Brexit Deal Copied And Pasted Recommendations For Netscape, Outdated Encryption

from the I'm-sure-this-will-all-go-great dept

You'd think a massive and controversial deal to sever the UK from the European Union, impacting the lives of millions of people over the better part of the next generation, would contain a certain amount of... precision.

Not so much.

After a long, contentious debate and some last minute haggling over fish, the final agreement governing the United Kingdom and European Union’s trade relations for decades was finalized last week. But when security researchers dug through the wording of the final agreement (which you can peruse here (pdf)), they found a bunch of indications of laziness.

Including, apparently, recommendations to protect yourself from cyberattacks by using a web browser (Netscape) that stopped being updated somewhere around 1997 or so:

As the BBC notes, the language appears to have been copied and pasted from a 2008 law, and the recommendations were already outdated then. While it's reflective of the rushed and sloppy nature of the effort, the Netscape recommendation isn't that big of a deal, given it's simply cited as an example of a "modern e-mail software package” and will likely be ignored. More troubling however is the document's recommendation of using 1024-bit RSA encryption and the SHA-1 hashing algorithm, both outdated and vulnerable to cyber-attacks:

" the SHA-1 hashing algorithm has been demonstrated to be vulnerable to collision attacks, and computing power has advanced such that 1024-bit RSA encryption can be broken in a sensible time frame by anyone with sufficient GPU power to give it a try. It’s clear that something is amiss in the drafting of this treaty, and we’d go so far as to venture the opinion that a tired civil servant simply cut-and-pasted from a late-1990s security document."

While you'd hope the recommendations won't be taken seriously, it still suggests a certain amount of... half-assedness that doesn't bode particularly well for the broader agreement, the finer details of which will impact the lives of real human beings for decades.

Filed Under: brexit, copy paste, encryption, eu, trade deals, uk
Companies: netscape

Japan-UK Trade Deal Shows How Controversial Digital Policies Can Be Slipped Through With Little Scrutiny Or Resistance

from the welcome-to-the-data-washing-hub dept

Techdirt has been writing about trade agreements for many years. The reason is simple: as digital technology permeates ever more aspects of modern life, so international trade deals reflect this by including sections that have an important impact on the online world. A new trade agreement between Japan and the UK (pdf) is a good example. It is essentially a copy of the earlier trade deal between the EU and Japan (pdf) -- because of Brexit, UK negotiators have not had the time or resources to draw up their own independent text, which typically requires years of drafting and negotiation. But significantly, the Japan-UK agreement adds several major sections purely about digital matters. All are terrible for the general public, as a briefing document from the UK-based Open Rights Group explains.

One issue concerns transfers of personal data between the UK and Japan. In the EU, this is governed by the well-known and relatively stringent GDPR. In fact, in order to achieve "adequacy" -- essentially, legal permission to receive EU personal data -- Japan has had to strengthen its data protection laws:

The EU required Japan to change its data protection regime, including supplementary rules on onwards transfers of EU data to other countries. The European Parliament has expressed further concerns and Japan is considering further changes.

However, the Japan-UK trade deal explicitly calls for personal data flows to be made easier, with a consequent watering-down of EU-level protections:

The UK deal includes measures which ban restrictions on the free flow of personal data, restrictions which could clash with the limits which European data protection laws place on international transfers. The EU could not adopt these measures in its treaty with Japan, and instead put in placeholder text committing both parties to review the situation in three years. The UK-Japan text heeds the wording of the USMCA [United States-Mexico-Canada Free Trade Agreement], with some extra clauses to exclude procurement and data kept on government orders.

The banning of restrictions on the free flow of personal data allows for public interest policies, following a standard formulation in trade agreements. This regime looks reasonable on paper, but in practice, it is very difficult to implement public interest policies which clash with trade liberalisation, as they are open to legal challenge, which rarely find in favour of restrictions.

