/TTIP has come from many quarters, particularly for the corporate sovereignty provisions, which are seen as problematic both on the left and right wings of the political spectrum. Intellectual Property Watch carries a fascinating statement criticizing key aspects of trade negotiations, which looks at things from quite a different angle. It's written by Alfred de Zayas, who is the "Independent Expert on the promotion of a democratic and equitable international order" -- apparently an honorary and unpaid position. In his statement, he expresses:

his deep concern over the general lack of awareness on the adverse effects that existing, or under negotiations, bilateral and multilateral free trade and investment agreements have on the enjoyment of human rights in many countries, particularly in the developing world.

Specifically, he is concerned about the secrecy of trade talks, and the fact that key stakeholders like trade unions, environmental protection grups and health professionals are excluded -- something that we've commented on many times here on Techdirt. He also thinks that fast-tracking the adoption of treaties -- as is currently being attempted in the US -- has a "detrimental impact on the promotion of a democratic and equitable world order." That's because, as de Zayas puts it:

It is tantamount to disenfranchising the public and constitutes a violation to accepted human rights law, which stipulates that every citizen shall have the right and the opportunity to take part in the conduct of public affairs.

No surprise, then, that de Zayas has particular concerns about an area that is very familiar to Techdirt readers: corporate sovereignty.

I am especially worried about the impact that investor-state-arbitrations (ISDS) have already had and foreseeably will have on human rights, in particular the provision which allows investors to challenge domestic legislation and administrative decisions if these can potentially reduce their profits.

...

The establishment of parallel systems of dispute settlement and their exemption from scrutiny and appeal are incompatible with principles of constitutionality and the rule of law, and as such are harmful to the moral welfare of society ("contra bonos mores").

One intriguing point de Zayas makes is that since all nations are bound by the UN Charter, any treaties they negotiate must also conform to its provisions. Article 103 of that Charter states that if there is any conflict between a treaty and the UN Charter, it is the Charter that prevails. That has interesting implications for corporate sovereignty cases before ISDS tribunals:

Provisions of free trade and investment agreements as well as decisions of ISDS arbitrators must conform with the UN Charter and must not lead to a violation, erosion of or retrogression in human rights protection or compromise State sovereignty and the State’s fundamental obligation to ensure the human rights and well-being of all persons living under its jurisdiction. Agreements or arbitral decisions that violate international human rights law are null and void as incompatible with Article 103 of the UN Charter and contrary to international ordre public.

That's a great point, although it's a little hard to see it having much practical impact on the current negotiations. Unfortunately, the same might be said about the whole of de Zayas's statement, but it's certainly good to have his analysis here.

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Filed Under: alfred de zayas, human rights, secrecy, tpp, trade agreements, transparency, ttip, un