Yes, they convinced me. I endorsed a letter to US-President Obama about ACTA transparency on behalf of an German digital market organisation where I serve in the board. My objection was, you know, we should not interfere into the internal matters of third nations. Obama is not our President. Internal matters, what a weird vintage principle?! Our former German Chancellor Helmut Schmidt still sticks to "non-interference" but he is the old guard. We are dealing with an entirely different situation,  that is a world where our legislation is made through confidential trade talks. Welcome to the world of global policy laundry!

 No more tariffs and quota for imports and exports of bananas and steam engines but legislation itself is now traded across the Atlantic, across the world.  Trade administration, not parliament, makes our laws. Billions of citizens are affected but don't get consulted in any way. Business and civil society stakeholders and our representative legislators are unable to inspect what is negotiated. Democratic control and transparency are missing, sounds all like exaggerated drama but it unfortunately isn't. So I made up my mind, got real, and we decided to sign the American letter to Obama, a call for procedural improvements for ACTA because it does not really matter anymore whose leader is capable to influence a process.

ACTA?

 So, on both sides of the Atlantic we find a great mystery about a planned secret treaty between the Western nations. The proposal is called ACTA, anti-counterfeiting trade agreement, and it is basically a followup to the famous TRIPS agreement (which was smuggled as an annex into the GATT Uruguay round by the United States). TRIPS non-tariff provisions do not fit well the spirit of GATT. TRIPS made emerging countries like India, Brazil, South Africa pay high attention to TRIPS and these nations nowadays mount confrontations and drama on all levels. The Indian generic pharma industry for instance is very concerned about the patent provisions, so is e.g. Medicines Sans Frontiere. Even free trade guru Jagdish Bhagwati was very sceptical about patent policy laundry with TRIPS. As a side effect TRIPS also removed the flexibility of all WTO nations to adjust their patent protection terms, a regulatory deadlock. TRIPS can be seen as an ugly duck of the GATT.

In the lights of the huge controversy, a TRIPS plus cannot be concluded within the World Trade Organization, steps beyond TRIPS are blocked by some dedicated nations. They are rather busy to undermine TRIPS applications and seek flexibilities. That is why our trade administrations decided to get even more "forum shopping" with a coalition of the willing and create a new dedicated trade process, named ACTA outside the WTO. Needless to say ACTA has little to do with removal of trade barriers and a classic free trade paradigm, though with the right spin all kinds of legislative differences between nations may be perceived as "trade barriers". 

 More is better?

The negotitiation mechanism of trade talks is designed under the premise that removal of actual trade barriers is always beneficial which is true (Sorry, I am no lefty anti-globalisation critic or protectionist, I am for free trade, studied trade economics). The GATT was a great success to achieve a removal of trade barriers worldwide. Now, the one-sided mechanisms of trade policy designed for a removal of classical trade barriers are abused for legislative maximalist export across the world.

First a coalition of the willing (trade officials from different nations) agrees on entirely new legislation, concludes the agreement and then their national legislators have to ratify and implement the trade agreement. In parallel trade negotiators trade banana import quotas and tariffs for adoption of these new legislative instruments by the developing Republic of Bananas. They parallelise the process with bi- and multilateral coalitions and agreements which include the same provisions.  The regulatory provisions in trade agreements are like liquid concrete. Legislators on all sides can hardly get rid off them.

In other words, democracy and sovereignty (great word, hope I learn to spell it correctly one time) of all our nations, not just the powerless nations, is seriously undermined by a technocratic group of trade officials with a simple more is better ideology and maximalist objectives.

A global trade regime needs a global governance perspective

We can't even see what they negotiate. On the EU side I got this reply today about an ACTA document access request under Article 255 of the EU treaties or regulation EC/1049/2001 which grants all citizens the right to access to public documents. Unfortunately not to a document written by a "Friends of the Presidency" group for the EU Council: 

09-2185en.reb.nh-ank

 So as we endorsed the call to Obama I would appreciate you to question our government as well on ACTA transparency. My government is actually not even involved. The German government (and the 26 other EU governments) granted a (confidential) mandate to the European Commission to negotiate with the US and other nations on their behalf...

The old principles of governance are dead.  Maybe I add a quote from the responsible EU-Trade Commissioner Ashton (a New York colleague asked if that was a Yes Men prankster stunt, no it isn't)

 Just as we have a transatlantic market for goods we should have a transatlantic "market for regulation". A solid and critical exchange about our respective approaches, and indeed some degree of competition for best practice in this area can actually help us spot the most efficient regulatory tools, which we can then share with each other. 

Admitted, "regulation" does not mean "legislation" but as ACTA (which is negotiated by the EU DG Trade) shows there is hardly any difference to be expected. These new principles of governance will not be easy to put into compliance with the old spirit of Lockean separation of powers, democratic governance, parliamentarism etc. 

 Actually, it does not look like the change we need.