About a year ago I requested documents regarding the negotiations on the EU – South Korea trade agreement, provisionally applied since July 2011 and formally ratified in December 2015. I was especially interested in documents regarding the negotiations on intellectual property rights, specifically the documents regarding criminal enforcement. On 24 November 2017 the European Commission provided a link to the partially declassified “Recommendation from the Commission to the Council”. The commission did not declassify the interesting part, the directives for the negotiations. I recently received a list of 15 documents (Annex 1); eight documents are withheld; I received seven partially disclosed documents (zip).
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 Netherlands has published a new model bilateral investment treaty (BIT). It gives multinationals far reaching rights to challenge government decisions and it places its enforcement mechanism (investor-to-state dispute settlement or ISDS) under U.S. and Dutch influence. Enforcement mechanism
The most remarkable change is that all members of ISDS tribunals would be appointed by an appointing authority, the secretary-general of ICSID or the secretary-general of the Permanent Court of Arbitration (article 20). Both are not judges. The International Centre for Settlement of Investment Disputes (ICSID) is part of the World Bank.
The secretly negotiated EU-Japan trade agreement’s intellectual property (IP) chapter limits possibilities for copyright and patent reform. With the agreement, the EU exports part of its IP system. Local rules become binding international rules. Societies need policy space for reform. 1 The exclusive nature of copyrights, patents and other so called intellectual property rights impedes access to medicine and cultural goods, and harms independent and follow up innovation; copyright isn’t fit for the digital age.
The European Commission has published the final text of the EU-Singapore trade agreement. 1 Chapter eight contains implicit and explicit cross-border data flow commitments, with insufficient safeguards. This makes the agreement incompatible with the EU fundamental right to data protection. Noteworthy, a few months ago the EU commission adopted a new, stronger, data protection safeguard for use in trade agreements. The EU-Singapore trade agreement text does not contain this stronger safeguard.
On 31 January, the European Commission agreed on new plans for cross-border data flows and personal data protection in trade negotiations. Cross-border data flows are a difficult issue. Companies want them. The EU wants to open foreign markets for its strong services industry. But data protection is a fundamental right in the EU; it has to be protected also in cross-border data flows.
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.