[governance] Fwd: Leaked TISA Text Shows Clash On Data Transfer, Regulatory Transparency

[parminder]

See below a leaked document about secret negotiations in WTO on data 
transfer... US and EU regularly wax eloquence on multistakeholderism, 
openness and transparency for global IG forums, basically to block 
development of effective globally representative forums that in their 
view will needlessly meddle with their plans of employing the control/ 
governance of the Internet as the new means of global economic 
extraction. At the same time, these countries carry on with the real 
business of Internet governance in such forums as WTO through tightly 
controlled and completely non transparent means.

Whereas rich countries have forums like OECD to discuss norms about data 
and privacy, developing countries have none. (No, human rights council 
doesnt suffice, it by nature being a rearguard action corrective 
instrument rather than a positive, norms developing and social 
architecture shaping one - as, for instance, OECD's Internet Policy 
Principles are.) One keeps wondering why the civil society in IG space 
does not get the gross injustice of such an arrangement.

Rather than allow Internet related issues be dealt *only* in a piece- 
meal manner in different sectoral policy spaces, like the example of WTO 
below, we need an '*in addition* Internet centric treatment of such 
issues, centred on the new thinking, principles and norms that the 
Internet, in its social impact,  has contributed to our world. We need a 
OECD's CCICP like body at the global level.

parminder


*Inside U.S. Trade - 06/20/2014*

*Leaked TISA Text Shows Clash On Data Transfer, Regulatory Transparency*

Posted: June 19, 2014

The anti-secrecy group Wikileaks yesterday (June 19) released what it 
says is the draft text for a financial services annex to the Trade In 
Services Agreement (TISA), which is now being negotiated among selected 
members of the World Trade Organization.

The draft financial services annex, which is dated April 14, is a 
compilation of proposals, including from the United States, Panama, 
Japan and Switzerland.

A USTR spokesman declined to comment on the legitimacy or content of the 
leaked document. "Our goal in the TISA negotiations is to level the 
playing field for American workers and businesses by breaking down 
overseas barriers to our services exports. We are focused on creating 
jobs in a sector where the U.S. is the world leader," he said.

The heavily bracketed text reveals different approaches to the 
controversial issue of data transfers and insurance offered by postal 
insurance entities, as well as obligations regarding a party's right to 
impose prudential measures. It also reveals disagreements over which 
services can be offered across borders.

The April 14 date would put the drafting of this text just before the 
sixth round of TISA negotiations held from April 28 to May 2 in Geneva. 
The goal of that round was to move from proposals to fully bracketed 
negotiating texts in five sectoral annexes, including financial 
services, telecommunications and e-commerce, and competitive delivery 
services. The others are transportation services and domestic regulation 
and transparency.

The text reveals the parties even disagree over what the title should be 
for the section on data transfer rules. The U.S. proposes calling the 
section "Transfer of Information," while the EU proposes the heading of 
"Transfers of Information and Processing of Information." Panama seeks 
the heading "Data Processing and Treatment of Certain Information," 
according to the draft.

The U.S. is proposing an absolute right to transfer information in 
electronic and other forms for data processing where such processing is 
"required in the financial service supplier's ordinary course of business."

As an alternative, the EU and Panama are proposing language that states 
no party shall prevent transfers of information or the processing of 
information, including transfers of data by electronic means for data 
processing or prevent transfers of equipment, subject to rules 
consistent with international agreements.

But the proposed paragraph backed by the EU and Panama also says that 
nothing in the deal shall restrict the right of a party to protect 
personal data, personal privacy or the confidentiality of individual 
records and accounts, so long as such right is not used to circumvent 
the agreement.

Regarding the draft's section on prudential measures aimed at ensuring 
the soundness of the financial system, parties disagree over how to 
describe the obligations. The EU and Panama want the text to read that 
parties are not prevented from "taking" measures for prudential reasons, 
while the U.S. proposes they shall not be prevented from "adopting or 
maintaining" measures for prudential reasons.

