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Bad Investments: Trading Away the Right to Energy Democracy

04 June 2016

The recent release by Wikileaks of documents relating to the "Trade in Services Agreement" (TiSA) - currently being negotiated in secret in Geneva - has brought a new round of scrutiny not only to the TiSA, but also to the sweeping effort to re-write international trade and investment rules of which it constitutes just a part.

By John Treat, for Trade Unions for Energy Democracy

This renewed scrutiny itself is part of a rising global resistance against corporate-led attempts to control the terms of trade and investment in the interests of multi-national corporations. Such resistance is having an effect: Uruguay withdrew from the TiSA negotiations in 2015, and the related "Trans-Pacific Partnership" (TPP) is under serious threat.

Global Union Federation Public Services International recently published a new analysis of a previously leaked proposed annex to the TiSA on "Energy Related Services" (ERS). Written by Victor Menotti of the International Forum on Globalization, the report - entitled TiSA vs Climate Action - Trading Away Energy Democracy -  explores the implications of the ERS annex for climate and energy policy, especially in the wake of the Paris climate agreement. Anyone concerned about defending the space necessary for a just transition to democratically accountable renewable energy should read the report and help spread its message more widely, as a matter of urgency.

As PSI General Secretary Rosa Pavanelli writes in the report's introduction:

Energy is possibly the global economy's most strategic sector given its implications for national security, economic growth, social stability, and ecological sustainability.

Yet 80% of the world's primary energy comes from fossil fuels that emit greenhouse gases.

If humanity is to avert the worst extremes of the climate crisis, we must all reduce our dependence on fossil fuels, rapidly and dramatically. This was recognised by UN Member States in the December 2015 Climate Agreement.

Yet, at the very time that Member States were negotiating the Paris Climate Agreement, their trade negotiators were meeting in Geneva to secretly forge a new Trade in Services Agreement (TiSA) covering Energy Related Services (ERS).

In order to understand the contradiction Pavanelli highlights, it is helpful to consider the history and context. TiSA forms part of a broader set of interlocking, multi-lateral agreements aimed at advancing the aggressive neo-liberal rules regime that failed when the "Doha Round" of WTO negotiations collapsed in 2008. Linked to the "Trans-Pacific Partnership" (TPP) mentioned above, as well as the " Trans-Atlantic Trade and Investment Partnership" (TTIP), TiSA aims to help establish standards and precedents to govern the movement of capital and services into the future, on terms especially advantageous to major U.S. firms and industries. (Analogous rules on the movement of goods have largely been liberalized already under previous agreements.) These agreements, which aim especially to open up public services and tip the balance of power further towards investors, will create the legal equivalent of "facts on the ground" that would effectively constrain the range of options available to the WTO process as and when negotiations recommence.

The current set of agreements reflects three key pillars of legal economic strategy that have taken form in recent decades. Specifically, they aim to weave together principles and rules that:

  • Lower or eliminate "impediments to trade," including whatever relatively limited tariffs remain in effect, but more importantly what are called "non-tariff trade barriers" - in other words, regulations that protect workers, the public, the environment, etc.;
  • Facilitate and entrench privatization of public services , by broadening the definition of market access and using 'ratchet clauses' to prevent any return to public ownership and management once privatized; and,
  • Protect "investors' rights" , by compelling signatory governments to be bound by decisions of private arbitration panels, which operate secretively, bypass domestic legislation, undermine domestic policy space and democratic accountability, and involve profound conflicts of interest. This strengthens the ability of large, foreign corporations to seek redress from governments for changes in domestic policy or circumstance that the foreign investors believe may compromise their future profits.

TiSA is an integral part of this agenda, and the energy sector is firmly in its sights, in ways that risk profoundly compromising governments' abilities to make meaningful progress towards meeting their Paris commitments, to address current inequality or redress past injustice, or to pursue domestic developmental goals.

Within the overall project of removing barriers to trade, underwriting investors' future profits, and privatizing dispute resolution, the ERS annex aims to liberalize markets in "energy services" virtually as far as possible - where "energy services" is construed in sweeping terms, from exploration to distribution - and thus including infrastructure such as electrical grids and pipelines. At the same time, it makes state-owned enterprises ripe for privatization, under the banner of fighting "monopolies". As summarized in Pavanelli's introduction to the report:

Among the most inappropriate ideas included in TiSA's ERS proposal are to:

  • Establish… a principle of "technological neutrality" whereby commitments would extend across all energy sectors regardless of the fuel source or technology, denying regulators the right to distinguish solar from nuclear, wind from coal, or geothermal from fracking;
  • Reduce states' sovereignty over energy resources … by requiring states to establish free markets for foreign suppliers of energy related services thereby removing the right to nurture infant industries and ensure domestic economic benefits from exploiting energy resources.
  • Shift political power over energy and climate policies from people using their governments for shaping fair and sustainable economies to global corporations using TiSA for restricting governments from regulating energy sources, markets, companies, and industry infrastructure.

Report author Menotti emphasizes that key passages of the draft text seem deliberately crafted to create a misleading impression. Proposed language that superficially appears to reaffirm the importance of sovereignty over energy resources, for instance - when read more closely - serves rather to limit sovereignty in crucial ways, by explicitly subjugating it to "international law" - i.e., TiSA itself, with all of the interpretive leeway and lack of accountability it brings in its wake. Similarly, by importing the innocent-sounding notion of "commercial presence" into TiSA, the proposed annex would further strengthen the hand of large foreign investors against both domestic firms and domestic governments. Even such seemingly laudable terms such as "transparent," "objective," "relevant," and "appropriate," Menotti notes, are all "loaded with legal implications that could result in corporations rolling back almost any measure" that would otherwise protect the public good against corporate encroachment or malfeasance. In each of these ways, the draft language functions - not at first appearance, but only upon careful consideration of its implications - not to celebrate or expand self-governance, as the authors would have us believe, but rather to limit it and entrench its antithesis.

Menotti points out that the broad definition of "energy related services" itself is of key importance, as it effectively extends the reach of trade and investment rules to cover important aspects of government procurement, which has long served as a powerful tool for implementing developmental policy. Beyond this, the draft text could also impose a binding requirement on governments to respond to input from foreign corporations regarding proposed laws and regulations before finalizing them, thus leaving domestic policy processes at least partially vulnerable to manipulation or capture by foreign private companies.

Protest actions against TiSA and related agreements have been gaining momentum over the past two years, including a "Global Day of Action against TTIP, CETA and TiSA" in April 2015, a protest march from the UN to the Embassy of Australia in Geneva in July 2015, and a mass rally that drew as many as 90,000 people onto the streets in advance of U.S. President Obama's April 2016 visit to Germany.

The upcoming World Social Forum will provide an important convening and strategizing opportunity for those committed to defending the policy space necessary for governments to make progress towards meeting their Paris commitments - and, beyond that, to advancing the struggle for a just transition to democratically accountable renewable energy - for instance, here.

The full report can be downloaded from the PSI website here.

John Treat
is Special Initiatives Coordinator for the International Program for Labor, Climate and Environment at CUNY's Murphy Institute, where he also supports the TUED initiative. His background spans research, writing, teaching, organizing, advocacy and organizational development on three continents.

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