Open Rights Group notes two important consequences of this decision not to follow the EU text here. First, it potentially allows personal data flowing to the UK from third countries to be passed to Japan and then on to other jurisdictions, for example the US, with almost no controls or restrictions. This would turn the UK into a "data washing hub" as the Open Rights Group puts it. In this respect, the UK-Japan deal contrasts with the EU-Japan deal, where:

The EU specifically excluded data flows from their trade agreement with Japan. Although Japan has an adequacy decision from the EU, it had to put specific arrangements in place for EU data to stay in Japan.

Given that risk, it is highly likely that the EU will refuse to grant adequacy to the UK, in order to prevent the personal data of EU citizens being sent via the UK to Japan or the US without adequate protections. The crucial role of personal data in modern business means a failure to gain adequacy will have a hugely negative impact on EU-UK trade. The other significant addition to the text in the digital sphere concerns "technical protection mechanisms" (TPMs) -- DRM and similar technologies -- and the criminalization of circumventing them. Open Rights Group points out:

Another concern for digital rights in the UK is the potential criminalisation of circumvention outside commercial endeavours, affecting ordinary people. Circumvention is not a niche activity. Millions of people used to make backup copies of DVDs and many today have to bypass technological protections in order to convert their protected ebooks to other formats. The provisions in the USMCA will require Mexico to beef up its anti- circumvention laws, including introducing criminal penalties for "commercial advantage or private gain".

Finally, there is an interesting section dealing with cryptography. The Japan-UK deal introduces provisions to shield cryptography from a range of government requirements, such as sharing or disclosing keys. However:

What is different here is that the UK also introduces a specific exception for law enforcement to demand access to encrypted communications and for financial regulation. This is not surprising given that the UK is at the forefront of government demands to access data from encrypted messaging systems such as WhatsApp or Telegram. There are no public interest policy exceptions in this area, however limited, only demands from courts, regulators or police.

Of course, the UK is not alone in wanting access to encrypted communications: a recent Techdirt article noted that the EU is also looking to require what is euphemistically termed "lawful access" -- that is, backdoors -- to end-to-end encrypted communications, as is the US and elsewhere. What is significant here is that the exception is being introduced in the context of trade, with no expert input or public debate about the details, as are the other measures discussed above. The danger is that this will become a common practice, where governments try to slip through contentious digital policies as short sections of obscure but far-reaching trade deals.

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Filed Under: backdoors, brexit, data protection, encryption, japan, privacy, trade deals, uk

TPP Is Back, Minus Copyright Provisions And Pharma Patent Extensions, In A Clear Snub To Trump And The US

from the canada,-leader-of-the-free-world? dept

As Techdirt noted back in November, the Trans Pacific Partnership (TPP) agreement was not killed by Donald Trump's decision to pull the US out of the deal. Instead, something rather interesting happened: one of the TPP's worst chapters, dealing with copyright, was "suspended" at the insistence of the Canadian government, which suddenly took on a leading role. At the time, it wasn't clear whether this was merely a temporary ploy, or was permanent. With news that the clumsily-named "Comprehensive and Progressive Agreement for Trans-Pacific Partnership" (CPTPP) has been "concluded", it now seems that the exclusion of both copyright and pharma patent extensions is confirmed. As Michael Geist writes:

the IP chapter largely reflected U.S. demands and with its exit from the TPP, an overhaul that more closely aligns the agreement to international standards was needed. Canada succeeded on that front with an agreement to suspend most of the controversial IP provisions including those involving copyright term, patent extension, biologics protection, and digital lock rules.

That's the good news. But there's still plenty of bad stuff in the CPTPP, a sample of which is listed here by The Atlantic:

A controversial arrangement whereby companies can sue countries over their domestic laws, known as the investor-state dispute settlement [ISDS -- corporate sovereignty] system, remains in a reduced fashion. Labor and environmental protections are largely unchanged [and unsatisfactory]. The EFF's [Jeremy] Malcolm pointed to e-commerce provisions that provide only weak privacy protections, among other issues, as still being problematic. But overall, the new deal is so similar to the original that Canadian labor unions are furious that their government is still advancing it, just as labor groups in the U.S. objected under Obama.

