TTIP debate ‘too often polarised’

Manchester University politics lecturer Dr Gabriel Siles-Brügge has studied TTIP – the Transatlantic Trade and Investment Partnership – for some years, and a blog post he co-wrote in 2013 did much to propel the little known trade deal into the public eye. He talks to Zoe Johnson about the latest chapter in the TTIP saga, as well as introducing his latest book, co-authored by Ferdi de Ville. The book scrutinises the arguments both for and against what is arguably the most controversial trade deal in over a decade – and gives you everything you need to know about the TTIP deal and the debate it has ignited.

Why did you decide to write your book and why now?
Book-writing as an academic can sometimes be tricky: we’re often encouraged to hedge our bets and wait until the dust settles before writing a research article or book to avoid publishing something with a short shelf life. The danger of not writing a book while politics is unfolding, however, is that you risk not having any impact beyond a small circle of academics.

When my co-author Ferdi De Ville of Ghent University and I started writing the book in late 2014, we felt that there was already enough evidence out there to draw some conclusions about where TTIP was headed and what it meant for our political systems. We also felt that it was the right time to get involved in a debate that is still often far too polarised – with advocates claiming the deal is the best thing since sliced bread and some critics deriding it as the end of the world as we know it. Our aim in the book is to try to avoid polemics and to assess the impact of TTIP on the basis of a sober assessment of the evidence, such as available negotiating texts and interviews with negotiators and other policymakers. What we found was that despite some exaggeration of the agreement’s negative impact, there are important reasons to be concerned about the agreement’s impact on democratic decision-making, especially its provisions on regulatory coherence and cooperation.

What do you make of the suggested new Investment Court System that replaces the controversial Investor State Dispute Settlement (ISDS)?
This strikes me as nothing more than tinkering with a flawed system. Setting up a system of quasi-tenured arbitrators (or “judges”, in the parlance of the European Commission proposal) is preferable to having a system where these arbitrators are appointed ad hoc, in that it reduces, but does not eliminate, the risks of conflicts of interest as the “judges” derive some, if not all, of their income from a retainer fee rather than purely from arbitration costs.

“Protecting foreign investors ranks above other policy objectives.”

There is also improved transparency in the proceedings and some clarification of the relationship between the tribunal and domestic courts, which limits the potential for parallel claims, where investors bring suits in both domestic courts and arbitration tribunals. However, it’s still the case that protecting foreign investors ranks above other policy objectives. A state’s right to regulate is only a vaguely defined carve-out in Article 2 (paragraphs 1 and 2) and arbitrators have considerable discretion in interpreting provisions on investment protection widely, especially indirect expropriation and fair and equitable treatment. Of course, these provisions on investment protection are still better defined than in existing systems of investment protection as provided for in other member state bilateral investment treaties, which gives arbitrators slightly less leeway to interpret them in a foreign investor’s favour, but it still put foreign investor rights ahead of public policy objectives and makes it easier for them to challenge government policies that may put a dent in their bottom line.

Moreover, we should not forget that this is nothing but the European Commission’s own proposal. This would still have to be accepted by US negotiators, who have expressed scepticism over the proposed reforms and are much keener on the existing ad hoc model of arbitration.

Was the original ISDS proposal dropped because of the strength of campaigning?
I think this was certainly an important factor. The European Commission certainly was not expecting the level of opposition from civil society groups, especially in places like Germany, which in turn put pressure on elected officials to challenge what had until then been an obscure component of the international legal environment. When the European Parliament initially passed a TTIP resolution in 2013 it did not even mention ISDS. Fast-forward to 2015 and this was the key bone of contention in the European Parliament’s new resolution on TTIP.

Is the UK’s influence over the European Commission’s negotiating stance weakened by the forthcoming EU referendum?
TTIP is quite closely related to another EU programme – the Better Regulation Agenda – which, like TTIP, is about reducing the regulatory burden for big business and making it harder to regulate in the public interest. Both are precisely the things that the UK government is keen on as European initiatives and, in my opinion, this is one of the reasons both are being pursued with gusto by the current European Commission. It is not entirely a sop to Britain, but I would think it is certainly on policymakers’ minds in Brussels as they consider the broader political context of a possible Brexit.

“Civil society groups need to both engage in protest action but also engage directly with policymakers.”

How important is it for people to know about the implications of TTIP?
I would argue that knowing about TTIP is key. Trade policy has often been disguised as extremely technical and boring and yet, increasingly because of its impact on domestic regulatory processes, it has a bearing on our everyday lives, affecting the ability of governments to protect us from all manner of social, environmental and public health risks. In this vein, it is important to ensure that trade policymaking is not just left to technocrats but is openly debated and subjected to democratic scrutiny. In this vein, I think civil society groups need to both engage in protest action – to raise the political salience of the issue – but also engage directly with policymakers in an effort to craft more progressive trade policies.

What do you expect to come of the Global Justice Now anti-TTIP Day of Action on 10 October, and how do such events aid in raising the profile of the anti-TTIP cause?
The important thing at this stage is to keep up the momentum and pressure on politicians and policymakers as we enter a crucial phase in the negotiations. Negotiators want to move into the next stage of talks and start creating a “consolidated text” of the deal, involving proposals from both sides, and the US have just completed negotiations on the Trans-Pacific Partnership (TPP), which means they are more likely to engage with their European counterparts (word on the grapevine is that they had been holding back until those talks had been completed). It’s also important not to lose sight of another important trade agreement, CETA with Canada, which has been negotiated and is meant to be ratified this year. Most controversially, it includes a potentially more problematic form of ISDS than that the Commission is proposing (premised on the old model of ad hoc arbitration) and so is seen as a bit a test case for TTIP.

One thing I would stress is that while campaigners have focused a lot on the NHS and ISDS in the UK (and these issues are by no means unimportant), TTIP’s provisions on regulatory coherence and cooperation are even more significant. The EU is proposing to subject regulatory decision-making to more and more impact assessments premised on “competitiveness tests” and to scrutiny by stakeholders – for which, read business and “regulatory coherence” – and is proposing that the EU and the US have greater input into each other’s regulatory processes if these impact on transatlantic trade: “regulatory co-operation”. The potentially chilling effect of these proposals on the ability of governments to regulate in the public interest has not been discussed as much and needs further airing.

TTIP: The Truth about the Transatlantic Trade and Investment Partnership is published by Polity (£12.99)