European politicians want more algorithmic transparency. However, they also want to sign the EU-Japan trade agreement, which restricts audits of software and algorithms. 1
For regulatory supervision we need access to source code. The Volkswagen emissions scandal has shown that devices can be programmed to mislead researchers. 2 In addition, audits can reveal whether decision making software contains biases. And Facebook’s role in elections and referendums shows that the use of personal data is not only a civil rights issue, but may compromise the integrity of our institutions.
The EU and Japan have concluded the legal scrub of the EU-Japan Economic Partnership Agreement (EPA). The council may already decide on ratification on 22 May 2018. No EU member state ratification is needed. Regarding cross-border data flows and data protection, a European Commission’s press release states that recent reforms of their respective privacy legislation offers new opportunities to facilitate data exchanges, including through a simultaneous finding of an adequate level of protection by both sides. But this is not the full story.
The EU Court of Justice declared that proactive filtering by internet access providers and internet hosting providers is illegal. 1 Yet, the EU copyright proposal includes such upload filtering. Over 80 organisations warn:
“The signatories warn the Member states that the discussion around the Copyright Directive are on the verge of causing irreparable damage to our fundamental rights and freedoms, our economy and competitiveness, our education and research, our innovation and competition, our creativity and our culture.”
To show the substance behind that sentence, the letter refers in an annex to 29 letters and analyses sent previously by various European stakeholders and experts for more details. A call to action
The European Parliament’s legal affairs committee will vote on the proposal on 25 January. Unfortunately, in this lead committee a significant majority is in favor of upload filters.
The European Commission has asked the EU council a mandate to open negotiations on a multilateral investment court. However, the accompanying impact assessment obscures environmental and social impacts. The council should refuse to provide the mandate. The European Commission published an impact assessment of a multilateral reform of investment dispute resolution. The current supranational system is known as investor-to-state dispute settlement or ISDS.
EU Court of Justice’s Advocate General (AG) Melchior Wathelet finds that investor-to-state dispute settlement (ISDS) agreements between EU countries are compatible with the EU treaties. (Opinion in the Achmea v. Slovak republic, the ruling of the Court will follow later.) ISDS gives private parties access to the supranational level to challenge government decisions. The AG sees the ISDS tribunal in question as a court or tribunal common to two EU Member States. Unfortunately, as I will explain below, in his Opinion the AG disregards known issues and options. I will argue that if the AG wouldn’t have disregarded these issues and options, he couldn’t have reached his conclusion.
London, 9th March 2017 – Companies across UK have expressed their opposition to an attempt to ratify the Unitary Patent treaty which is neither desirable for British software companies nor compatible with Brexit. They call for an urgent debate in the House of Lords and in the Scottish Parliament. After years of intense lobbying by large corporations, as well as their patent lawyers, progress was made towards a Unitary Patent Court (UPC) that would not only facilitate expansion of patent scope to software but also usher in so-called ‘patent trolls’. The Unitary Patent Court will have pan-european authority to impose injunctions, royalties for supposed damages from British companies. This represents an existential threat to many British companies, which foreign companies are hoping to thwart or cripple using patents.
This position paper is the attachment to the FFII submission to the public consultation on a multilateral reform of investment dispute resolution. (blog, pdf)
A multilateral investment court (MIC) would strengthen investments vis-à-vis democracy and fundamental rights. This undermines our values, ability to reform, and ability to respond to crises, including climate change. Investor-to-state dispute settlement (ISDS) gives private parties access to the supranational level. This discriminates against companies operating locally and comes with systemic issues which create a high risk of expansive interpretations of investors’ rights.
The European Commission has launched a consultation on an investor-to-state dispute settlement (ISDS) variant: a multilateral investment court. 1 The consultation is flawed; it is so narrow that social and environmental impacts may not show up in the consultation results. This is irresponsible, as the system as a whole will strengthen investments vis-à-vis democracy and fundamental rights. This undermines our values, ability to reform, and ability to respond to crises, including climate change. Mankind faces an existential threat and the commission buries its head in the sand.
Update: The European Parliament gave consent to CETA. It failed to defend democracy. Now national parliaments will have to decide on CETA. There may also be referendums and court cases. See also EDRi’s press release; procedure file; INTA report; roll call vote (point 1, A8-0009/2017).
This FFII position paper provides feedback on the inception impact assessment “Convention to establish a multilateral court on investment” (IIA). See below or the pdf. For the related consultation see here. The IIA’s baseline scenario – what will happen without policy changes – is just one sentence long and does not expect a multilateral investment court (MIC) to have social or environmental impacts. The paper presents more comprehensive baseline and multilateral investment court scenarios.
The European Commission has launched a consultation on an investor-to-state dispute settlement (ISDS) variant: a multilateral investment court. 1 In an email the commission confirms the consultation has a narrow scope. The commission does not want feedback on the system as a whole. This way the system’s social and environmental impacts may go unmentioned in the consultation results. This is irresponsible, as the system as a whole will strengthen investments vis-à-vis democracy and fundamental rights This undermines our values and ability to respond to crises, including climate change.