Transatlantic Trade and Investment Partnership

TTIP includes chapters on market access for goods and services that aim to remove "custom duties on goods and restrictions on services, gaining better access to public markets, and making it easier to invest".[39] The goods part includes rules on market access for goods, agriculture and processed agricultural products, and rules of origin.[34][35]

For "Trade in Services, Investment and E-commerce", a draft text dated 7 July 2013 was leaked by the German newspaper, Die Zeit in March 2014. The leaked text contains seven chapters. In Chapter 1, Article 1 states the overall objective of "a better climate for the development of trade and investment", particularly the "liberalisation of investment and cooperation on e-commerce".[40]

Chapter II, Article 3 to Article 18 contains general principles for investment. Article 14 contains proposed rules that forbid governments to "directly or indirectly nationalise, expropriate" unless it is for a public purpose, under due process of law, on a non-discriminatory basis, with compensation.[41] Article 14(2) defines the necessary compensation as being "fair market value of the investment at the time immediately before the expropriation or the impending expropriation became public knowledge plus interest at a commercial rate established on a market basis".

Chapter III, Articles 19 to 23 contains rules on cross border supply of services.

Chapter IV, Articles 24 to 28 would allow free movement of business managers, and other employees of a corporation, for temporary work purposes among all countries party to the agreement.[42] Article 1(2) makes it clear, however, that no more general free movement of workers and citizens is allowed.

Chapter V contains eight sections with particular rules for different economic sectors. Section I, articles 29 to 31, set out principles that states must follow in licensing private corporations, and state that requirements that are not proportionate to a reviewable public policy objective are contrary to the treaty. Section II contains general provisions. Section III covers computer services. Section IV, articles 35 to 39, cover liberalisation of postal services.[43] Section V, articles 40 to 50, apply to electronic communications networks and services (including telecommunications) and mandate competitive markets, absence of cross-subsidies, subject to defined exceptions including in article 46 a right (but not a requirement) for countries to provide universal service.

Section VI of chapter V covers Financial Services, in articles 51 to 59. It limits the laws that governments can pass to regulate or publicly run insurance and banking. Any regulations that do not fall within the Treaty's terms and objectives would be unlawful.[44] Legitimate reasons for regulation include, in article 52, "the protection of investors, depositors, policy-holders or persons to whom a fiduciary duty is owed by a financial service supplier; (b) ensuring the integrity and stability of a Party's financial system". However article 52(2) states "measures shall not be more burdensome than necessary to achieve their aim",[45] and the Treaty does not include any further reasons to allow regulation. Section VII covers international maritime transport and section VIII covers air transport.

The Annex on "Investors-state dispute settlement" proposed to allow corporations to bring actions against governments for breach of its rights.[46] The European Commission launched a public consultation after the draft text was leaked, which led to a number of changes. However, an updated proposed text had yet to be made publicly available. In September 2015, the Commission proposed an "Investment Court System" to replace the ISDS clauses, with the scope for investor challenge much reduced and with "highly skilled judges" rather than arbitrators used to determine cases.[47]

"Improved regulatory coherence and cooperation by dismantling unnecessary regulatory barriers such as bureaucratic duplication of effort".[39]

Specific heads for discussion include:[34][35]

• Horizontal chapters:
  • Regulatory coherence[48][49]
  • Technical barriers to trade[50]
• Specific sectoral agreements:
  • Textiles[51]
  • Chemicals[52]
  • Pharmaceuticals[53]
  • Cosmetics[54]
  • Medical devices
  • Cars[55]
  • Electronics and information technology
  • Machinery and engineering
  • Pesticides
  • Sanitary and phytosanitary measures (SPS)[56]—i.e., barriers to trade in food and agricultural products

"Improved cooperation when it comes to setting international standards".[39]

Specific heads for discussion include:[34][35]

