[Ip-health] Greenpeace TTIP text leak

Robert Weissman rweissman at citizen.org
Mon May 2 06:49:26 PDT 2016

Greenpeace has released a leak of huge chunks of the TTIP negotiating text, including 13 of 17 consolidated chapters. Intellectual property and investment are not among the leaked chapters.

The full set of leaked materials and a background Q&A is available here: <www.ttip-leaks.org>.

The ecommerce text will be of interest to some on this list, is available here: <http://www.ttip-leaks.org/#docdoc4>.

Early stories have appeared in major European outlets: the Guardian <http://www.theguardian.com/business/2016/may/01/leaked-ttip-documents-cast-doubt-on-eu-us-trade-deal>, Suddeutsche Zeitung < http://www.sueddeutsche.de/wirtschaft/-geheime-ttip-papiere-enthuellt-1.2975097> and Le Monde < http://www.lemonde.fr/economie/article/2016/05/01/tafta-des-documents-confidentiels-revelent-l-avancee-des-negociations_4911732_3234.html> and now many others.

Everyone interested in TTIP will be interested in an internal EU memo, titled "Tactical State of Play," available here: <http://www.ttip-leaks.org/pandaros/doc16.pdf>.

Here are excerpts from that memo on intellectual property and investment:

3.5 Intellectual Property Rights, Including Geographical Indications

A positive feature of the twelfth round of IP discussions was the US submission, for the first time, of some texts on relatively consensual areas (international treaties and general provisions). 

However, the US remains unwilling to table, at this stage, concrete proposals on more sensitive offensive interests that have been expressed by some of its right holders or that are explicitly referred to in its TPA (for instance on patents, on technical protection measures and digital rights management or on enforcement).

When confronted with the EU warning that bringing sensitive proposals that would require changes in EU law to the table - and doing it at a late stage of the negotiation - may have a negative impact on stakeholders and has very limited chances of being accepted, the US reiterated its understanding that the IPR chapter should not be a standard (TPP type) text, but also insisted that such a departure from its "model" creates some difficulties in terms of addressing the demands included in the IPR related sections of its TPA.

Additional details on the content of the future section on cooperation which the US intends to table very soon:

It should broadly capture the level of cooperation that already exists, in particular through the work of the Transatlantic IPR Working Group, i.e., it should cover cooperation in relation to third countries; international organizations; customs matters; voluntary stakeholder initiatives, technical assistance and capacity building, support to SMEs (including websites), etc. Institutionally, it would be important to put in place an IPR Committee ensuring transparency in its activities and inclusion of a wider range of stakeholders.

One negative element of note is that certain US legislative projects in areas that are very important for EU right holders appear not to be making progress in Congress. This is the case in particular for the draft laws on patent reform (addressing the problem of patent trolls) and on the copyright sectors identified as offensive interests by the EU (broadcasting rights, public performance and resale rights).

As regards geographical indicators, discussions focused on the preparation of an intersessional  discussion prior to the next round. ...

3.7 Investment Protection

Regarding investment protection, discussions focused on definitions, expropriation and transfer articles. The EU provided further explanation on its text proposal sent on 12 November 2015. The EU and the US engaged in an in- depth comparison of their respective approaches, with a view to identifying areas that will require further substantive discussion in future rounds (notably fair and equitable treatment) and with the objective of consolidating the respective texts.

Regarding resolution of investment disputes, the exchange of views on the respective text proposals focused primarily on understanding the respective approaches and on identifying areas of convergence. The US asked mainly factual and exploratory questions concerning the EU's intentions and the objectives behind the new provisions in the EU proposal.

Discussions relating to "definitions and scope" were generic. Some convergence was found on the shared intention behind the "on behalf approach" under the definition of "claimant", as well as the principled agreement on the definition of  "respondent". Parties also agreed in principle to include definitions on the various rules referred to in this section including "UNCITRAL Transparency rules", "ICSID Convention", "ICSID additional facility rules", "New York Convention" and "UNCITRAL  Arbitration Rules".

As regards amicable resolution, the US agreed on the principle that any Alternative Dispute Resolution is positive and expressed interested in the EU's rationale for requiring that a mutually agreed solution be notified to the Committee. On consultation, the US also inquired about the objective pursued by the EU in making consultations a requirement under the agreement, and how that could potentially impact timelines.

Parties also discussed the Article on Consent to arbitration where some commonality and some structural differences were identified. As regards the submission of a claim, some shared the view that the requirement to have loss or damage resulting from a breach and the procedural rules that should apply in a dispute under the TTIP agreement also on the procedural rules to apply in a dispute under TTIP and that these should be considered to be of a dynamic nature (meaning changing with time). As regards third party funding, the US explained that this type of financing is uncommon in the US. The article on other claims was also discussed where the Parties found some agreement regarding the Parties' respective intentions to prevent parallel and multiple proceedings as well as provisions allowing for the early dismissal of unfounded claims.

The Parties also identified a number of areas where there is broad agreement, including on the approach taken with respect to preliminary objections in a dispute, the approach on transparency and public access to the proceedings and the status of the non-disputing party in a proceeding. Other areas discussed included an article on the possibility of control by the Contracting Parties over the interpretation of the Agreement, the prevention of parallel and multiple proceedings, as well as the possibility to allow for early dismissals of unfounded claims. Other provisions such as the Tribunal of First Instance and the Appeal Tribunal were not broached in this round.

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