Disagreeing to Agree: Why the more contentious aspects of the TTIP negotiations might not be as intractable as you think

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by Nicholas Hager

ttipIn the shadow of major international crises and other Western foreign policy priorities, the Transatlantic Trade and Investment Partnership (TTIP) has been lumbering steadily toward completion. The benefits of this putative agreement have been repeated, and largely accepted, by both sides and opposition to it typically only offers critiques that amount to either speculative worst-case scenarios or empty populist nattering which equates “secrecy…[with] tyranny” and “cooperation” with the loss of individual freedoms. The former criticism, which largely comes from a place of legitimate concern, is misguided but is at least issue-focused and attempts to improve rather than impugn the agreement. The latter is, unfortunately, largely the result of the visceral ideological biases of a few groups and individuals who oppose the TTIP simply for what they think it represents.

A key goal of the TTIP, according to the Office of the United States Trade Representative, is to “eliminate…non-tariff barriers that decrease opportunities for U.S. exports [and EU imports], [including] restrictions that are not based on science, unjustified technical barriers…[or] restrictive…quotas…which impose unnecessary costs.” At least one estimate indicates that removing tariff barriers alone could “boost economic growth in the United States by $180 billion over five years.” Reducing non-tariff barriers, however, could yield far larger economic and political benefits – it is over these that the most contentious debates about the form and utility of the TTIP rage. Both sides find it difficult to find common regulatory ground in the shadow of a “Doha Round [that] stalled in 2008 as a result of highly visible disagreements between the U.S. and EU…regarding many of [these] same issues.”

A recent Pew Research poll has shown that, even at the public level, there is a strong base of public support for the TTIP in principle among U.S. and German respondents, but “when it comes to specifics, both…oppose many details of [the TTIP and] disagree with one another on [whether to make] transatlantic regulatory standards similar.” This can partly be attributed to the fallout from last year’s NSA spying revelations, and some suggest that cultural differences are to blame. At the same time, Douglas J. Elliott, a fellow in economics at the Brookings Institution, notes that the TTIP faces resistance from “deeply entrenched interests on both sides of the Atlantic [that]…will always fight harder to keep what they have rather than get something new.” Whatever the case, these issues present real obstacles that confound efforts to reach a deal.

The financial sector has the potential be central to the final TTIP agreement, with the deal encompassing two of the world’s foremost financial hubs in New York and London, but there are a number of hurdles that prevent smooth harmonization. One issue is the “Volcker Rule” that was passed in the wake of the global financial crisis to restrict banks from making speculative investments with the money of their clients. Michel Barnier, the EU’s financial services chief, has expressed European concerns that the Volcker Rule will impact EU banks in the U.S. by restricting their operations. There are exceptions for banks which deal with “U.S. sovereign debt,” Barnier says, but “banks that…deal with the sovereign debt of other countries” are not excepted, which “could [expose them to] systemic risk.” For a number of reasons, the Obama administration is hesitant to include financial regulation convergence in TTIP negotiations, and Europe, according to a recent European Commission report, appears to grudgingly accept this, saying: “[The] aim of the EU proposal is not to negotiate within the TTIP on the substance of…international standards or on other elements of on-going regulatory reforms,” including the Volcker Rule, but is predicated on the mutual belief that “both jurisdictions have equally robust financial regulation in place.” This would appear to obviate any meaningful discussion on the Volcker Rule, and other similar regulatory issues, in the context of TTIP negotiations.

One issue that is on the table, however, is public procurement. The EU “[insists] on access to U.S. state and local procurement markets,” but this will be problematic because of “Buy American” clauses which exclude international firms from bidding and the fact that the federal government cannot constitutionally require individual states to comply—indeed, thirteen states have yet to sign the revised General Agreement on Procurement. Solutions to this may include build-operate-transfer (BOT) and/or public works concessions contracts, which the U.S. agreed to in recent free trade agreements—including one with South Korea, the text of which is identical to that of the EU’s BOT provisions in its free trade agreement with South Korea—and which might conceivably provide some common ground upon which both sides work toward agreement on other, less tractable, market access issues.

Also at issue is the much maligned investor-state dispute settlement (ISDS) mechanism of the TTIP. Yannick Jadot, a Green Party European Parliamentarian, has called the ISDS “a massive Trojan horse, which could be used by multinational corporations to whittle away EU standards,” and it has been the target of analyses that attack its motives and claim it will “distort competition [by providing] foreign investors with [a] judicial remedy…not available to domestic competitors.” These arguments are predicated on a fundamental misperception, however.

They assume that such a mechanism would allow cupidinous U.S. corporations to undermine EU rules and regulations for the sake of profit, but this is a very shallow understanding of what the ISDS mechanism would do. EU Environment Commissioner Janez Potocnik has dismissed such fears, noting that ISDS is only really needed when “you have [a] deal between two areas where there is a real worry that the legal system would not deliver properly. That worry between the United States and Europe is not so obvious…” Both regions have strong, roughly equivalent, business protections, so there’s no guarantee that this mechanism would be used much at all, let alone abused. And even if it were invoked, it is important for opponents of the ISDS (and the TTIP more broadly) to appreciate that the ISDS is not an American assault on EU laws; it would afford European corporations the same privileges in the U.S. market as U.S. corporations would enjoy in Europe. While this may or may not be desirable in the abstract, it is a crucial point that is often lost because of the way the debate has been framed, with certain parties stoking populist fears in an attempt to create victims and villains where there are none. As long as the processes are “transparent [and] have an appellate body, [allow you to] refuse arbitrators, and [don’t allow you to] litigate from place where you only have a post box” EU Trade Commissioner Karel De Gucht says, including an ISDS agreement is useful.

Another area of contention is the perceived disagreement between U.S. and EU standards for food and pharmaceutical safety. Genetically Modified Organisms (GMOs) and hormone-infused beef have borne the brunt of criticism, despite vigorous reassurances that EU laws would have to be observed “because otherwise we will not have an agreement.” The former issue is perhaps the most salient “tough issue” of the entire negotiation process, but, when examined, there does not appear to be much to it. For one thing, this European Commission report plainly states that “the basic EU law on GMOs will not be part of the [TTIP] negotiations,” so the safety standards would likely remain unaffected in this area, especially considering that 52 GMOs have already been authorized “to be sold in the EU as…food, animal feed or for sowing.”

These are but a few of the obstacles that stymie the progress of the TTIP, as there are many issues such as data security and pharmaceutical standards that still need to be addressed. That said, the aforementioned issues are widely perceived as major sticking points in the negotiations.  But there is ample room for convergence on them because there is already substantial overlap. Both sides “are generally pleased” with the progress that has already been achieved, but understand that narrowing the gaps simply means that “the going will inevitably get tougher.” The negotiations must now focus on building on currently-existing points of convergence and attempt to limit the influence of unhelpful, ambiguous political narratives. 

Nicholas Hager is an intern at the Streit Council. Photo credit: European Commission

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