CETA and mass surveillance

In February 2016 the European Commission and Canadian government published the final draft text of the EU – Canada trade agreement (CETA). Before that the Court of Justice of the EU in October 2015 invalidated the Safe Harbour framework that allowed the transfer of European citizens’ data to the United States. The Court confirmed that cross border data transfer frameworks need robust privacy safeguards. However, during the legal scrub the European Commission did not make the CETA text compatible with the Court’s Safe Harbour ruling. This incompatibility exposes our privacy to interference.

EU consultation on IP enforcement; FFII submission

The European Commission has launched a consultation on the intellectual property rights enforcement directive (IPRED). The European Digital Rights initiative (EDRi) explains:

“Injunctions, internet blocking, blackmailing of individuals accused of unauthorised peer-to-peer filesharing — the so-called IPRED Directive has been very controversial. Now, the European Commission has launched a consultation on the Directive (…) The consultation is of great importance not only to those working on copyright or ‘intellectual property rights’ in general, but in fact crucial to anyone using the Internet.” Indeed! EDRi has prepared a very helpful answering tool.

CETA: Who pulled the plug on the right to regulate?

The European Commission published the text of the draft EU-Canada trade agreement (CETA), which includes an investor-to state dispute settlement (ISDS) section. According to an Inside U.S. Trade’s World Trade Online article Canada succeeded in “changing the language from the EU’s TTIP proposal in a way that sources on both sides of the debate agreed would provide less protection for governments against challenges by investors.” The article reports that U.S. Chamber of Commerce’s Sean Heather argued that the CETA changes to the right to regulate show that the Canadian government rejected the EU’s previous approach. However, an alternative explanation is possible. A few weeks earlier the commission published the text of the EU-Vietnam agreement.

EU commission goes into denial mode regarding effect ISDS on software patents

Companies could use investor-to-state dispute settlement (ISDS) in trade agreements to challenge refusals to grant software patents, FFII’s Benjamin Henrion argued during the 24 February 2016 TTIP stakeholder’s presentations. Successful challenges could undermine the European Patent Convention’s exclusion of software, the recent US Supreme Court’s limits on patentability, and Congressional patent reform. Henrion noted that the SME where he worked had to fire ten software developers after a major customer was attacked by a patent troll and discontinued a project. US research shows that patent trolls cost defendant firms $29 billion per year in direct out-of-pocket costs; in aggregate, patent litigation destroys over $60 billion in firm wealth each year. In 2005 the European Parliament overwhelmingly rejected the software patents directive proposal.

EU-Vietnam ISDS not conform European Parliament resolution

The European Commission today published the negotiated text of the EU – Vietnam FTA. The investment and investor-to-state dispute settlement (ISDS) chapter is not conform the European Parliament 8 July 2015 resolution. ISDS gives foreign investors the right to challenge state decisions outside local courts. The draft FTA does not meet the conditions the European Parliament formulated in its resolution, paragraph 2 (d) (xv); it

– does not provide for independent professional judges as the proposal lacks various institutional safeguards for independence, such as fixed salary and prohibition of outside remuneration; [1]
– does not ensure that foreign investors will not benefit from greater rights than domestic investors; [2]
– is not subject to democratic principles and scrutiny, as the Parliament will not be able to change the rules later on; [3]
– undermines the jurisdiction of courts of the EU and of the Member States, as foreign investors can by-pass them;
– does not ensure that private interests cannot undermine public policy objectives. [4]

In a crucial aspect the proposal is worse than the current practice of the member states’ stand-alone investment treaties from which it is possible to withdraw: we can not expect the EU to withdraw from trade agreements.

Bernd Lange accepts perverse incentives in ISDS

Bernd Lange, chair of the European Parliament international trade committee, has sent a letter to EU trade commissioner Cecilia Malmström regarding the EU commission’s investor-to-state dispute settlement (ISDS) reform proposal. His letter shows that he overlooks many deficiencies in the commission’s proposal, among them perverse incentives. The proposed system lacks integrity and would undermine our values. I will go through his letter line by line. “Dear Commissioner, dear Cecilia,

On the 8th of July 2015 the European Parliament adopted a resolution with the European Parliament’s position on the TTIP negotiations.

TPP: rigged ISDS

New Zealand has published the text of the Trans-Pacific Partnership (TPP). Ongoing analysis, subject to updates:


Investor-to-state dispute settlement (ISDS) places investment tribunals above states, above democracies. This places the development of law beyond democratic scrutiny. At a national level, parliaments can change laws that do not work out well. This is not possible at the supranational level.

EU commission ISDS proposal a threat to democracy and civil rights

The commission has tabled its investor-to-state dispute settlement (ISDS) reform proposal for discussion with the United States and published it on 12 November 2015. Summary

This analysis concludes that the commission’s proposal would undermine democracy, civil rights, and the rule of law. The proposal contains neither exhaustion of local remedies, nor a wide margin of appreciation for states, lacks various institutional safeguards for judicial independence – leading to perverse incentives – , gives greater procedural rights to foreign investors, includes substantive rights open to broad interpretation, and contains a “right to regulate” that does not protect against unlimited backward looking damages including expected profits and interests. Unlimited damages and the threat of such damages have a chilling effect on policy makers, compromise the independence of officials, and could force a state to revise a regulation or decision as part of a settlement. The commission’s proposal would place investment tribunals above states, above democracies.

Can TTIP Protect European Creativity?

On 4 June 2015 the European Liberal Forum (ELF) organised a discussion on TTIP and the creative industries: Can TTIP Protect European Creativity? [1] TTIP is the trade agreement with the US under negotiation. ELF now posted some pictures on Facebook summing up the discussion: one, two, three, four, five. This of course can not capture the richness of the debate. To add some context, here are my talking points:

Patents and copyrights are monopolistic rights.

EU Parliament resolution on TTIP is a diplomatic blunder

Today the European Parliament adopted a non-binding resolution on the trade agreement with the United States (TTIP). Based on this resolution we could have a discriminating and expansive investor-to-state dispute settlement (ISDS) system, rigged to the advantage of the United States. A diplomatic blunder. (adopted ISDS amendment)

First, discrimination. ISDS gives foreign investors — and only foreign investors — the right to bypass local courts and challenge governments before supranational investment tribunals.