• Energy and raw materials[57][58]
• Trade and Sustainable Development / Labour and Environment[59]
• Public procurement[60]
• Intellectual property[61]
  • Geographical indications
• Competition policy: antitrust and mergers
  • Treatment of state-owned or subsidised companies vis-a-vis private companies
• Small and medium-sized enterprises (SMEs)
• Trade remedies: e.g., anti-dumping practices
• Customs and Trade Facilitation

• Dispute settlement (between the parties, not investor-state dispute settlement)

The TTIP Agreement texts are being developed by 24 joint EU-US working groups, each considering a separate aspect of the agreement. Development typically progresses through a number of phases. Broad position papers are first exchanged, introducing each side's aims and ambitions for each aspect. These are followed by textual proposals from each side, accompanied (in areas such as tariffs, and market access) by each side's "initial offer". These negotiations and draft documents can evolve (change) through the various stages of their development. When both sides are ready, a consolidated text is prepared, with remaining differences for discussion expressed in square brackets. These texts are then provisionally closed topic by topic as a working consensus is reached. However the agreement is negotiated as a whole, so no topic's text is finalised until full consensus is reached.[62]

Negotiations are held in week-long cycles alternating between Brussels and the US.[63] The negotiators were hoping to conclude their work by the end of 2016.[64]

• The 1st round of negotiations: 7–12 July 2013 in Washington, DC
• The 2nd round of negotiations: 11–15 November 2013 in Brussels
• The 3rd round of negotiations: 16–21 December 2013 in Washington, DC
• The 4th round of negotiations: 10–14 March 2014 in Brussels
• The 5th round of negotiations: 19–23 May 2014 in Arlington, Virginia
• The 6th round of negotiations: 13–18 July 2014 in Brussels
• The 7th round of negotiations: 29 September – 3 October 2014 in Chevy Chase, Maryland
• The 8th round of negotiations: 2–6 February 2015 in Brussels
• The 9th round of negotiations: 20–24 April 2015 in New York
• The 10th round of negotiations: 13–17 July 2015 in Brussels
• The 11th round of negotiations: 19–23 October 2015 in Miami
• The 12th round of negotiations: 22–26 February 2016 in Brussels
• The 13th round of negotiations: 25–29 April 2016 in New York
• The 14th round of negotiations: 11–15 July 2016 in Brussels
• The 15th round of negotiations: 3–7 October 2016 in New York

Only a few people can access the documents known as "consolidated texts", the drafts containing the most recent results of the negotiations. On the European side, authorised readers include the European Commission negotiators (most of them from the Directorate-General for Trade), MEPs and European Union members' MPs.[65] Upon the insistence of the US, the documents are not transmitted any more as electronic or even printed documents.[5] They are only available in secure rooms at the European Commission HQ in Brussels, in a number of US embassies,[5] and at the offices of member states' trade ministries.[65] In all these secured rooms phones or other types of scanning device are forbidden.[5] Blank sheets of paper, marked with the reader's names, are provided on which visitors can jot down their notes.[65] On the US side, the procedure is similar: only Senators and USTR negotiators may access the documents and must comply with similar conditions.[5] The US side has insisted on the same security arrangements for the drafts of the Trans-Pacific Partnership proposal.[5]

The negotiations were planned to be finalized by the end of 2014, but according to economist Hosuk Lee-Makiyama, at least another four or five years of negotiations remained at the end of that year.[66] In November 2014 the Bulgarian government announced that it will not ratify the agreement unless the United States lifted visa requirements for Bulgarian citizens.[67]

German Vice Chancellor and Economy Minister Sigmar Gabriel said that free trade talks between the European Union and the United States have failed, citing a lack of progress on any of the major sections of the long-running negotiations. "In my opinion the negotiations with the United States have de facto failed, even though nobody is really admitting it" the German broadcaster Zweites Deutsches Fernsehen quoted the minister, according to a written transcript of an interview aired on 28 August 2016. "[They] have failed because we Europeans did not want to subject ourselves to American demands."[68]

Negotiation progress as of 27 April 2016:[64][69]

The content of the drafts of agreement, as well as the reports on negotiation rounds, are classified from the public, an arrangement that The Independent criticised as "secretive and undemocratic".[16] As noted above, elected representatives may only view the texts in a secure "reading room" in Brussels, to avoid any further leaks of information about TTIP negotiations into the public domain.