That anger means that even in the absence of the copyright and pharma patent extensions, there is still likely to be some resistance to the new deal, and not just in Canada. For example, economists estimate that the CPTPP will boost Australia's economy by only 0.04% per year -- a negligible amount that will be swamped by fluctuations in other factors. Some Australian businesses warn that the continuing existence of bilateral trade deals with eight of the CPTPP countries will lead to a complex "noodle bowl" of rules and regulations that could make it harder, not easier, to conduct business with them. In New Zealand, a long-standing critic of TPP, Professor Jane Kelsey, is particularly worried about a chapter on electronic commerce. And in Malaysia, a consumer group has urged the government there not to sign the deal, which it said would be "even worse" than TPP for the country.

Although we still don't have the final details of the deal, and the lingering presence of corporate sovereignty is regrettable, the CPTPP signals a hopeful shift away from the usual intellectual monopoly maximalism. The omission of copyright and patents from the new deal is a significant defeat for the US, which has been the main driving force behind their routine inclusion. And the fact that the CPTPP is going ahead at all without the US is a clear snub to Trump and his rejection of such multilateral trade negotiations.

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Filed Under: canada, corporate sovereignty, cptpp, donald trump, isds, tpp, trade deals, trade negotiations, us

Lawyers Gearing Up To Hit UK With Corporate Sovereignty Claims Totalling Billions Of Dollars Over Brexit

from the nobody-painted-that-on-the-side-of-a-bus dept

We're not hearing much about corporate sovereignty -- also known as "investment state dispute settlement" (ISDS) -- these days. It's definitely still a problem, especially for smaller countries. But the big fights over the inclusion of corporate sovereignty chapters in the two global trade deals -- the Transatlantic Trade and Investment Partnership (TTIP), and the Trans-Pacific Partnership (TPP) agreement -- have been put on hold for the moment. That's for the simple reason that both TPP and TTIP are in a kind of limbo following the election of Donald Trump as US President with his anti-free trade platform.

TTIP seems completely moribund, whereas TPP -- re-branded as TPP11 to reflect the fact that there are only 11 countries now that the US has pulled out -- is showing the odd twitch of life. A recent article in the Canadian newspaper National Post points out that the departure of the US might even allow some of the worst bits of TPP to be jettisoned:

the Americans insisted on longer intellectual property patent terms and stronger copyright regulations than many countries wanted. Canada will now argue for shorter patent terms, in support of its generic drug sector and in an attempt to keep drug costs down.

Canada is also keen to water down the investor-state dispute settlement negotiated by the U.S. in the original deal, and bolster the state's right to regulate in the public interest.

The move by Canada to rein in some of the worst excesses of corporate sovereignty follows the EU's lead in this area. As Techdirt reported, during the TTIP negotiations between the EU and US, the former suggested replacing the old ISDS with a "new" Investment Court System (ICS). Although the US was not interested, Canada later agreed to this slightly watered-down version for the CETA trade deal with the EU.

The ICS still doesn't exist, and is still something of a mystery in terms of how it will work. It was proposed in an attempt to head off massive public concern about corporations being able to sue governments -- and thus taxpayers -- for huge sums, completely outside the normal legal system, and subject to few constraints. But even ICS was not enough to stop the Belgian region of Wallonia nearly de-railing the CETA deal at the last moment.

Anxious to avoid that happening again, the President of the European Commission, Jean-Claude Juncker, had a rather radical suggestion in his recent State of the Union address. In order to make future trade deals easier to push through the legislative process in the EU, Juncker proposed removing investment protection chapters from them completely, and negotiating a separate deal covering this aspect. An article on Politico.eu explains the thinking behind that move:

Slicing out investment protection will give [Juncker] an immediate legal advantage. Under EU law, a trade deal without investment clauses could be ratified exclusively by the European Parliament and by the member countries as represented at the Council in Brussels. That effectively removes the direct veto powers of the Walloons.

Simon Lester, Trade Policy Analyst at the Cato Institute, thinks the US should follow suit -- an idea that someone from the same group suggested a few years ago:

The Europeans have faced a greater struggle with investment protection and ISDS than has been the case in the United States, but these provisions have been a problem here as well. If we want to make it easier to get trade negotiations completed and trade agreements passed by Congress, we should consider following the EU's lead.

