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

Sat Jun 21 06:11:02 EDT 2014

As far as I see it this simply lets banks and financial institutions hire a company in, say, India to process data that earlier could not be exported out or the USA or EU.  Such data can be and is already subject to regulation in countries around the world.  I am sorry if I am missing an igov angle to all this that you evidently see.

--srs (iPad)

> On 21-Jun-2014, at 13:59, parminder <parminder at itforchange.net> wrote:
> 
> 
> 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 o
> 
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