To answer the criticism, and months after their leaks by Greenpeace, the European Commission has made negotiation documents public, including all EU proposals in the regulatory and rules components of the agreement.[64][76][77] The Trade Commissioner has described the negotiations as "the most transparent trade talks ever conducted by the EU".[78]

The Guardian described TTIP as "the most controversial trade deal the EU has ever negotiated".[18] TTIP negotiations are criticized and opposed by some unions, charities, NGOs and environmentalists, particularly in Europe.[14][15] The Independent summarizes the negative impact of TTIP as "reducing the regulatory barriers to trade for big business, things like food safety law, environmental legislation, banking regulations and the sovereign powers of individual nations",[16] or more critically as an "assault on European and US societies by transnational corporations".[16] German economist Max Otte stated that the proposed (ISDS) court of arbitration and protection of foreign investment would mean a "complete dis-empowerment of politics"[19] and that, regarding labour economics, free trade agreements typically enforce lower standards and that TTIP would put European workers into direct competition with Americans (and in effect because of the North American Free Trade Agreement with Mexicans), which would impact European social models.[19] Otte also concluded: "We really don't want the social system of these countries [United States and Mexico] here [in Europe]."[19]

An October 2014 study by Jeronim Capaldo of the Global Development and Environment Institute at Tufts University indicates that there will be losses in terms of net exports, net losses in terms of GDP, loss of labour income, job losses, reduction of the labour share, loss of government revenue and higher financial instability among European countries.[79]

Anti-poverty group Global Justice Now asserts that TTIP would undermine job security as well as current minimum labour standards agreed in the EU.[80] British Labour Party politician John McDonnell, Shadow Chancellor of the Exchequer, has described TTIP as resulting in a huge transfer of powers to Brussels and corporate interests that will bring about a form of "modern-day serfdom".[80] According to a European Parliament report, impacts on labour conditions range from job gains to job losses, depending on economic model and assumptions used for predictions.[13]

In spite of a study by the Munich-based Ifo Institute for Economic Research (on behalf of the German Federal Ministry of Economics) claiming that up to 400,000 jobs could be created in the EU by TTIP,[81] Stefan Körzell, national board member of the Confederation of German Trade Unions (DGB) has said "Whether TTIP can create jobs, and 'how many' and 'where' is unclear. Previous studies, ranging from those conducted by the European Commission across to the expertise of the Ifo Institute, fluctuate between optimism and very low expectations... Consideration of the negative consequences trade agreements can have, if environmental or labour standards are ignored, is often omitted. As of August 2015, the US had ratified two (prohibitions of child labour and slavery) of the eight ILO core labour standards."[82]

Investor-state dispute settlement (ISDS) is an instrument that allows an investor to bring a case directly against the country hosting its investment, without the intervention of the government of the investor's country of origin.[83] From the late 1980s, certain trade treaties have included provisions for ISDS that allow foreign investors who claim to have been disadvantaged by actions of a signatory state, to sue that state for damages in a tribunal of arbitration. More recently such claims have increased in number and value,[84] and some states have become increasingly resistant to such clauses.[85]

Critics of TTIP say that "ISDS provisions undermine the power of national governments to act in the interests of their citizens",[14] that "TTIP could even undermine the democratic authority of local government",[17] and that it threatens democracy.[86] France and Germany have said that they want access to investor-state dispute settlement removed from the TTIP treaty.[87] In December 2013, a coalition of over 200 environmentalists, labor unions and consumer advocacy organizations on both sides of the Atlantic sent a letter to the USTR and European Commission demanding the investor-state dispute settlement be dropped from the trade talks, claiming that ISDS was "a one-way street by which corporations can challenge government policies, but neither governments nor individuals are granted any comparable rights to hold corporations accountable".[88][89] Some point out the "potential for abuse" that may be inherent in the trade agreement due to its clauses relating to investor protection.[90][91] A recent study shows that investor-state dispute settlement (ISDS) indeed generates strikingly large and consistent opposition to the trade agreement and this effect of dispute settlement characteristic cuts across individuals’ key attributes, including skill levels, information, and national sentiment, which have been viewed as key determinants of trade attitudes.[92]

