[CTC] HuffPost: Another Leaked Trade Agreement, Another Reason to Oppose Fast Track

[Deborah James]

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Associate Professor of Law, Yale Law School
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Another Leaked Trade Agreement, Another Reason to Oppose Fast Track
Posted: 06/04/2015 4:49 pm EDT  Updated: 06/04/2015 4:59 pm EDT
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Yesterday, WikiLeaks released 17 documents <https://wikileaks.org/tisa/>
from a little known trade agreement now under negotiation. The Trade in
Services Agreement (TiSA) will cover services ranging from professional work
to e-commerce and financial services among the United States, the European
Union, and 23 other countries. As with other new trade agreements --
notably, the two massive trade deals currently under review with our Asian
and European allies -- the TiSA negotiations remain classified. And as with
those other trade deals, the negotiating texts -- which reveal the positions
that our government advocates for at the deal-making stage -- are to be kept
classified for five years after the agreement has been finalized, whether it
comes into force or fails.

Services are big business in the new global economy, comprising an estimated
75% <https://ustr.gov/TiSA>  of the U.S. economy. And unlike cross-border
trade in goods -- largely covered by the WTO -- the governance of the trade
in services is more haphazard and much less long-standing. The WTO's General
Agreement on Trade in Services (GATS) is a complicated agreement with
various opt-in and opt-out clauses, which allow WTO members a degree of
autonomy in deciding which services areas they commit to open to foreign
competition. One rationale for this degree of autonomy -- which is unlike
the more general discipline on the trade in goods -- is that services aren't
simply comparable "goods" to be traded. They are the product of complex
national regulatory regimes and implicate important legislative decisions.
To a first order of approximation at least, a barrel of crude oil is a
barrel of crude oil, but what banking or architecture or e-commerce is
varies widely across national contexts.

The TiSA represents, in essence, a first step in crafting a new global
regime for governing the cross-border flow of services. A great deal of the
work that any services agreement must do is definitional, since services can
be amorphous and are often controlled by national licensing schemes or one
kind or another. Liberalizing the trade in services thus runs up against the
difficulty of defining when a national law constitutes improper
"discrimination" against foreign competitors in a service sector. As might
be imagined, liberalizing agreements often have a deregulatory
<http://www.alliancesud.ch/en/policy/trade/download-trade/140623_TISA-Positi
on_Alliance%20Sud_ENG.pdf>  effect, as different national licensing and
oversight regimes are harmonized downwards. And since important services
from broadcasting to utilities to health care are provisioned publicly in a
wide range of countries, these trade agreements can have a privatizing
<http://www.world-psi.org/en/psi-special-report-tisa-versus-public-services>
effect, requiring countries to open sectors to private competition or to
eliminate government support.

In the case of TiSA, academics and activists studying the leaked drafts have
already noted some of this deregulatory and privatizing pressure.
Longstanding systems of public service provision in areas ranging from
transport to broadcasting to utilities look likely to be come under new
scrutiny. Financial regulations and safeguards -- including Dodd-Frank --
may be further eroded under this agreement, under the guise of financial
service liberalization. Equally worrying are the negotiations covering
e-commerce, which reveal U.S. efforts to oppose the "data localization" that
privacy advocates support as a buffer against surveillance. Other points of
concern will surely emerge over the coming days from the leaked drafts.

But as we take in each new revelation, we must not lose sight of the broader
context. The Obama administration's proposed trade agreements -- the
Trans-Pacific Partnership (TPP), the Trans-Atlantic Trade and Investment
Partnership (TTIP), and now TiSA -- are not really about "free trade" as
conventionally understood. They represent instead the inauguration of a new
form of global governance, which proceeds under the mantle of trade
liberalization. What these agreements deliver are new forms of cross-border
regulation, often with sweeping and understudied impacts on the domestic
economy. The regulation of our utilities, our roads, our health-care
systems, our banks, our media now comes through a mechanism developed in the
post-war era to address high tariff rates.

And there is one overriding fact to bear in mind over the coming week. The
same "fast track" authorization that will soon be debated in the House of
Representatives doesn't just concern the controversial TPP and TTIP. Later
this year or next, it will be used to provide special, expedited review for
TiSA as well. For fast track -- now called "Trade Promotion Authority"--will
last for six years. Thus, after Obama's term is finished, through the next
Presidential administration, and until 2021, the special treatment decided
on this coming week will be used to push through future "trade" agreements
that may address any activity that crosses a border -- which is to say,
almost anything of importance in today's world.

What the latest WikiLeaks release reminds us is that fast track won't just
be used to pass the TPP. It will also be used to pass the TTIP, the TiSA,
and future agreements not yet leaked -- perhaps not even yet imagined. If
the House authorizes fast track next week, we should expect even more
"government by trade agreement" over the coming years. Behind closed doors,
in the offices of lobbying firms and corporate boardrooms, law firms and
foreign ministries, smart people working for special interests will be
empowered to reshape the world, through secret negotiations, and under the
banner of "free trade."

The author is an Associate Professor at Yale Law School, where he teaches
international trade law.

MORE:
TPP <http://www.huffingtonpost.com/news/tpp/> Wikileaks
<http://www.huffingtonpost.com/news/wikileaks/> Trans Pacific Partnership
<http://www.huffingtonpost.com/news/trans-pacific-partnership/> Trade
<http://www.huffingtonpost.com/news/trade/> Trade in Services Agreement
<http://www.huffingtonpost.com/news/trade-in-services-agreement/> Tisa
<http://www.huffingtonpost.com/news/tisa/>



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