Traditionally, almost everything about trade and investment negotiations is classified until the job is completed. In many countries even legislators are not allowed to see the work in progress until it comes to them for final approval. There is, however, nothing immutable about this traditional formula. It can be argued that that the better informed the public, and the more opportunities for public input, the better the final legislative result. In the case of trade negotiations, this argument is balanced against the value of secrecy to the process itself; it is hard to give away anything in a negotiation if the negatively affected parties are in the room.
While governments are justifiably concerned about the influence of vested interests in trade policy, such interests usually find avenues of influence even in closed processes, and therefore the more widely the doors are thrown open the more the final outcome represents the views of the typically under-represented, including environmental and labour interests.
Option 1:Public participation in the negotiation phase
Allows the negotiating position to be informed by a full range of sustainable development related stakeholders. Gives greater legitimacy, buy-in to final negotiating position.
Examples
Parties can release their negotiating mandates (see Section 6.1) prior to entering a negotiation. The EU released its negotiating mandate prior to entering into the TTIP negotiations.
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Parties can convene consultations on key negotiating issues to help shape the negotiating mandate. The EU TTIP process included an online consultation on questions of ISDS in the investment provisions of TTIP (complemented by consultation in the member states and the European Parliament). This can be done before the negotiating mandate is finalized, during the talks, or both
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Parties can release the consolidated texts (negotiating drafts) for comments during the negotiations. FTAA negotiators released three sets of consolidated texts.
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Parties can release their own proposed text and positions during negotiations. The EU released all of its proposed text and position papers during the TTIP negotiations.
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Parties can regularly consult with parliamentarians during the negotiations, briefing them on the progress of the talks and getting their input on negotiating direction. This can be done with a select group of parliamentarians (e.g., a Committee on Trade) or with the entire parliament.
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Option 2:Public access to dispute settlement
Allows stakeholders to be fully aware of the sustainable development implications of disputes, and can allow for input from non-governmental perspectives to help ensure the gamut of sustainable development perspectives are accounted for in deliberations.
Examples
Parties could make public any notice of dispute or arbitration, and all documents pertaining to that dispute or arbitration (subject to confidentiality reservations).
UNCITRAL’s Rules on Transparency (as noted in Section 5.4) are an excellent model in the investment arbitration context, making public in each case:
- Notice of arbitration
- The details of the case
- All written submissions and claims
- All decisions of the tribunal
To avail themselves of such provisions, parties might either specify UNCITRAL as the designated forum for investment arbitration, or specify the levels of transparency that they agree to mandate for whatever forum they do designate.
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Parties could make dispute settlement proceedings open to the public.
- The WTO allows public closed-circuit access to both panel and Appellate Body hearings, where the disputing members have so agreed and where no sensitive commercial information is being discussed. (Written pleadings are still classified).
- The NAFTA parties regularly live stream the arbitral proceedings under the agreement’s provisions for investor–state dispute settlement.
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Parties could make explicit provision for receiving amicus curiae (friends of the court) briefs in trade disputes:
“Non-governmental persons established in a Party may submit amicus curiae briefs to the arbitration panel in accordance with the following paragraphs.
Unless the Parties agree otherwise within five days of the date of the establishment of the arbitration panel, the arbitration panel may receive unsolicited written submissions, provided that they are made within 10 days of the date of the establishment of the arbitration panel, and in no case longer than 15 typed pages, including any annexes, and that they are directly relevant to the issue under consideration by the arbitration panel.
The submission shall contain a description of the person making the submission, whether natural or legal, including the nature of that person’s activities and the source of that person’s financing, and specify the nature of the interest that that person has in the arbitration proceeding. It shall be drafted in the languages chosen by the Parties in accordance with Rules 49 and 50 of these Rules of Procedure.
The arbitration panel shall list in its ruling all the submissions it has received that conform to the above rules. The arbitration panel shall not be obliged to address in its ruling the arguments made in such submissions. The arbitration panel shall submit to the Parties for their comments any submission it obtains.” (CETA Annex 29-A, paragraph 46)
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Parties could make explicit provision for receiving amicus curiae (friends of the court) briefs in ISDS:
“After consultation with the disputing parties, the arbitral tribunal may allow a person that is not a disputing party, and not a non-disputing Party to the treaty (‘third person(s)’), to file a written submission with the arbitral tribunal regarding a matter within the scope of the dispute.
A third person wishing to make a submission shall apply to the arbitral tribunal, and shall, in a concise written statement, which is in a language of the arbitration and complies with any page limits set by the arbitral tribunal:
- a) Describe the third person, including, where relevant, its membership and legal status (e.g., trade association or other non-governmental organization), its general objectives, the nature of its activities and any parent organization (including any organization that directly or indirectly controls the third person);
- b) Disclose any connection, direct or indirect, which the third person has with any disputing party;
- c) Provide information on any government, person or organization that has provided to the third person
- i. any financial or other assistance in preparing the submission; or
- ii. substantial assistance in either of the two years preceding the application by the third person under this article (e.g. funding around 20 per cent of its overall operations annually);
- d) Describe the nature of the interest that the third person has in the arbitration; and
- e) Identify the specific issues of fact or law in the arbitration that the third person wishes to address in its written submission.
- In determining whether to allow such a submission, the arbitral tribunal shall take into consideration, among other factors it determines to be relevant:
a) Whether the third person has a significant interest in the arbitral proceedings; and - b) The extent to which the submission would assist the arbitral tribunal in the determination of a factual or legal issue related to the arbitral proceedings by bringing a perspective, particular knowledge or insight that is different from that of the disputing parties.
The submission filed by the third person shall:
- a) Be dated and signed by the person filing the submission on behalf of the third person;
- b) Be concise, and in no case longer than as authorized by the arbitral tribunal;
- c) Set out a precise statement of the third person’s position on issues; and
- d) Address only matters within the scope of the dispute.
The arbitral tribunal shall ensure that any submission does not disrupt or unduly burden the arbitral proceedings, or unfairly prejudice any disputing party.
The arbitral tribunal shall ensure that the disputing parties are given a reasonable opportunity to present their observations on any submission by the third person.” (UNCITRAL Rules on Transparency, Article 4)
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Option 3:Public participation via advisory bodies (either during negotiations or in implementation, or both).
These should be multistakeholder groups encompassing, for example, non-governmental organizations, academics, private sector, trade unions.
Multistakeholder advisory bodies can help ensure that a wide range of sustainable development-related concerns are aired with respect to the negotiation and implementation of trade and investment agreements.
Examples
Advisory bodies can be created as standing bodies with an ongoing mandate.
The U.S. Trade Representative and the Environmental Protection Agency jointly convene a standing body called the Trade and Environment Policy Advisory Committee to “provide the USTR with policy advice on issues arising in connection with the development, implementation and administration of trade policy of the United States that involve the environment.” [Charter of the Trade and Environment Policy Advisory Committee, Article 3.] At the conclusion of any trade negotiation, the TEPAC provides a report to the President, Congress and the USTR that assesses the agreement.
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Advisory bodies can be created with a mandate that is tied to a specific agreement.
The NAAEC [article 16] creates a permanent Joint Public Advisory Committee, with a regular budget, mandated to meet at least annually and with the ability to submit unsolicited advice to the Council of Ministers.
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CETA will create a Civil Society Forum to “conduct a dialogue on the sustainable development aspects of this Agreement.” (Article 22.5(1))
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It has already been noted above that there should be a high level of public participation in the conduct of impact assessments of trade agreements (see Section 6.2), and public participation in dispute settlement via submissions was discussed in Section 3.8.
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