By Thomas Mc Donagh and Aldo Orellana López for the NJGI
The European Commission’s public consultation on the inclusion of the investor-state dispute settlement (ISDS) mechanism in the investment chapter of the Trans-Atlantic Trade and Investment Partnership (TTIP) is clearly a result of growing citizen concern and civil society pressure.
Even though the scope of the Commission’s consultation has come in for severe criticism from civil society groups, the high profile that this issue has garnered in Europe in recent months represents a unique opportunity for campaigners.
In order to facilitate a strategy conversation among activists and civil society groups on ISDS in the TTIP campaign, NJGI recently interviewed an activist at the centre of the campaign in Europe: Pia Eberhardt* from the Corporate Europe Observatory.
We began by asking her what strategic opportunities and challenges she sees for campaigners given the current high profile of investment rules and ISDS in Europe.
Network for Justice in Global Investment (NJGI): We see the current moment in Europe, with the consultation and the new high profile of investment rules and investor-state dispute settlement (ISDS) as being quite a crucial moment in which this issue can go one way or the other. We’d like to get some of your opinions as to how we can take advantage of the current moment in the most strategic way?
Pia Eberhardt (PE): You’re right, it really is a key moment and there are many opportunities but also quite a number of challenges. First of all I think it’s important for us to offer people an opportunity to articulate themselves when they have already learned about ISDS and oppose it, but the current consultation by the Commission provides little space for people to articulate this opposition. It is a very legalistic questionnaire with biased questions that provide little space for general opposition and concerns about the system. So we have to open that space because the Commission has not opened it. Online campaigns and e-actions will be very important for that.
Offering people simple and accessible analysis of the investor-state arbitration system still remains a key task for us. We have many countries in the EU where ISDS is not an issue at all. It is an issue in some countries, also in some important countries investment law-wise –the belly of the beast countries: Germany, the Netherlands, France- but in Eastern Europe and in large parts of Southern Europe it is still a non-issue. So, a task for us is to translate information and make it accessible, in the form of videos for example.
Another big challenge is for people not to get confused by the European Commission’s reform agenda, which does acknowledge that the current ISDS system has flaws and offers some reforms to save it. We see these reforms as reforms that tinker around the edges -a bit more transparency here and an appeals procedure maybe in a few years time- but the reforms do not touch the heart of the system which is more far-reaching private property protection rights than anyone in the world has, more than those enshrined in most constitutions and then the private arbitration system for investors exclusively to claim these rights. So the core problems are not touched upon by the so-called reforms, but the EU is running a huge PR/communications campaign to sell its reforms as a way to protect the public interest from investor attacks. That is confusing some people, journalists, for example, or some Parliamentarians who do not see through the feel-good rhetoric of the Commission. So this is another challenge for us to again and again repeat that the so-called reform agenda of the Commission does nothing to tackle the basic flaws of the system and will not protect people, the environment and democracy.
It’s also important for us in Europe to broaden the critique of investor-state dispute settlement in several ways. We have to mainstream our critique so that it is not just social movements, activists and left-wing politicians that oppose ISDS, but also more conservative circles, like constitutional lawyers for example who should have legitimate concerns from their perspective about this system, for example because it provides greater rights to foreign investors or to companies which manage to appear as foreign investors.
But we also have to broaden the critique to make sure that it is not just about the EU-US trade deal. In Europe we didn’t have a public debate about trade and investment policies for years, if not decades, it was not something that people cared about. And now the EU-US negotiations are changing all that. This is good but now we have to make clear to people that this system has so far been used by European companies to sue mainly countries in the global South and claim massive compensation sums for public policy. So we have to broaden our critique to attack the EU and its investors, and what they do with rest of the world and not just explain to people that ISDS is dangerous for themselves because EU governments might be sued by US companies.
NJGI: I think that’s really well demonstrated by the German government’s stance against ISDS in the TTIP while at the same time maintaining ISDS in the trade and investment agreements that it has with developing countries all over the world.
PE: Yes, definitely, the German position is hypocritical. We know that Germany, for example in the negotiations with Canada, was one of the most aggressive countries fighting for hard-core investor rights; and Germany’s own bilateral investment treaties with over one hundred countries grant investors extremely broad rights and that position has not changed. I think the German government at the moment is swinging with public opinion, which in Germany is against ISDS, so at the moment it would just be too costly for the German government to support this system in public. But of course it will continue to seek very powerful rights for German companies around the world.