In December 2013, Martti Koskenniemi, Professor of International Law at the University of Helsinki, warned that the planned foreign investor protection scheme within the treaty, similar to World Bank Group's International Centre for Settlement of Investment Disputes (ICSID), would endanger the sovereignty of the signatory states by allowing for a small circle of legal experts sitting in a foreign court of arbitration an unprecedented power to interpret and void the signatory states' legislation.[93]

Faced with such broad and vociferous criticism, ISDS was abandoned in September 2015; in its place, the European Commission proposed an Investment Court System (ICS).[94][95] Not long afterwards, ICS was declared illegal by the German Association of Magistrates,[96] though the commission dismissed the magistrates' judgement as based on a misunderstanding.[97] For its part, the United States wants ISDS reinstated.[97]

In February 2016, Labour (UK) leader Jeremy Corbyn said that human rights should be part of TTIP, describing TTIP as a threat to national sovereignty, workers, consumers, health and the environment.[98]

According to a report in The Guardian, TTIP draft leaked in 2016 shows "irreconcilable" differences between EU and the US in some areas, with the US demanding that EU compromise its "environmental, consumer protection and public health standards".[6]

British unions such as Unite and the TUC have opposed TTIP on the grounds that it would undermine the UK's National Health Service (NHS) and allows for the further privatisation of public services. A Unite spokesperson described TTIP as "about deregulation and a race to the bottom on standards. Unison has fought and won on bringing services back into the public sector. ... We cannot allow TTIP to threaten those successes."[99]

Former Foreign Secretary David Owen said that TTIP would have a significant negative impact on the NHS because the Service would be subject to increased competition under the TTIP regime.[100]

Former UK prime minister David Cameron said that critics of free-trade should not use the NHS to take people's attention away, and honestly speak about trade deals. UK's Department of Business, Innovation and Skills said that TTIP provided adequate protection for UK's NHS.

Assistant General Secretary of Unite Gail Cartmail said that TTIP was a real and serious threat to the NHS, adding that the threat would not be neutralised unless David Cameron gave a cast-iron guarantee that he would exclude the NHS from TTIP.

Documents released in May 2015 showed that US negotiators had pressured the EU over proposed pesticide criteria. A number of pesticides containing endocrine disrupting chemicals were forbidden in draft EU criteria. On 2 May 2013, US negotiators insisted the EU drop the criteria. They stated that a risk-based approach should be taken on regulation. Later the same day Catherine Day (Secretary-General of the European Commission) wrote to Karl Falkenberg (Director General for the Environment) asking for these criteria to be removed.[101] As of 2015, 82 pesticides used in the US were banned in Europe and US animal welfare standards are generally lower than those in Europe.[102]

A columnist in The Guardian stated that food safety in the EU might be compromised because of low or different standards in US food regulations,[14] if currently EU-banned food were allowed to be imported.[80] In June 2015, the BBC reported that food safety had become "a stumbling block" because of differing US and EU attitudes to genetically modified crops, pesticides (endocrine disrupting chemicals), growth promoting hormones in beef and pathogen reduction treatments of chicken, that cause public health concerns for consumers and put European farmers at a cost disadvantage.[102] Ban on animal testing in the EU has been described by The Guardian as "irreconcilable" with the US approach.[6]

A draft of the sustainable development section of TTIP was leaked to The Guardian in October 2015. Asked to comment on the document, a French environmental attorney described the proposed environmental safeguards as "virtually non-existent" by comparison with the protection granted to investors, and that environmental cases accounted for 60% of the 127 ISDS cases already brought against EU countries under bilateral trade agreements in the last two decades, according to Friends of the Earth Europe.[103] According to Joseph E. Stiglitz, TTIP could have a "chilling" effect on regulation and thus "undercut urgently needed action on climate that the Paris agreement requires". He says that industries that do not pay for the "social costs" of pollution in effect receive hidden subsidies, and that TTIP would give companies many more opportunities to sue governments over environmental protection mechanisms.[104]

