© Springer International Publishing Switzerland 2015Christoph Herrmann, Bruno Simma and Rudolf Streinz (eds.)Trade Policy between Law, Diplomacy and ScholarshipEuropean Yearbook of International Economic Law10.1007/978-3-319-15690-3_5
University of Passau, Innstraße 39, 94032 Passau, Germany
In an unprecedented move, the Council of the European Union, on 9 October 2014 decided to officially publish the directives for the negotiations of the Trans-Atlantic Trade and Investment Partnership (TTIP).1 The document was not new to the interested public, though. The German version had already found its way into the limelight of trade policy through a website entitled www.ttip-leak.eu—run by a Green Member of the European Parliament (MEP). Other language versions may have been available elsewhere and earlier—you never know.
When I met Horst G. Krenzler for the first time in 2003, the internet was already a more or less established research tool for lawyers. However, that confidential trade and investment negotiation or dispute settlement documents could be “leaked”, i.e. published unofficially online, was beyond my imagination at that time—or what I remember in that regard. WikiLeaks was only set up in 20062 and its initial focus was on other matters than trade and investment policy.
Over the years, I had the privilege to meet Horst several times and he shared a tiny bit of his vast experience and insights on trade policy with me. We never touched upon the topic of transparency in trade negotiations nor on today’s increasing flow of “leaked” negotiation mandates, draft agreements, WTO panel reports or similar sources. Yet, I am pretty sure that Horst would have been very surprised about the violations of confidentiality regulations which occur every time a document is leaked—especially when committed by Members of the European Parliament. At the same time, he would have understood the change in the character of international economic law which drives the demand for this kind of documents. Trade and investment negotiations and disputes are perceived to be more about legislation, i.e. the setting of rules, than mere tit-for-tat bargaining. Trade and investment nowadays touch upon non-economic concerns, sometimes constitutionally protected, and attract the interest of the wider public, which in particular in the EU is increasingly opposed to free-trade and investment protection alike. The failure of the Anti-counterfeiting Trade Agreement (ACTA)3 in the European Parliament (EP) and the recent citizens’ initiative against TTIP4 are just two examples in kind.
In the present contribution, we will take a very brief look at the two main legal principles colliding in trade and investment negotiations and dispute settlement: confidentiality and secrecy on the one hand, and transparency on the other hand. We will argue that the current “balance” between the two may best be described as “transleakancy”—a word obviously yet unknown to the world5—i.e. a quasi-transparency via leaked documents only. After a brief look at the principle of transparency in international economic law and at the legal provisions governing confidentiality of as well as access to trade and investment documents in the EU and major international treaties, we will try to sketch some characteristics of “transleakancy” as a specific status between secrecy and transparency in the conclusions.
Transparency as a Legal Requirement in International Economic Law
The claims for more transparency in international economic law are manifold, even though it sometimes remains opaque what kind of transparency is actually being asked for. In its widest possible meaning, transparency could be understood to mean that absolutely everything that happens must be happening under public scrutiny, i.e. the widest possible dissemination of all available information about what is going on—online. One can easily see that NGO activists of the facebook generation may understand transparency in this sense. From this perspective, secrecy has a negative connotation: disguised illegitimate influence of unknown actors and betrayal of the wider public. However, less intensive and extensive forms of transparency are equally easily imaginable: dissemination of relevant information to relevant actors, namely national legislatures and other decision-makers.
Diplomacy has traditionally not worked in a very transparent way.6 Despite the claim by US President Woodrow Wilson as early as 1918, in the first of his 14 points, to abolish all forms of secret diplomacy, no rule of public international law categorically prohibits secret negotiations between governments. Only once agreements have been concluded, they shall be registered with the United Nations Treaty office (Art. 102 (1) UNCh). However, the non-compliance with that provision does not render the non-registered Treaty null and void, but only non-invokable before UN organs, including the International Court of Justice (Art. 102 (2) UNCh).
