SavannaJeff

As someone that's that's specialized in trade (particularly negotiation and ISDS), I have trouble reconciling the views of groups like the EFF with my own academic knowledge. What specialists do you have on these topics that you feel you can authoritatively and with certainty comment critically on process like negotiations conducted in secret or ISDS? Aside from that, I have a question to both Lori Wallach and to Maira;

Maira: Note that I have my own reservations on these topics, but the EFF (and other tech oriented groups like techdirt) often comment on these topics forcefully and assign malice or ill-will on what are very well understood processes that have solid academic grounding. Secret negotiations are functionally no different to the concept of cabinet confidentiality, and even most regular legislation is drafted in-house and away from the public eye before being revealed, aside from calls for public submission and comment. How do you feel your comments are fair on matters such as the secrecy surrounding negotiations, in complete opposition to mainstream academic consensus (such as surrounding Putnam's two level game theory)?

Lori: I once reviewed Public Citizen's list of ISDS cases, and was shocked at how horribly biased and completely slanted away from reality it was. Cases that'd I'd spent upwards of fifty hours studying were portrayed in the most dishonest way imaginable (Vattenfall v Hamburg, or Ethyl v Canada immediately spring to mind). Do you feel it's justified and acceptable to mislead the public in an attempt to achieve your goals? And if so, how does that make the organization you represent fundamentally any better than the malign motives you assign to those behind the TPP and TTIP?

There certainly are legitimate criticisms to be made of both deals, of the process, and of ISDS. But do you not feel you're doing the public debate and the education of the masses a disservice in the relentless negativity you couch your language in?

Hi Maira, thanks for your time. To be clear, I was only commenting that negotiations conducted in secret is academic consensus, and I think your point on MNCs having 'privileged access to policymakers' with respect to the USTR is either a fundamental mischaracterization, or a fundamental difference in worldview. Nevertheless, I bow to your superior knowledge on IP issues, and starting an argument with you there is something I'd be bound to lose.

I loved what I saw of you at CopyCamp in Warsaw, by the way.

About the various TACs? Yes. There's nothing clandestine or shady about it, but if you're coming up with a deal that's going to change tens of billions of dollars in trade, then you definitely want to get a sense of how it would effect various stakeholders, and those stakeholders give input on those elements of a treaty. Joe Citizen generally doesn't have the knowledge, nor the expertise, nor the specialization, to be able to have a meaningful input into how a given provision would affect environmental standards, or consumer standards, or the steel industry, or the chemical industry. But just as representatives of key sectors are given some access, so too are environmental groups (under the TEPAC), labour groups ( under the LAC), consumer groups, etc. They're all under strict NDAs and security clearances. If they talk to people about it, they're going to get in some serious shit. It makes sense to have representatives of those most proportionally affected taking part in providing advice and sharing their expertise.

You act as if they're infiltrators, coming up to a buffet and trying to heap as much as they can for themselves. They're not, and I feel you both completely ignore the role of agency in the USTR, that has to balance competing opinions, analyses, and interests to try and come up with the most equitable agreement they can. The USTR controls who sees what, and what knowledge they should impart, not the other way around.

Mostly, I'm referring to this document

I guess the obvious case would be the Ethyl case, where Health Canada had conducted numerous analyses including a year or two before the ISDS case, and came to the conclusion that there was no harm in having MMT as an additive in petrol. It's a bit hard to justify a ban on the grounds of health concerns when a government's own health department doesn't support the ban. I mean, you guys don't even mention the Health Canada report, despite it being central to the case!

On the Occidental Petroleum case;

The tribunal held that the Farmout Agreement effected an assignment in violation of Ecuadorian law, since it was not approved by the Ecuadorian government. However, the tribunal held that the termination of the Participation Contract was a disproportionate response to Oxy’s assignment of rights under the Farmout Agreement.

As part of its proportionality analysis, the tribunal held that there were a number of alternatives to terminating the Participation Contract and that the latter should have thus been a measure of last resort. The tribunal also found that Ecuador did not suffer “any quantifiable loss as a direct result of AEC taking an economic interest in Block 15.”[3] Thus, the Caducidad Decree was disproportionate to its objective.

The Oxy case was basically the equivalent of expropriating someones house for jaywalking, yet if one were to look at the Public Citizen overview, one would think that the ISDS tribunal were making things up on the fly to screw the government, rather than the actual case which is completely acceptable and understandable in an arbitration.

It is kind of funny that you have such a different notion of what these cases are about, because even those who disagree with our critique of ISDS often compliment us for taking the time to get to the bottom of the facts of these cases given the press gets it wrong so often

The issue isn't the research. I fully concede you guys put a lot of time into that. The issue is the slant that you guys put on it, where you ignore crucial pieces of information (Health Canada's report), or misconstrue how important certain issues are to a case (proportionality).

Individual foreign investors have been elevated to the same status as a sovereign nation state to privately enforce a public treaty. Pretty grim stuff...

Is it? I don't automatically hold sovereignty to be an absolute good, and if it's used to cheaply discriminate against foreign investors (often representing tens of thousands, if not millions, of shareholders - whether via retirement accounts, mum and dad traders, or billionaires) for political points of favours, as has often been the case, then I see an enforcement mechanism for treaties being the preferable option.

I'm not sure why the proportion of corporate groups to NGOs is relevant. An environmental organizations interests are much more broad than that of a PVC manufacturer. A tech company's interests might touch on 1-2 chapters, whilst an environmental group might have a stake in over 10-11. Strict proportionality between public interest groups and corporate groups doesn't seem necessary, nor desirable. What should matter is their utility to the public, and to the USTR.

The USTR staffer declared in front of a room full of consumer groups and development advocates that he does not work for patients in Africa, his job was to pursue the interest of the U.S. pharmaceutical industry

I'm not going to question your word on this, that's pretty fucked up and inexcusable for that official and whoever told them that was their remit. But he does have a point, however inhumane that point is, that the USTR does not work for the good of the African people.