The draft energy chapter of the TTIP was leaked to The Guardian in July 2016.[105] According to The Guardian, this draft could "sabotage" European efforts to implement mandatory energy savings measures and to favor the switch to renewable electricity generation. The draft text obliges the two trade blocs to: "foster industry self-regulation of energy efficiency requirements for goods where such self-regulation is likely to deliver the policy objectives faster or in a less costly manner than mandatory requirements".[105] The draft also mandates that operators of energy networks grant access to gas and electricity "on commercial terms that are reasonable, transparent and non-discriminatory, including as between types of energy".[105] This would open feed-in tariff schemes to commercial challenge, including that used by Germany. The Green MEP Claude Turmes stated: "These proposals are completely unacceptable. They would sabotage EU legislators' ability to privilege renewables and energy efficiency over unsustainable fossil fuels. This is an attempt to undermine democracy in Europe."[105]

The EU's draft text for the trade and sustainable development chapter was also leaked to The Guardian in July 2016.[106] The draft, dated 23 June 2016 and marked "restricted", reveals new loopholes on a G20 pledge to phase out inefficient fossil fuel subsidies by 2025. The IMF estimates these subsidies run globally at $10 million per minute[107] and G7 ministers pledged to remove them in May 2016 in a meeting in Japan.[108] The draft however states that "such a phasing out may take into account security of supply considerations".[106] The Guardian believes that this passage could be open to abuse and used to slow the phase out of subsidies.

According to critics, TTIP could weaken the stricter bank regulations that are governing banks in the United States as part of the financial reforms that followed the financial crisis of 2007–08.[16][109]

Critics of TTIP argue that its proposals on intellectual property and user privacy could have a similar effect as the EU-rejected Anti-Counterfeiting Trade Agreement (ACTA).[109] The Electronic Frontier Foundation and its German counterpart, FFII, in particular, compared TTIP to the ACTA.[110]

"Stop TTIP" campaigners hand 3,284,289 signatures to Martin Schulz, President of the European Parliament, November 2015.

In March 2013, a coalition of digital rights organisations and other groups issued a declaration[111] in which they called on the negotiating partners to have TTIP "debated in the US Congress, the European Parliament, national parliaments, and other transparent forums" instead of conducting "closed negotiations that give privileged access to corporate insiders", and to leave intellectual property out of the agreement.

In 2014, an online consultation conducted by the European Commission[112] received 150,000 responses. According to the commission, 97% of the responses were pre-defined, negative answers provided by activists.[113][114] Additionally, hundreds of demonstrations and protests have taken place in an organised "day of action" on 11 October 2014,[115][116][117] and again on 18 April 2015.[118][119][120] In February 2016, Greenpeace activists blocked secret talks on the Investment Court System.[121]

A self-organised European Citizens' Initiative against TTIP and CETA has also been established, acquiring over 3.2 million signatures within a year.[21][22]

In April 2016, then-President Barack Obama visited UK, and more than 130,000 people signed a petition organised by political activism group 38 Degrees, urging Obama to stop negotiating TTIP.[122] The group planned to send an open letter to Obama to urge Obama to oppose the pact, saying that TTIP would be a threat to NHS, food standards, animal welfare and democracy because it 'gives corporations more power than people'.[122]

In 2016, Greenpeace published 248 pages of classified documents from the TTIP trade negotiations.[123] Greenpeace Netherlands said it released the documents "to provide much needed transparency and trigger an informed debate on the treaty".[124]

From both the European and American sides of the agreement, there are issues which are seen as essential if an accord is to be reached. According to Leif Johan Eliasson of Saarland University, "For the EU these include greater access to the American public procurement market, retained bans on imports of genetically modified organisms (GMO) crops and hormone treated beef, and recognition of geographic trademarks on food products. For the United States they include greater access for American dairy and other agricultural products (including scientific studies as the only accepted criteria for SPS policies)." He observes that measures like the EU ban on hormone treated beef (based as they are on the precautionary principle) are not considered by the WTO to be based on scientific studies.

