The deal was finalized on Monday, and later in the week, U.S. Trade Representative Michael Froman told reporters that cleaning up every word of a document covering 30 chapters could take about a month. And yet. EFF`s Jeremy Malcolm discovered a clear shift in the “legal cleansing” of the intellectual property chapter that will massively expand criminal penalties for copyright infringing activities that have no impact on the real market. Technically, the undergrowth has just replaced the word “paragraph” with “paragraph” in the following sentence: After each major treaty negotiation, the final text of the agreement is examined by a group of lawyers from the Contracting States. This procedure is commonly referred to as “legal cleansing” and may result in minor changes to the text of the contract. However, what happened during the legal review process of the Canada-EU Comprehensive Economic and Trade Agreement (CETA) is something extraordinary: entire articles were added and the controversial investor–state arbitration architecture was replaced by a new investment court system. To find out what really happened during the legal clean-up phase, we developed a new text-based tool in the form of data that traces textual differences between IITs. In the case of CETA`s investment chapter, we were surprised that the text published at the end of the negotiations in 2014 and the version resulting from the February 2016 legal clean-up differed by 19%. To get an idea of the magnitude of this percentage, 19% was also the difference in text we found when we compared the recently completed Trans-Pacific Partnership (TPP) investment chapter with its most similar predecessor, the United States-Colombia Free Trade Agreement, signed in 2006. However, the latter case concerned two separate contracts, while the first concerned two versions of the same contract. Given that the change highlighted above is undeniably a substantive change, the only basis for the change that could be made during the legal clean-up would be if it is a mistake. But is this a mistake? The EU has succeeded in turning what began as a legal cleansing into a de facto attempt to renegotiate CETA by autumn 2015.
The change of government in Canada played into the hands of the EU, as new Prime Minister Justin Trudeau was open to reconsidering the document negotiated by his Conservative predecessor Stephen Harper. On February 29, 2016, the final text of the CETA contribution “Legal Clean-up” was published. The EU press release states: “Following the legal revision of the text […] All key elements of the EU`s new approach to investment, as set out in the EU`s TTIP proposal of November 2015 and contained in the recently concluded EU-Vietnam FTA, have been included in the final text of CETA. A new version of CETA`s investment chapter was therefore negotiated under the guise of legal review. So what`s the take-home message? On the one hand, the EU has played its cards wisely by incorporating its updated investment preferences into an already finalised text, thereby improving its negotiating position vis-à-vis the US. On the other hand, it is also worrying that procedures formally described as mere legal cleansing can de facto lead to a renegotiation of a treaty text that has already been completed. The CETA negotiation process thus highlights the added value of text analysis in order to unpack the legal clean-up process and make changes between contractual versions visible and analyzable. • TPP, TTIP, CETA; Roll-back NAFTA, et al, Tribunal Penalties (ISDS) paid by Canadian lil` guy; $125 million and $25 million in legal fees for Reneging Corporate America. The US pays `0`. “You should have known”; President Bush. Ban the future TPP, et al, ISDS. But it`s not a shower.
On the contrary, the TPP gets a “legal peeling”. We expected changes to CETA. It has been clear for some time that the Commission considers it very important to try to align CETA with the recently agreed text of the EU-Vietnam FTA and its TTIP proposal. However, given Canada`s position in December, the magnitude of the changes to CETA`s ISDS provisions is somewhat surprising, as is Canada`s agreement to move forward with the creation of a multilateral investment court and an appellate mechanism with other trading partners. The fact that there are still important points to be agreed, particularly with respect to the Court of Appeal, may indicate that it has not been easy to reach this agreement. Perhaps also surprising is the scope and magnitude of the substantial changes brought about by such a “legal review” process. In an in-depth comparison of the two versions of CETA, we found that only a fraction of the 19% difference is due to legal adjustments in the strict sense: for example, simplification and clarification of wording (e.g. CETA 2014: “No party may…” ” in CETA 2016: “A Party may not. in Article 8.5 Performance Requirements), conversion from singular to plural, refinement of article numbering, etc.
Instead, the vast majority of amendments consist of substantial changes to the treaty text – de facto renegotiation. A new Article 8.9 has been added to “reaffirm the right of [Parties] to regulate within their territories in order to achieve legitimate objectives.” In addition, the architecture of dispute settlement has been completely redesigned (Articles 8.27-8.29) and new clauses on disclosure of third-party funds and ethics of arbitrators have been inserted (Articles 8.26 and 8.30). The review of an appeal proceeding took place somewhat earlier than anticipated. Since its agreement in principle in 2014, the text of CETA has been subject to legal control (also referred to as “legal cleansing” by the Commission in its press release of 29 February 2016). As long as the “clean-up” continues, lawmakers can keep their hands free from the TPP. But in 2016, they will be pressured to make a decision. Most analysts predict that voting will take place between Easter and Memorial Day. In early November, the “final text” of the TPP was finally released. The USTR even posted the thing on Medium, claiming it was now transparent after years of secrecy. As we have been told many times, the outcome document is not subject to change.
All that remained was to do a “legal clean-up,” a final process in which lawyers comb through the document word for word to ensure there were no typos or mistakes. Legal peeling is not when substantial changes can be made. In its revised form, the only criminal provision from which a country is exempted in these circumstances is the one to which the footnote is attached, namely the provision on ex officio measures. This means that, according to this amendment, all other criminal procedures and sanctions must be available, even if the infringement has absolutely no impact on the rightholder`s ability to exploit his work on the market. The only enforcement provision that countries can refuse in such cases is the power of state officials to take legal action themselves. Who should attend? This program is primarily aimed at lawyers. Other legal practitioners may also benefit from participation. Metadata cleansing and mining: legal, ethical and practical implications In 2015, it became clear that following the Commission`s further work on the investment chapter for TTIP (including a public consultation), the EU would seek significant changes during this legal review in order to bring CETA into line with the investment court system established in the EU-Vietnam FTA and the TTIP chapter. (like the United States in November). 2015). However, the process of agreeing on these changes has not been smooth.
9. In December 2015, Canada`s chief CETA negotiator, Steve Verheul, apparently ruled out the full inclusion of the EU`s proposed ICS in CETA, stating: “We have reached the balanced agreement supported by our leaders and I think we have to be very careful when it comes to rethinking the things that have been agreed and approved.” In September 2014, CETA negotiations were concluded and the legal review process was launched. Around the same time, public protest reached its peak against investor–state arbitration, a mechanism that allows private investors to file claims against governments to make amends for violations. Investor–state arbitration is included in thousands of bilateral investment treaties and is also expected to be part of the CETA and T-TIP negotiations. The EU has tried to counter public criticism by inserting a reformed version of investor–state arbitration into the September 2014 version of CETA.