Since 2006, the WTO Transparency Mechanism for Regional Trade Agreements7 goes a lot further by demanding that WTO members make an “early announcement” of any negotiations envisaged to lead to a RTA.8 Of course, this obligation is limited to the fact of the start of negotiation as such and does not require any Government to make public its strategy, objectives, red lines or any other information that may endanger the success of the negotiations. With a view to negotiations in the WTO itself, the picture is quite different. Over the last 20 years and in particular after the Ministerial Conferences in Singapore (1996) and Seattle (1999) the WTO has developed an impressive practice of internal and external transparency and has largely—but not entirely—abandoned the old “Green Room” practices.9 As a rule, WTO documents are made public online and even restricted documents will normally be de-restricted after 2 months only.10 On the basis of Art. V:2 WTO Agreement and the 1996 Guidelines for arrangements and relations with Non-Governmental Organizations,11 the WTO Secretariat informs NGOs and consults with them extensively; however, due to reservations on the part of WTO members, NGOs cannot be formally involved in WTO decision-making.12
Similarly, there is no general rule under public international law that obliges sovereign States to publish their domestic legislation, in particular not in a foreign language. Again, WTO law is an exception: Art. X of the GATT requires that Members publish “promptly” any laws, regulations, judicial decisions and administrative rulings of general application pertaining to practically all aspects of external trade law. Other WTO provisions contain similar obligations.13 The external trade laws of WTO members are, furthermore, subject to the Trade Policy Review Mechanism (TPRM) including a factual presentation and extensive Q&A.14 However, the purpose of this kind of transparency is not to enhance the legitimacy of WTO Members’ trade laws and regulations. Its function is merely to enable other Members to monitor their compliance with WTO law and to enable economic actors to take notice of them in order to make rational business choices. Accordingly, the WTO online glossary refers to transparency as “[d]egree to which trade policies and practices, and the process by which they are established, are open and predictable”.15 Ultimately, transparency is designed to foster efficient resource allocation—not more but also not less.16
With regard to dispute settlement within the WTO, things have changed a lot in the last years. The WTO dispute settlement system, despite limiting formal party status to WTO members, has opened up to NGOs and the wider public in several ways: they may be involved in the drafting of parties’ submissions, submit amicus curiae briefs on their own initiative or may be heard as experts. Beginning in 2005, hearings of panels, the Appellate Body or arbitration panels have occasionally been opened to the public. Written submissions are either made public by the parties to the dispute themselves or they have to provide written summaries (Art. 18.2 DSU). Panel and Apellate Body reports are made public once they have been translated into the three official languages of the WTO.17
In the investment field, transparency is also making progress, albeit—lacking a multilateral forum and body of law—more slowly than in the WTO. As the impact of investment agreements on domestic policy choices is even more apparent and arguably more considerable than that of the WTO legal framework, this has been increasingly criticised, together with other aspects of Investor-State Dispute Settlement (ISDS).
The negotiation of bilateral investment treaties does not have to be made public prior to registration with the United Nations Treaty Office. However, increasingly, international trade agreements contain investment chapters, so that the WTO early announcement obligations also catch the investment part. Consequently, the global availability of BITs depends on voluntary registration or notification of agreements by the contracting parties of such agreements.18 With regard to ISDS, external transparency beyond the publication of the mere existence of a dispute depends on the applicable lex fori and arbitration rules on the one hand, and on the approach of the parties to a dispute on the other hand. Under the ICSID arbitration rules, written submissions by non-disputing third parties may be allowed, hearings may be opened to the public (if no party objects) and awards may be published by the Centre, but only with the consent of the parties.19 Parties are of course free to publish documents on their own initiative. Under UNCITRAL arbitration rules, transparency was considered to be slightly weaker,20 but for future agreements, the Convention on transparency for investor-state dispute settlement21 should improve the situation significantly. Under the new rules, most documents in the proceedings would have to be made public as a matter of principle. The 2014 draft EU–Canada trade and investment agreement (CETA)22 already refers to these rules.23