Although removing corporate sovereignty from trade deals does not solve the larger problem of giving companies special protection, it is a step in the right direction. For example, after concluding trade deals that do not have ISDS chapters, governments may decide to bring them in as quickly as possible in order to enjoy their claimed benefits. When commercial relations work perfectly well without them -- as is already the case for both the US-Australia trade deal, and the one between the EU and South Korea, neither of which include corporate sovereignty -- governments may decide to leave it at that, and forget about further negotiations covering investment.

Unfortunately, none of these recent moves is likely to help the UK, currently struggling with the implications of last year's "Brexit" referendum to leave the EU. Ever-inventive lawyers have realized that an unexpected withdrawal of the country from the EU could represent an excellent opportunity for companies that have invested in the UK to claim that they will suffer as a result, and to use corporate sovereignty clauses to claim compensation potentially amounting to billions of dollars. Corporate Europe Observatory has a new post exploring what could happen here:

the UK's impending exit from the European Union may bring new investment arbitration opportunities. The country has 92 investment agreements in force, which investors from other countries could use to file ISDS claims against the UK. In conferences and alerts for their multinational clients, some of the top investment arbitration law firms are already assessing the prospect of such Brexit claims. Depending on how the Brexit negotiations turn out, these lawsuits could be about anything from foreign carmakers or financial companies losing free access to the EU market, to the government scrapping subsidies for certain sectors. One lawyer from UK-based law firm Volterra Fietta has even suggested that "there may be a number of investors that would have come to the UK expecting to have a certain low wage group of employees", which might sue for loss of expected profit if they lose access to underpaid, foreign workers.

But the clever lawyers don't stop there. They see opportunities for corporations to use Brexit as a way to sue other EU countries too:

Several law firms have published briefings suggesting that it would be an advantage for corporations if they structured their foreign investment into the remaining EU member states through the UK. This means that if you are a German company, for instance, and have an investment in Romania you could let this investment 'flow' through a subsidiary -- possibly only a mailbox company -- in the UK. You could then sue Romania via its bilateral investment treaty with the UK -- even if no such treaty was in place between Romania and Germany.

This kind of "creativity" is yet another reason why tweaks to corporate sovereignty of the kind contemplated by the EU and Canada are simply not enough: ISDS needs to be dropped completely from all trade deals -- past, present and future.

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Filed Under: brexit, corporate sovereignty, eu, isds, trade agreements, trade deals, uk

After Voting To 'Escape' EU Sovereignty, Post-Brexit UK Will Become Subject To Corporate Sovereignty On A Massive Scale

from the out-of-the-frying-pan,-into-the-fire dept

One of the slogans used by those in favor of the UK leaving the European Union -- aka Brexit -- was that it would allow Brits to "take back control." In particular, it was claimed, Brexit would stop the European Union and its top court from "imposing" their decisions that took precedence over national laws. It was an appealing slogan for many -- a bit like "Make America great again" -- but as with other appealing slogans, with time it proved rather hollow. In the wake of the UK referendum in favor of Brexit, the British government is faced with the task of coming up with large numbers of trade deals that will somehow compensate for the almost-certain loss of preferential access to the EU. Naturally, the most important of these "new" trade deals is with the US. Unfortunately, the British negotiating position is fatally undermined by the fact that the UK is desperate for a deal, whereas the US doesn't need it at all. Inevitably, then, the US will get to dictate its terms, and UK government will be forced to accept them, however bad they are, because it has no alternative. So much for "taking back control."

Rather belatedly, people are beginning to wake up to what that is likely to mean in practice. Here, for example, is an analysis on BuzzFeed of a key problem with the UK government's plan to sign lots of new trade deals to plug the gap left by exiting the EU:

Trade experts have warned that signing such deals without the EU judicial system will almost inevitably mean signing up to systems known as "ISDS" (Investor State Dispute Settlement) -- secretive, binding arbitration systems that can force countries to overturn their laws when it hurts corporate interests. These formed the core of international opposition to trade deals such as TTIP (between the EU and US) and CETA (between the EU and Canada).

