German judges have dealt a blow to US-EU free trade agreement talks after declaring a proposed arbitration court illegal. But the decision is a rare glimmer of good news for opponents of the secretly negotiated trade agreement, as the signing of the US-EU Transatlantic Trade and Investment Partnership (TTIP) is imminent, and comes hard on the heels of the already signed Trans Pacific Partnership Agreement (TPP) – another international trade agreement that was negotiated in secret between tweleve Pacific Rim nations including the US, Canada, New Zealand, Peru, Mexico, Vietnam and Japan.
As part of the TTIP, the European Commission had proposed setting up an investment tribunal court that would allow firms to challenge government decisions: these are the so called Investor-state dispute settlement (ISDS) provisions – instruments of public international law, which grants an investor the right to initiate dispute settlement proceedings against a foreign government. Critics says the new court, which is intended to replace the actual ISDS system, would be even worse – and would will pressure governments into clawing back consumer protection rights, pushing up the price of medicines and watering down environmental protection to favour of corporate interests.
Now the German Association of Magistrates, the Berlin-based umbrella organisation for the judiciary, said it “sees neither a legal basis nor a need for such a court”. It says existing national courts are good enough and that efforts by the Commission to create a new court undermines jurisdictions across the Union saying “The German Magistrates Association sees no need for the establishment of a special court for investors” and the new investor court would alter national court systems “and deprive courts of member states of their power.” The German magistrates also cast doubt on the independence of the judges in the new system, as well as their appointment procedures.
Proponents, for their part, say the investment tribunal court is needed to both protect and attract foreign investment from potentially hostile governments or biased domestic courts. EU trade commissioner Cecilia Malmstrom, who is heading the TTIP talks, last year said the new court would be “subject to democratic principles and public scrutiny”.
The TTIP talks, which have been largely held in secret since 2013, aim to remove non-tariff barriers to trade. One German MP, Katja Kipping, an elected representative ofcourse, was one of the first German MPs to gain access to the new TTIP – but only underr close supervision in a reading room opened in Berlin. As Ms Kipping notes: “ TTIP, the EU-US free trade deal, has secrecy written all over it. Those responsible for it live in dread of any public scrutiny. If it was up to me, I would give everyone who’s interested the chance to make up their own minds on the text of the agreement in its current form. Sigmar Gabriel, Minister for Economic Affairs and a top cheerleader for TTIP, has now set up a reading room in his ministry where since the beginning of February German MPs can each spend two hours looking at those texts on which consensus has already been reached.”
If you wonder why this is of concern – Global Justice recently highlighted the $15 billion legal action brought by energy infrastructure corporation TransCanada against the USA for President Obama’s actions cancelling the Keystone XL Pipeline project. Keystone XL was designed to carry tar sands oil from Hardisty in Alberta to Steele City in Nebraska, thus increasing outlets for the most carbon-intensive oil currently produced, and reinforcing the dependency that industrialised countries like the US have on fossil fuels. The legal case is being brought under the auspices of NAFTA, a predecessor of the current crop of free trade agreements such at TTIP, CETA and TPP – some of the most alarming legal instruments ever devised to subvert democracy. Why any government would agree to fetter their own power is questionable (at best) – and the potential of the end result is simply terrifying. And yes, President Obama IS the elected leader of the dominant economy in the so called ‘free world’! But it has been Obama’s administration that has pushed through these trade agreements – but not without sustained criticism from both Republican and Democrat elected representatives.
In May 2012, United States Senator Ron Wyden (D-OR) said that “the majority of Congress is being kept in the dark as to the substance of the TPP negotiations, while representatives of U.S. corporations—like Halliburton, Chevron, PHRMA, Comcast, and the Motion Picture Association of America—are being consulted and made privy to details of the agreement. […] More than two months after receiving the proper security credentials, my staff is still barred from viewing the details of the proposals that USTR is advancing. We hear that the process by which TPP is being negotiated has been a model of transparency. I disagree with that statement”. In 2013, Senator Elizabeth Warren (D-Mass) and Rep. Alan Grayson (D-Fla.) were among a group of congressional lawmakers who criticized the Obama administration’s secrecy policies on the TPP. Warren reiterated her opposition in a speech and press release, And in December 2014 Presidential hopeful Senator Bernie Sanders denounced the TPP saying: “Let’s be clear: the TPP is much more than a “free trade” agreement. It is part of a global race to the bottom to boost the profits of large corporations and Wall Street by outsourcing jobs; undercutting worker rights; dismantling labor, environmental, health, food safety and financial laws; and allowing corporations to challenge our laws in international tribunals rather than our own court system. If TPP was such a good deal for America, the administration should have the courage to show the American people exactly what is in this deal, instead of keeping the content of the TPP a secret.”
Returning to the TTIP, Ms Kipping says “Even the registration procedure for the reading room speaks volumes. Once I’d registered, I was sent the instructions on how to use the room. The first thing that I noticed was that the terms and conditions had already been the subject of negotiations between the European Commission and the USA. Get your head round that: TTIP isn’t even signed yet, and already individual countries have lost the right to decide who gets to read the texts, and on what terms” and “It is revealing in itself that the Ministry for Economic Affairs is prepared to go to such lengths in order to keep the text of TTIP under wraps. And they have every reason for doing so. Anyone who was going into these negotiations to enhance environmental protection, consumer protection and labour standards would have nothing to fear from transparency. Anyone who’s engaged in selling out democracy, on the other hand, is obviously going to want to avoid public scrutiny. If Sigmar Gabriel and the negotiators are really so convinced of the benefits of TTIP, why don’t they just make the text available to everyone online?”