The Ecologist | 17 June 2016
TISA ’free trade’ deal to force draconian social, environmental, financial deregulation
by Pete Dolack / Systemic Disorder
A leaked text from the ’Trade In Services Agreement’ negotiations shows that TISA is set to unleash a massive wave of deregulation affecting social, environmental and financial standards, and force the privatisation of state-run enterprises, writes Pete Dolack. So it’s not just TTIP, CETA and TPP we have to fight - TISA could be the biggest corporate power grab of them all.
The most secret of the international ’free trade; agreements being negotiated around the world is the Trade In Services Agreement, which also might be the most draconian yet.
If TISA were to go into effect, regulation of the financial industry would be effectively prohibited, privatisations would be accelerated and social security systems would potentially be at risk of privatisation or elimination.
It is being promoted as the right to hire the accountant or engineer of your choice, but in reality is intended to enable the financial industry to run roughshod over countries around the world.
TISA is being negotiated in secret by 50 countries, with the unaccountable European Commission representing the 28 EU countries. Among the other countries negotiating are Australia, Canada, Japan, Norway, Mexico, New Zealand, Switzerland, Turkey and the United States.
Earlier leaks have revealed that Internet privacy and net neutrality would become things of the past under TISA. European rules on privacy, much stronger than those found in the United States, for example, would be eliminated. Further, any rule that in any way mandates local content or provides any advantage to a local technology would also be illegal, locking in the dominance of a handful of US Internet companies.
The latest snapshot of the ongoing TISA negotiations is provided by WikiLeaks, which released several chapters on May 25.
Say goodbye to your retirement
Among the portions of TISA published by WikiLeaks in its latest publication is the financial services annex. Articles 1 and 2 of the annex are unchanged from an earlier leak in 2014 - there are no limits on what constitutes covered ’financial services’.
Article 2 specifically references central banks, social security systems and public retirement systems. It is unclear how these would be affected, but it is possible that TISA could be interpreted to mean that no public or other democratic check would be allowed on central banks and that public systems such as Social Security might be judged to be illegally ’competing’ with private financial enterprises.
Financiers around the world would dearly love to get their hands on social security systems, a privatisation that would lead to disaster, as has already been the case with Chile, also a TISA participant. Chileans retiring in 2005 received less than half of what they would have received had they been in the old government system.
Some of the provisions in TISA’s financial services annex includes:
- Requirements that countries must conform their laws to the annex’s text (the US and EU are proposing the most draconian language) (annex Article 3).
- A prohibition on ’buy local’ rules for government agencies (Article 7).
- Prohibitions on any limitations on foreign financial firms’ activities (Articles 9 and 12).
- Bans on restrictions on the transfer of any data collected, including across borders (Article 10).
- Prohibitions of any restrictions on the size, expansion or entry of financial companies and a ban on new regulations, including a specific ban on any law that separates commercial and investment banking, such as the equivalent of the U.S. Glass-Steagall Act. Only one country, Peru, opposes this. (Article 14).
- A provision that purports to allow protection for bank depositors and insurance policy holders, but immediately negates that protection by declaring such duties "shall not be used as a means of avoiding the Party’s commitments or obligations under the Agreement" (Article 16).
- The standard language on dispute settlement: "A Panel for disputes on prudential issues and other financial matters shall have all the necessary expertise relevant to the specific financial service under dispute." The effect of that rule would be that lawyers who represent financiers would sit in judgment of financial companies’ challenges to regulations and laws (Article 19)
- A requirement that any government that offers financial products through its postal service lessen the quality of its products so that those are no better than what private corporations offer. It is possible this measure could also threaten social security systems on the basis that such public services compete against financial companies. (Article 21).
Rules designed to force privaTISAtions
Some of those article numbers have changed since the earlier financial services annex leak; one change is the disappearance of an article that would have required countries to "eliminate ... or reduce [the] scope" of state enterprises.
But that may be because there is a chapter with more stealthy language devoted to the topic: the TISA annex on state-owned enterprises, which would restrict their operations, requiring they be operated like a private business and prohibiting them from ’buying local’.
Furthermore, governments would be required to publish a list of state-owned enterprises, with no limit on what information must be provided if a corporation asks. Article 7 of this annex would enable any single government to demand new negotiations to further limit state-owned enterprises, which would give the US the ability to directly attack other countries’ state sectors or to demand privatisations in countries seeking to join TISA.
Jane Kelsey, a University of Auckland law professor who has long studied ’free trade’ agreements, notes that these TISA provisions are modeled on the Trans-Pacific Partnership. She writes:
"The goal was always to create precedent-setting rules that could target China, although the US also had other countries’ SOEs in its sights - the state-managed Vietnamese economy, various countries’ sovereign wealth funds, and once Japan joined, Japan Post’s banking, insurance and delivery services. All the other countries were reluctant to concede the need for such a chapter and the talks went around in circles for several years. Eventually the US had its way."
The substitution of language unambiguously requiring elimination or shrinkage of state-owned enterprises with less obvious language may be a public-relations exercise, so that the specter of forced privatisations will not be so apparent.