It might be argued that ISDS -- corporate sovereignty -- isn't a new issue for the UK. The country already has many trade deals that include corporate sovereignty chapters:

UK corporations have been some of the most active users of ISDS to enforce their rights overseas, analysis of the 700 or so known disputes shows. Sixty-four of the 700 were made by UK companies against overseas governments, while only one ISDS dispute has ever been filed against the UK -- and didn’t go anywhere.

The UK has been able to use ISDS as an offensive weapon without being hit by many claims itself because most of its existing trade deals are with countries that have relatively small economies. They have few companies or individuals who are in a position to make major investments in the UK, which means few are able to use corporate sovereignty clauses against the UK. The UK, by contrast, has plenty of rich investors who can and do take advantage of secret ISDS tribunals.

That situation will change dramatically if and when the UK signs a trade deal with the US -- the British government has made clear that doing so will be a priority post-Brexit. The US has huge investments in the UK, and these are likely to be covered retrospectively by ISDS in any trade deal. That was the intention in TAFTA/TTIP, which now seems likely to suffer the same fate as TPP. After all, why wouldn't Trump demand this strong protection for investments made by US companies -- and by himself?

As the BuzzFeed article points out, requiring a corporate sovereignty chapter in a US-UK trade deal would lead to a rather ironic situation. The Brexit vote, which many insisted would allow the UK to throw off the yoke of supposedly "anti-democratic" supranational EU judgments, is almost certain to see a post-Brexit UK subject to large numbers of supranational ISDS judgments that are even less democratic.

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Filed Under: brexit, corporate sovereignty, eu, isds, trade agreements, trade deals, uk

Despite Trump's Pledge To Kill It, Some Still Hope TPP Will Live Again, As Rival RCEP Stumbles Too

from the idea-whose-time-has-passed dept

As Techdirt wrote last month, there's little prospect of Donald Trump being able to re-negotiate the Trans-Pacific Partnership deal, for reasons to do with the political realities in other countries. That hasn't stopped the true believers from continuing to clutch at straws in the hope that TPP might somehow come back from the dead. For example, here's the view from New Zealand:

It remains to be seen whether the United States will pull out of the Trans Pacific Partnership (TPP), Prime Minister Bill English says.

Here's Australia:

Australia has declared the Trans-Pacific Partnership (TPP) not dead ahead of key trade talks with Japanese Prime Minister Shinzo Abe in Sydney on Saturday, despite opposition to the trade pact from U.S. President-elect Donald Trump.

Even in the US, people are still hoping against hope because of things like this:

Donald Trump's choice for secretary of state Rex Tillerson said Wednesday (Jan 11) he is not against the recently negotiated Asia-Pacific free-trade deal, putting him at odds with the president-elect who has vowed to scrap it.

However, it's worth noting that the very next day, a "Trump transition policy adviser" stated categorically:

"TPP is dead. I cannot stress that more strongly," said the adviser, who requested anonymity because he was not authorized to speak publicly for the administration that takes office on Jan. 20.

"TPP, or a multilateral agreement that looks like TPP but is called something else, is emphatically dead."

Supporters of the trade deal are trying to paint that decision as a defeat for the US and an opportunity for China, as the New York Times reports:

walking away from TPP may be seen by future generations as the moment America chose to cede leadership to others in this part of the world and accept a diminished role. Such an outcome would be cause for celebration among those who favor "Asia for the Asians" and state capitalism. It would be disastrous for supporters of inclusive politics, rule of law, and market economics -- and for U.S. national interests.

China is part of a rival to TPP, the Regional Comprehensive Economic Partnership (RCEP), which manages to be even worse than TPP. The assumption has been that RCEP negotiations will grind on until they reach a successful conclusion. But there are some interesting first signs that may not happen, analyzed here on the CNBC site:

the contrasting priorities of the RCEP players are proving to be the biggest obstacle to success. Members are floundering to bring RCEP to conclusion and they have postponed the deadline from Dec. 2016 until the end of 2017, pointed out Meredith Miller, vice president at Albright Stonebridge Group.