NJGI: In terms of the actions that civil society groups have taken, what do you think has been most successful or effective in influencing that shift in opinion in Germany?
PE: It’s difficult to say what made the difference. When we published the Profiting from Injustice report one and a half years ago we had a hard time getting any interest for that in the media and suddenly one and a half years later everyone is interested in what we have to say. But our work hasn’t really changed.
What you see in Germany is what you see in many countries around the world: that the investment regime becomes an issue when a country gets sued. And when the claim is so blatantly going against the public interest in that country. That has happened in Germany with the two Vattenfall cases: the first one challenged environmental restrictions on a coal-fired power plant and the second one, which is on-going, is challenging Germany’s exit from nuclear power. That exit not only followed the Fukushima nuclear disaster but it also followed decades of strong mobilizations of the anti-nuclear and environmental movement in Germany. So, seeing a big energy company challenging that exit and demanding more than four billion Euros in compensation is really outrageous for people in Germany. So, I think, in the end it was the fact that you have these claims by Vattenfall against Germany and you have the negotiations with the United States about similar investor rights, and a slowly trickling awareness about what this could mean that created this explosion of public opinion. ISDS really has become a public issue where it’s even being discussed on comedy shows. What people understand is that the investment regime is an elite system that it is only accessible for a tiny global elite.
NJGI: You mentioned the importance of communicating in terms that are easily accessible for the broader public, what do you think has worked well so far in that regard, do you have any specific examples from your own experience of tools that have been particularly effective at communicating this complex issue in simple terms?
PE: I guess the most important thing so far was that the issue has been picked up by the media. Journalists have different ways of talking about these issues than we have. Even when we think that we use relatively simple language, very often we don’t. Images have also been important; and the fact that you have investor-state disputes being covered by mainstream television stations. They managed to tell simple stories about concrete cases, and of course awareness only comes with concrete cases, whether it’s Vattenfall or the Philip Morris cases. The Lone Pine case against Canada is also important because we have a strong anti-fracking movement in Europe. So I think it’s important to try to get this issue into the media, to make them report on cases that are relevant for a certain audience in a certain country. That makes a difference because the reach is just so much broader when you have media coverage than when you only write good reports.
NJGI: That’s great Pia, I think the whole issue of messaging and communication is something that we all need to be thinking about in the most strategic way possible, so I think you’ve given us some really good guidelines in that regard. In terms of the groups that have been mobilizing on the issue so far, or more to the point the groups that haven’t, who do you think should be the sectors or the groups that campaigners should be targeting, particularly sectors or groups that haven’t really mobilized or come out on this issue so far?
PE: In Europe at this stage we do have most organized civil society groups on board with a solid position against ISDS. So that is trade unions -including the big mainstream trade unions- environmental groups, public health organizations and the internet community that was fighting against ACTA are all on board. So opposition in civil society is pretty solid. Party-wise, there is solid opposition in the Greens and the Left party and in a growing part of the Social Democrats. But that already suggests that we have gaps and that is party-wise clearly the Liberal and the Conservative parties. Many of them are a lost cause but you do have parliamentarians in these parties that I think would be very open to parts of the criticism that has been voiced on ISDS and the same goes for academics and legal scholars. And we know from the global fight against corporate rights, having legal scholars and academics speaking out against this system has been very important. At the moment, we lack that engagement from academics and legal scholars in Europe. But it will be important for the months and years to come. We are already seeing arbitrators and conservative legal scholars, coming out of the closet and starting to write opinion pieces in newspapers and to defend the investor-state arbitration system in the media. We as civil society groups can rebut many of their arguments but the rebuttal is more powerful if it is done by someone who is from the same field, from their camp, from academia. So we still have to bring more academics on board and get them a bit organized.
NJGI: Whenever we give strategic advocacy trainings, we often talk about potential target audiences as being divided into three groups: those you already have convinced; those who are not convinced and who are very unlikely to be; and those who are undecided – and that your messaging strategy should be targeted at those undecided groups.
PE: I think we have already convinced quite a few of the undecided. You can see that for example in the shift in position in the Social Democrats that were a bit in the middle but do now at least oppose ISDS in treaties between industrialized countries. That was not their position two years ago. We can now start to work on those that are much harder to convince, such as Liberal and Conservative parties. The fact that public opinion is so strong and clearly against ISDS will make it easier to also gain ground in these camps.
NJGI: Definitely, and I suppose it’s the role of groups like us to keep up the pressure on and to try to maintain that political climate.
