TTIP and the art of negotiation

John Kane
on : 
19th Jun 2015
Bulletin item expiry date: 
9th Sep 2015

The EU negotiators are supposed to be trying to get the best deal for the public. Are they really trying to get the best deal from the public?

Negotiations for the proposed Transatlantic Trade and Investment Partnership (TTIP) are slowly starting to make their way out of the business papers and into the mainstream news. As public awareness of the negotiations grows, the sheer extent of its potential impact is becoming clear. Certain aspects of the treaty have come under scrutiny for their possible effects upon areas such as public service provision and trades union rights. People are beginning to question who will benefit from such a comprehensive agreement. However, the strongest focus of popular opposition has been the Investor-State Dispute Settlement (ISDS) provision.

If agreed, ISDS would grant the right to corporations to sue governments in special private corporate courts, unaccountable to national governments or electorates, and totally inconsistent with the idea that justice must be seen to be done. Corporate counsels would take turns at representing and adjudicating cases, a clear conflict of interest. The official justifications for the inclusion of ISDS in the treaty are weak, quoting “abusive or arbitrary treatment of EU and US investors in each other's territory” and ”expropriation of foreign investments without compensation”, neither of which are serious problems in relations between the EU and US. It’s not difficult to understand the ire that accompanies revelations of such clear violations of established expectations of the justice system.

It is becoming clear from the nature of their public statements that EU negotiators are engaged in a process of selling the treaty, including ISDS, to the EU population. In other words, they are negotiating not just with the US but with us. This has important implications in how we should view the negotiators’ position on the treaty, and specifically the ISDS provision. ISDS is beginning to look like a lightning rod for the entire treaty, attracting all of the glare and heat whilst providing protection for the edifice beneath. Opponents of the treaty cannot afford to fall for this distraction.

What is the value of ISDS to the supporters of TTIP? If we look at the current situation we can see that it is already easy for companies to sue the UK government. A cursory web search returns suits by such upstanding corporate citizens as energy company Drax - owners of one of Europe's most polluting power plants - tobacco giant Philip Morris and even an Iranian bank. Whilst ISDS may make it less difficult to sue the government, it’s clear that there is no real obstacle to doing so now. So why all the fuss about the inclusion of ISDS, and why are the EU negotiators so keen to appear to defend its inclusion?

The stance makes perfect sense when we consider EU negotiators as salesmen for the treaty.. ISDS has provided a convenient focus for campaign groups to attract public interest in TTIP. The arguments for it are unconvincing to the point of spuriousness. The arguments against it are easily set out, and speak to peoples’ inherent sense of fairness. As such, it has attracted a large share of the public opposition to the treaty. But crucially, it is of little real value to the proponents of the treaty.

ISDS has all of the hallmarks of a crafted concession – a gimmick added into the negotiations at the start, with the express intention of bargaining it away later. It is designed to draw the lightning of the campaign groups and drain the energy of the opposition when it is conceded. Meanwhile the real business of TTIP continues in the background, and the bulk of the treaty will be expected to be waved through in the aftermath of the concession. Provisions such as the “living document” clause, which is designed to reserve power to the unelected negotiators to alter the treaty in future, may escape attention if we fall for this.

Opponents of TTIP must be aware of this tactic and begin work now to counter it. We must use the increased awareness of TTIP as an opportunity to bring the other aspects of the treaty into the public debate and provide a broader front of opposition. We must ensure that the full scope of the treaty, and its potential impact on everyday life is exposed to scrutiny. Above all, we must make sure that we do not rely solely upon opposition to ISDS to mobilise opposition to TTIP.