Over a million people in Europe have signed petitions against the Transatlantic Trade and Investment Partnership. In Britain, a YouGov opinion poll showed that those who thought the plan would be bad for Britain outnumbered those who thought it would be beneficial by three to one.  Unfortunately, YouGov did not go on to ask respondents “do you have the faintest idea what the previous question was about?”  To be fair, however, a third of those questioned had the good sense to be ‘don’t knows’.

TTIP, currently being negotiated between the EU and the USA. is an ambitious attempt to create a North Atlantic free trade area. With freedom from tariffs and harmonisation of regulation, business could compete and product move freely from California to Croatia.  What’s not to like? is my instinctive reaction – and one probably shared by most readers of this newspaper. But the protesters may have a point.      

Some degree of privacy is indispensable to serious bargaining, which incorporates an element of bluff, and too much transparency can prove an obstacle to necessary compromises.  But the two cities in which these negotiations are being principally conducted are Brussels and Washington, the lobbying capitals of the world, where large corporations spend lavishly in the finest restaurants.  In the absence of a more open process it is very difficult to refute the general allegation that the TTIP agenda is driven by big business interests, or specific claims that Europe might – for example – find itself moving towards a US style patent system which is increasingly an obstacle rather than a spur to innovation.

The issue is aggravated by Europe’s ‘democratic deficit’, which undermines confidence that agreements will be the product of the legitimate legislative scrutiny which characterises – some – national parliaments.  The European Commission, recognising that reticence is a problem, has recently published draft texts of its position in a number of contentious areas.

But the principal focus of populist concern is the potential inclusion in the deal of provisions for Investor-State Dispute Settlement (ISDS). From the 1980s, this process became a standard element of trade deals between the United States and underdeveloped countries.  ISDS requires that claims that signatory states had expropriated investors’ property are adjudicated in an international forum. ISDS restricted sovereign immunity and the scope of local law.  But poor countries often lacked well developed or independent judicial systems and were in urgent need of investment from abroad; the ability of governments to restrict their freedom of action in this way gave a degree of protection from short-sighted policies and corrupt leaders, to the benefit of both foreign investors and the local population.

But similar provisions were extended to agreements between developed nations.  ISDS was incorporated in the North Atlantic Free Trade Agreement, although it is hard to argue that the Canadian law and judicial system are inadequate for the protection of foreign investors.  In the last decade, some large – predominantly  US – companies have become aggressive in claiming rights under ISDS.  The US tobacco giant Philip Morris has used ISDS treaty provisions to resist local anti-smoking measures. Australia refused to accept ISDS in its investment agreement with the United States, but Marlboro man nevertheless used the inclusion of the procedure in the Hong Kong-Australia agreement to commence proceedings.  

          It is impossible to say that protesters who claim that ISDS might be used to attack Britain’s National Health Service are wrong since a related case was brought in Canada.  Even if few if any of these claims have much legal merit, the threat of litigation can itself have  a chilling effect on policy – the Australian litigation has led New Zealand to defer similar anti tobacco measures.  

           It would be much easier to sell TTIP to a sceptical European public if ISDS were no longer part of it.