One of the most contentious areas regards affordable access to generic drugs:

Japan and South Korea are suggesting IP policies that may increase medical treatment costs and restrict access to affordable generic medicines for people in several countries, prompting vocal backlash from New Delhi ministers as well as international health organizations. India is often dubbed as the 'pharmacy of the developing world' for its massive production of generic medicines that treat communicable and non-communicable diseases.

TPP foundered on the fact that it offered precious few benefits to the general public, and plenty of downsides. It looks like RCEP is hitting the same problems. The "other" Pacific deal's difficulties may be a further sign that the era of massive global trade deals like TPP, TTIP and TISA, all negotiated in secret, and all now in doubt, may finally be over. We can probably expect smaller-scale, bilateral deals to become the norm instead.

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Filed Under: asia, donald trump, rcep, tpp, trade agreements, trade deals

Study Shows Risks Of Including Corporate Sovereignty In The 'Other' Huge Asian Trade Deal, RCEP

from the watch-out-US dept

As we've noted, TPP is unlikely to come back from the dead, despite what some seem to think or hope. For example, the Japanese government has decided to go ahead and ratify TPP anyway. That seems foolish, since it has just thrown away most of its bargaining counters for other trade negotiations, in what amounts to an act of political seppuku. As Sean Flynn points out, Japan has form here, since it also ratified the infamous Anti-Counterfeiting Trade Agreement (ACTA), just as pointlessly.

One of the most important trade deals still under active discussion is the Regional Comprehensive Economic Partnership (RCEP). Techdirt first wrote about this 18 months ago, while recently we noted that many of its provisions are even worse than those in TPP. One aspect of RCEP that has received little attention so far is the corporate sovereignty chapter. The Transnational Institute (TNI) has put together a useful document looking at what it calls the "hidden costs" of including investor-state dispute settlement (ISDS) in RCEP. It provides an excellent summary of corporate sovereignty activity in Asia that complements a 2014 study from Friends of the Earth Europe, which looked at the same "hidden costs" of ISDS in Europe. Here are a few of the main findings for RCEP nations (pdf):

50 investment arbitration cases already filed against 11 RCEP (Regional Comprehensive Economic Partnership) countries since 1994, over 50% of which have been filed after 2010.

India alone has been the target of 40% of the cases filed against RCEP countries.

Foreign investors have claimed at least 31 billion USD from RCEP countries. Given the secrecy surrounding investor-state dispute settlement (ISDS) proceedings, this could be much more. This amount is 7 billion USD less than India's entire health budget for 2015.

Of the 31 billion USD claimed by investors, 81% has been claimed from just four countries, India, South Korea, Australia and Vietnam.

The largest known amount paid to a foreign Investor by an RCEP country is 337 million USD as part of the settlement in the Cemex versus Indonesia case.

36% of cases against RCEP countries concern environmentally relevant sectors.

RCEP countries have been sued for measures taken to protect public health, adjust corporate taxes, promote industrialisation, and review contracts acquired through allegations of corruption, among others.

The study brings together much-needed data on corporate sovereignty cases in Asia. It also points outs why RCEP countries would be very unwise to sign up to an ISDS chapter in the deal:

Including the harmful ISDS clause in the RCEP trade agreement under negotiation contributes to cementing investors' rights and expanding the scope of private arbitrators' power. RCEP will lock in place this system of privatised justice. Governments will find it much more difficult to withdraw their commitments to the rights accorded to foreign investors in RCEP than in Bilateral Investment Treaties, because they would need to put an end to the whole agreement and not just the sections on investors' rights.

It's a general problem with ISDS provisions in trade deals: they are almost impossible to cancel, however much harm they end up causing. The bigger the deal, the greater the lock-in. This aspect underlines once more how corporate sovereignty comes at the expense of national sovereignty.

Finally, there's one other interesting nugget that Techdirt readers may find of note. According to the RCEP report, over two-thirds of all ISDS cases against RCEP nations have come from Europe. At the moment, there are only a few minor trade deals that allow European companies to sue the US in ISDS tribunals, in theory at least. But if some kind of post-Trump TTIP 2.0 were agreed -- always a possibility despite the anti-trade deal rhetoric -- and it included a corporate sovereignty chapter, the US might find itself on the receiving end of a similar barrage of costly lawsuits that will reduce its sovereignty at both a national and local level.