Domestic regulations in the cross hairs
Another portion of TISA that has been published by WikiLeaks is the annex on domestic regulation. This annex is so far reaching that it would actually eliminate the ability of governments to regulate big-box retailers. This is one of the goals of corporate lobbyists, a WikiLeaks commentary points out. Referring to a U.S. business group, the commentary says:
"The National Retail Federation not only wants TiSA to ensure their members can enter overseas markets but to ease regulations ’including store size restrictions and hours of operation that, while not necessarily discriminatory, affect the ability of large-scale retailing to achieve operating efficiencies.’
"The National Retail Federation is therefore claiming that a proper role for the public servants negotiating TiSA is to deregulate store size and hours of operation so that large corporations can achieve ’operating efficiencies’ and operate ’relatively free of government regulation’ - completely disregarding the public benefit in regulations that foster livable neighbors and reasonable hours of work."
In other words, behemoths indifferent to the lives of its employees, like Wal-Mart, would have an even freer hand.
The annex on domestic regulation would also require governments to publish in advance any intention to alter or implement regulations so that corporations can be given time to be "alerted that their trade interests might be affected." The ability of a government to quickly issue a regulation in response to a disaster would be severely curtailed. Environmental rules, even requiring performance bonds as insurance against, for example, oil spills, would be at risk of being declared unfair ’burdens’. The WikiLeaks commentary says:
"This draconian ’necessity test’ would create wide scope for regulations to be challenged. For example, the public consultation processes that are required for urban development are about ensuring development is acceptable to the community rather than ’ensuring the quality’ of construction services. They would fail the necessity test as more burdensome than necessary to ensure the quality of the service.
"Environmental bonds that mining and pipeline companies are required to post in case of spills and other environmental disasters are another licensing requirement that would not meet the test of being necessary to ensure the quality of the service."
New Zealand has gone so far as to propose a rule that might eliminate standards for teachers and for protection against toxic waste. Wellington proposes that regulations in all areas be "no more burdensome than necessary to ensure the quality of the service":
"Under New Zealand’s proposals, qualifications for teachers in both public and private schools, hospital standards, and licenses for toxic waste disposal are just some of the regulations that would have be reduced to the very low standard of being no more burdensome than necessary."
You’re not allowed to know what’s in it
Secrecy protocols for handling TISA documents are in place, similar to those of the Trans-Pacific and Transatlantic agreements.
These protocols include the requirement that "documents may be provided only to (1) government officials, or (2) persons outside government who participate in that government’s domestic consultation process and who have a need to review or be advised of the information in these documents."
What that means in practice is that only the corporate lobbyists and executives on whose behalf these ’free trade’ agreements are being negotiated can see them.
Consider that 605 corporate representatives had access to the Trans-Pacific Partnership text as ’advisers’ while it was being negotiated, with the public and even members of parliaments and Congress blocked from access.
Or that the public-interest group Corporate Europe Observatory, upon successfully petitioning to receive documents from the European Commission, found that that of 127 closed meetings preparing for the Transatlantic Partnership talks, at least 119 were with large corporations and their lobbyists.
Perusing government trade office Web sites for useful information on TISA (or any other ’free trade’ agreement) is a fruitless exercise. To provide two typical specimens,
- the European Commission claims that "The EU will use this opportunity to push for further progress towards a high-quality agreement that will support jobs and growth of a modern services sector in Europe"; and
- the Australia Department of Foreign Affairs and Trade asserts that "TiSA is an opportunity to address barriers to international trade in services that are impeding the expansion of Australia’s services exports."
Which is the same sort of nonsense that we hear about other secret agreements. The economic health of Australia, or any other country, is not likely to be dependent on sending more financial planners overseas.
What reads as bland bureaucratic text will be interpreted not in ordinary courts with at least some democratic checks, but by unaccountable and unappealable secret arbitration panels in which corporate lawyers alternate between representing multi-national corporations and sitting in judgment of corporate complaints against governments.
Let’s conclude with some sanity. Almost 1,800 local authorities have declared themselves opposed to the various ’free trade’ agreements being hammered out, including TISA. The ’Local Authorities and the New Generation of Free Trade Agreements’ conference in Barcelona, attended by municipal and regional governments and civil society groups, concluded with a declaration against TISA, the Transatlantic Trade and Investment Partnership and the Canada-European Union Comprehensive Economic and Trade Agreement.
In part, the declaration says: "We are deeply concerned that these treaties will put at risk our capacity to legislate and use public funds (including public procurement), severely damaging our task to aid people in basic issues such as: housing, health, environment, social services, education, local economic development or food safety.
"We are also alarmed about the fact that these pacts will jeopardise democratic principles by substantially reducing political scope and constraining public choices."
That is the very goal of ’free trade’ agreements. TISA, like its evil cousins TPP, TTIP and CETA, is a direct threat to what democracy is left to us. It promises a global dictatorship that in theory raises the level of corporations to the level of national governments but in reality raises them above governments because only corporations have the right to sue, with corporate ’rights’ to guaranteed profits trumping all other human concerns.
We ignore these naked power grabs at our collective peril.