PE: Definitely. And as you know, we will have elections soon in Europe- the European elections in May. We have many “friends” at the moment, so MEP candidates who are quite strong in their opposition. But we know that this doesn’t mean that they will vote in the right way once in the Parliament, so that is another challenge to make sure that after the elections people don’t lose the energy and keep up the pressure on this issue.
NJGI: And that is of course one of the biggest challenges ie. to maintain the momentum over the long haul. You mentioned some of the sectors that you have been working with on these issues in Europe. I was also curious about groups or sectors on the other side of the Atlantic, in the United States or in Canada for that matter. Which allies have been most important and do you have any allies in mind that campaigners should be reaching out to more?
PE: In Canada as well as the US, our allies cover wide sectors in civil society, from trade unions to environmental groups to very local grassroots groups, for example those working just on issues such as fracking, that oppose ISDS. The cooperation has been very good and also very important. For example in the debate about the EU-US trade deal, the Commission keeps telling people in Europe that European investors are gravely discriminated against in US courts. You need the experience of people living in the US to tell you that is absolute bullshit and then to tear apart the one or two examples that the Commission has given to prove its point as ridiculous or wrongly presented or just examples of rare exceptions. So that trans-Atlantic cooperation has been important and will be important to fight this propaganda war that we are already in the middle of. The same goes for cases that US investors have already launched against European countries. The Commission is always saying that, despite the existing BITs between some Eastern European countries and the US, there are very few lawsuits by US-investors against these countries. So, they argue: “see, we already have treaties with the US and they are not as dangerous”. The US groups have been very helpful in finding more details about the cases in order to have additional arguments against the Commission’s propaganda.
NJGI: We are also going to interview Arthur Stamoulis from the Citizen’s Trade Campaign for this edition of the NJGI newsletter. In terms of the US context, what lessons do you feel can be drawn from the campaign in Europe so far that might be applied to a campaign such as the TPP campaign in the US?
PE: I guess we are more following lessons from the positive experiences in the TPP campaign. I don’t have any magic bullets that people haven’t discussed for years. Good analysis is important. Accessible tools: from videos to simple information sheets that are understandable for people, a good media strategy, constantly trying to bring this issue into the media. But also expert arguments that you do need to rebut false claims that come out of governments once your campaign is successful and awareness is spreading and people are raising their concerns. You need to be constantly ready to rebut these false arguments and propaganda. Working together across countries and across the Atlantic is important. So these are campaign strategies that most of us have been following for many years. They’ve just come together at the right moment in time in Europe.
NJGI: I think we’ve covered almost everything, do you have anything you’d like to add, maybe in relation to he next steps for the campaign?
PE: Let me just stress again that the consultation in Europe is a window of opportunity, even though no one in Europe overestimates the real chances of getting ISDS out of the EU-US trade deal. There is a chance, but it’s not very big. The EU political system has so many barriers that shield the EU institutions from public pressure. It’s a very flawed political system. But there is this moment now and we will do everything to use it. And we are very aware of the global significance that this has. Of course it’s significant for people in the US and in Europe who will be affected if these corporate super rights get enshrined in the TTIP, but we know that it would send a very strong signal to the world and to civil society in other countries in the world fighting this system if we managed to get the Commission to back off and to drop these corporate super rights.
NJGI: Pia, I think you’ve given us and other groups working on this issue a lot to think about.
PE: Really? I find the things we do very basic. But if you found it interesting, I’m glad.
NJGI: It’s definitely not a science. It’s definitely an art and not a science. But I think it’s always helpful to think about these things together in the most structured way possible in order to help other groups to learn the lessons and draw on the experience of what’s worked so far.
We look forward to collaborating further with you on this in the future.
PE: For sure, and thank you so much for putting together this excellent newsletter together. I appreciate it a lot and I know that many other people do too. I know it must be a lot of work, but for those reading it it’s such an easily accessible overview of what’s going on this issue around the world. Many thanks.
NJGI: You’re very welcome and thanks very much for your nice comments. We will share the current edition with you as soon as it’s ready.
* Pia Eberhardt does research and campaigning on EU trade and investment policy with the Brussels-based “Corporate Europe Observatory” (CEO,www.corporateeurope.org), a group working to expose and challenge the privileged access and influence enjoyed by corporations and their lobby groups in EU policy making.
New from the Corporate Europe Observatory on the struggle against ISDS in the TTIP: Still not loving ISDS: 10 reasons to oppose investors’ super-rights in EU trade deals