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Filed Under: asia, china, corporate sovereignty, isds, rcep, trade deals

TPP, TTIP And CETA Are Disasters For The Public: Are There Better Ways To Do Trade Deals?

from the Paul-Magnette-says-there-are dept

Techdirt has been covering so-called trade deals like TPP, TTIP, TISA and CETA for many years, and we've reported on the deep problems that people have discerned in their proposals. A legitimate criticism might be that pointing out difficulties is all very well, but what are the alternatives? One was offered back in 2013, from something called the Alternative Trade Mandate Alliance:

an alliance of development and farmers' groups, Fair Trade activists, trade unionists, migrant workers, environmentalists, women's, human rights, faith and consumer groups from all over Europe, developing an alternative vision of European trade policy that puts people and planet before big business.

That sank without trace, and things have been pretty quiet since then on the alternative trade deals front. But now we have the grandly-named Namur Declaration. The name is significant: it's the capital of the Belgian region of Wallonia that came close to derailing the EU-Canada trade deal (and may still do so). The 29 signatories (pdf) are all European academics, and they include the well-known economist Thomas Piketty, and a former political science professor at the Université Libre de Bruxelles, called Paul Magnette. He's better known as the Minister-President of Wallonia, and the person who led the resistance to CETA, which adds an extra piquancy to the Declaration. Here's the basic intent:

The propositions in this Declaration aim to meet the legitimate concerns of a growing number of European citizens. Inspired by the values of solidarity, democracy and progress that constitute the European Union, these propositions must, according to the signatories, become the standard in every negotiation of trade and economic treaties in which the EU and its Member States are stakeholders.

It then goes on to make the interesting comment:

This means that the EU is not in a position today to negotiate a balanced agreement with the United States, given the asymmetry between the partners, especially in terms of the degree of completion of their respective domestic markets and the unresolved extraterritorial issues of US law.

The main Declaration consists of three sections. The first, "Respect for democratic procedures," calls for a bunch of sensible things. For example, it says:

Public analyses and contestation of the potential effects of a new economic and commercial treaty should take place before establishing a negotiating mandate.

Similarly:

The interim results of the negotiations should be made public and accessible in due course, so that civil society is ensured full knowledge and a parliamentary debate can take place before closing the negotiations

The second section calls for "Compliance with socio-economic, sanitary and environmental legislation," and includes the following novel idea:

Standstill clauses should be included to prevent the Parties from lowering their social, sanitary and environmental norms to promote exports and attract investment. These clauses shall be matched with sanction mechanisms, and Parties' compliance with their obligations may in no case substantiate a claim for compensation by investors or other private economic operators

That's a neat subversion of the traditional standstill clause -- for example in TISA -- which is designed to ensure that parties cannot ever reduce their concessions to business, and must always move in the direction of increasing liberalization and deregulation. In the last section, the Namur Declaration addresses the thorny issue of corporate sovereignty:

The recourse to national and European competent courts should be favoured. International dispute settlement mechanisms should be established only insofar as they have certain advantages (in terms of the uniform application of treaties, speed and qualification of judges), include transparency guarantees and an appeal mechanism ensuring the consistency of decisions

As well as calling for truly independent and impartial judges, the Declaration also wants any dispute resolution mechanism to be available to small companies and even members of the public.

The Namur Declaration is mostly of interest because it grew out of Magnette's personal experience with CETA (article in French). The fact that a few dozen leading academics have lent their names to it adds weight, but is unlikely to bring about major changes to the way that trade negotiations are conducted. However, seismic political developments on both sides of the Atlantic are already doing that; let's hope these provide an opportunity to debate and maybe even adopt some of the Declaration's bold ideas.