Eliasson further states that US objectives in a deal include "tariff-free motor vehicle exports", and retained bans on foreign contractors in several areas", including domestic shipping (see Merchant Marine Act of 1920).[125] Already, some American producers are concerned by EU proposals to restrict use of "particular designations" (also known as PDO or GI/geographical indications) that the EU considers location-specific, such as feta and Parmesan cheeses and possibly Budweiser beer.[126][127] This has provoked debate between European politicians such as Renate Künast and Christian Schmidt over the value of the designations.[128]

At French insistence, trade in audio-visual services was excluded from the EU negotiating mandate.[129] The European side has been pressing for the agreement to include a chapter on the regulation of financial services; but this is being resisted by the American side, which has recently passed the Dodd–Frank Act in this field.[130] US Ambassador to the European Union Anthony L. Gardner has denied any linkage between the two issues.[131]

European negotiators are also pressing the United States to loosen its restrictions on the export of crude oil and natural gas, to help the EU reduce its dependence on energy from Russia.[132]

Karel De Gucht responded to criticism in a Guardian article in December 2013,[133] saying "The commission has regularly consulted a broad range of civil society organisations in writing and in person, and our most recent meeting had 350 participants from trade unions, NGOs and business" and that "no agreement will become law before it is thoroughly examined and signed off by the European parliament and 29 democratically elected national governments – the US government and 28 in the EU's council"[134] However, the Corporate Europe Observatory (cited in the original Guardian article) had pointed out, based on a Freedom of Information request, that "more than 93% of the Commission's meetings with stakeholders during the preparations of the negotiations were with big business". They characterized the industry meetings as "about the EU's preparations of the trade talks", and the civil society consultation as "an information session after the talks were launched".[135]

• EU negotiations site
• EU negotiating texts in TTIP
• European Commission, DG Trade – In focus Transatlantic Trade and Investment Partnership (TTIP)
• USTR Transatlantic Trade and Investment Partnership

• The Politics of Transatlantic Trade Negotiations, by Jean-Frederic Morin, Tereza Novotna, Frederik Ponjaert and Mario Telò, Routledge, 2015
• Towards an EU-US trade and investment deal, European Parliamentary Research Service, 11 July 2014
• The Transatlantic Trade and Investment Partnership, UK House of Lords European Union Committee report, 6 May 2014
• The Transatlantic Colossus: Global Contributions to Broaden the Debate on the EU-US Free Trade Agreement A collaborative publication with over 20 articles on the global implications of the TAFTA | TTIP, Berlin Forum on Global Politics, December 2013
• The Transatlantic Trade and Investment Partnership – Defensive Move or Constructive Engagement A Research Based Documentary placing the TTIP negotiations in a global context produced by the Institut d'Etudes Européennes of the Université Libre de Bruxelles, 19 March 2014
• The Transatlantic Trade and Investment Partnership: A Charter for Deregulation, an Attack on Jobs, an End to Democracy, Rosa Luxemburg Stiftung, Brussels Office, February 2014
• / Free Trade: Project of the Powerful, Rosa Luxemburg Stiftung, Brussels Office, May 2014
• / Politics at a standstill, Katapult Magazine, 11. March 2014
• TTIP: Are 40 Cents a Day Big Gains?, Center for Economic and Policy Research, August 2015

• TTIP: What lies beneath (European Parliament Greens/EFA Group)
• TTIP (American Chamber of Commerce to the European Union)
• The Trans-Atlantic "Free Trade" Agreement (TAFTA) (Public Citizen) (US)
• No TTIP (UK umbrella organisation)
• EU/US Trade & Investment (British American Business) – backers of the UK All Party Parliamentary Group for EU-US Trade & Investment
• Trade Leaks (TTIP negotiation documents)