The text also shows there is some disagreement over for whom governments 
may invoke prudential safeguards that may otherwise be in breach of the 
deal. Parties agree the carveout should apply to the protection of 
investors and depositors, policy holders or persons to whom a fiduciary 
duty is owed by a financial service supplier. But Panama and the U.S. 
want this expanded to "financial market users," according to the text.

According to the leaked draft, the U.S. and EU are proposing making this 
prudential carveout subject to dispute settlement. Their proposal, which 
is bracketed, shows they want a panel dealing with prudential issues and 
other financial matters to have "the necessary expertise relevant to the 
specific financial service under dispute."

The U.S. has also proposed language on a remedy in such disputes, which 
is bracketed. It states that where a panel finds a measure inconsistent 
with the agreement, but the impact is outside of the financial services 
sector, the wronged party cannot suspend benefits in the financial 
services sector.

If a ruling on an inconsistent measure affects the financial services 
sector and any other sector, however, the complaining party may suspend 
benefits in the financial services sector that have "an effect 
equivalent to the effect of the measure in the Party's financial 
services sector," according to the draft.

The draft also shows countries disagree on which financial services can 
be allowed to be offered across borders. It shows Norway is pushing for 
the cross-border supply of insurance on the exploration, development, 
and production of energy, as well as offshore energy properties. This 
proposal is backed by the American Insurance Association (/Inside U.S. 
Trade/, June 13).

But that wording is bracketed, showing opposition to that proposal, as 
are Norway's proposals on allowing the cross-border provision of 
insurance for ocean-going fishing vessels as well as passengers, not 
just goods, in terms of maritime shipping, commercial aviation and space 
launches.

The cross-border sale of insurance can raise objections by regulators 
because consumers under their jurisdiction buy policies from foreign 
companies that are outside of their purview. This could pose a problem 
in terms of consumer protections if a company fails to make good on a 
policy.

In the cross-border section, the leaked text shows the U.S. is pushing 
to permit the cross-border supply of electronic payment services.

The draft annex section on parties' rights regarding new financial 
services reveals disagreement over the extent to which governments 
should be able to determine the form through which such a new service 
may be provided, and the extent to which it requires government 
authorization.

The draft annex also shows parties have vastly different views on what 
obligations they should establish on transparency in regulation. It 
contains different proposals on this issue from countries like Panama 
and the U.S. that are bracketed from beginning to end.

Panama's proposal on "transparent regulations" is the shortest of these 
and does not contain express obligations on how governments should go 
about developing regulations. Instead, it only contains a general 
statement that parties recognize transparent regulations and policies 
governing the activities of financial institutions and financial 
services suppliers are important to facilitating market access and 
operations in a given market.

The Panamanian proposal states parties should make available to 
interested persons their domestic requirements and applicable procedures 
for completing applications related to the supply of financial services 
and provide information about the status of a given application.

Upon the request of an applicant, the party shall provide information 
about the status of its application and notify the applicant without 
"undue delay" that it needs additional information, Panama proposes. The 
paragraph also contains three options for providing an applicant with 
information about the time required to process his application.

An alternative proposed by the U.S. under the heading "Transparency" 
includes obligations that mirror regulatory practices in the U.S., such 
as advance publication of a regulation and a comment period, as well as 
having a reasonable lapse between the publishing of the regulation and 
its effective date.

Specifically, the U.S. says a party shall to the "extent practicable," 
publish in advance any regulations of general application relating to 
the financial services annex, and provide interested persons a 
"reasonable opportunity" to comment on the proposed regulations. It also 
says the parties should -- to the extent practicable -- address the 
substantive comments it received on proposed regulation.

/Inside U.S. Trade - 06/20/2014, Vol. 32, No. 25/





-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.igcaucus.org/pipermail/governance/attachments/20140621/c9449ead/attachment.htm>
-------------- next part --------------
____________________________________________________________
You received this message as a subscriber on the list:
     governance at lists.igcaucus.org
To be removed from the list, visit:
     http://www.igcaucus.org/unsubscribing

For all other list information and functions, see:
     http://lists.igcaucus.org/info/governance
To edit your profile and to find the IGC's charter, see:
     http://www.igcaucus.org/

Translate this email: http://translate.google.com/translate_t