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Filed Under: ceta, international trade, namur declaration, tpp, trade, trade deals, ttip

US Admits TPP Is Dead, TTIP On Life Support... But Beware Of What Comes Next

from the this-isn't-over dept

Back when most people still expected Hillary Clinton to be our next President, there was a lot of talk about how President Obama would try to shove through the ratification of the TPP agreement in the lame duck session between the election and the inauguration -- so that Clinton wouldn't have to flip flop on the agreement yet again. Of course, with Trump elected, that was going to be even more difficult, and now basically everyone in the administration and Congress has agreed that the TPP is dead. There will be no effort to ratify it in the lame duck session, and it certainly seems unlikely that President Trump will push to revive it. While other countries in the agreement may move forward, it doesn't matter unless the US ratifies. It's expected that the other major trade deal, the TTIP, is also unlikely to move forward at this point.

Of course, this doesn't mean we're out of the water. These agreements may be dying, but not for the right reasons -- and that's what should worry folks. The reason why many of us have been worried about TPP and TTIP is not because of the actual free trade parts of the agreement that involve lowering or getting rid of tariffs -- but rather much of the other stuff in there, including dangerous and damaging copyright and patent policies, along with the whole ISDS setup, which is really a provision for corporate sovereignty, giving companies the effective ability to veto certain regulations.

But, that doesn't seem to be the reason why Trump is against these deals. Rather, almost all of his commentary on these agreements is about how other countries are "winning" and the US is "losing" from these trade deals -- and how he's ready and willing to jack up tariffs and basically set off trade wars with some of our largest trading partners. That's bad, and will likely cause a lot more harm than good. Furthermore, the fact that Trump is either unaware or doesn't understand the actual problems with these agreements suggests that there will be ample opportunity for lobbyists to work them in to future agreements. So while the problems of the TPP (and TTIP) are now off the table, there is plenty to watch out for going forward.

Filed Under: corporate sovereignty, donald trump, free trade, isds, tpp, trade deals, ttip

Even Fans Admit Chances Of TPP Being Ratified By US Soon -- Or Ever -- Have Just Slumped

from the stumped-by-Trump dept

In the wake of the unexpected win of Donald Trump, people in many fields are starting to re-examine their assumptions about what might happen in the next few years. One of the areas impacted by Trump's success is trade in general, and trade deals in particular. For perhaps the first time, the 2016 election campaign put trade deals front and center. They may even have contributed to Hillary Clinton's downfall, since many found her sudden conversion to the anti-TPP movement unconvincing, to say the least.

Given Trump's vocal antipathy to TPP, even its strongest supporters are recognizing that it is now in trouble. Here, for example, is John Key, Prime Minister of New Zealand, and one of the cheerleaders for the deal:

[TPP] would have been nice to have, but we're not going to have it in the short term.

The leader of the main opposition party in New Zealand agreed:

[TPP] seems to be dead in the water now.

The Radio New Zealand report that these comments are taken from had further confirmation of TPP's demise from a source with privileged access to the man himself:

A close Trump supporter, Senator Jeff Sessions, told reporters at Mr Trump's victory party last night the proposed deal was now "dead".

Of course, "dead" is not an absolute term in politics. TPP may be dead in the short term -- something underlined by US Senate Majority Leader Mitch McConnell and the Senate's soon-to-be-top Democrat -- but that doesn't necessarily mean completely dead forever. New Zealand's Key had some thoughts on what might happen next:

Does that mean there will never be an attempt to re-negotiate it? No, because President Trump will get the same advice from the State Department, from the Pentagon, from the Treasury that President Obama got, which is that you need to have influence and you need to have presence in Asia and to do that free trade locking you in there is the way to do it.

Re-negotiating TPP is going to be painful for all the other participants, who doubtless thought and hoped it was all done and dusted. It will be particularly awkward for Japan, because this just happened:

Japan's House of Representatives voted to ratify the Trans-Pacific Partnership trade agreement and passed a related bill Thursday, despite diminishing prospects for the ratification of the pact by the United States following Donald Trump's victory in the presidential election.

That might stand as a warning to other TPP nations that are on the brink of ratifying the deal. Given the huge uncertainty surrounding its fate, holding off would be a very sensible move at this point -- something that Key himself needs to remember before he pushes through New Zealand's TPP Amendment Bill.

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Filed Under: donald trump, japan, new zealand, tpp, trade deals