Sleeping Monster: The Trade in Services Agreement (TiSA), Scheduling, and “Standstill” and “Ratchet” Clauses

By Lambert Strether of Corrente.

In our previous two posts in this series (on TiSA and the supply chain and its expansive definition of services), we looked at TiSA as a sort of dream of in the hive mind of our globalist elites; and I mean “dream” rather in the way psychologists mean it, as a product of the unconscious — in this case a collective one — and a structure that provides insight every waking moment and action of the dreamer, and not in the weaker sense of “The American Dream,” whatever that is, or “I wouldn’t dream of it.” Like a dream, too, TiSA seems totalizing and reasonable, to the dreamer, dreaming, but is also phantasmagoric, full of shifting scenes, displaced objects, and hidden meanings when analyzed, rather like Kafka’s The Castle (and now, see the Appendix).

Schedules and Standstill plus Rachet Clauses

I like the word “schedule.” It conveys a fine air of inevitablity — There Is No Alternative — as of trains running on time in dreamlike, frictionless progression. Unlike “Service,” “Schedule” is definable and well-defined in TiSA. Using, again, Professor Jane Kelsey‘s TiSA: Foul Play (PDF) as our guide, we find the following definitions (again, this is Kelsey’s summary, not TiSA verbiage):

Schedule

A Party’s list of binding commitments, primarily on market access to services markets and national treatment, but with scope to make commitments on additional matters, such as adopting an annex

And if we step through the chain of definitions, we’ll get not only a high-level view of how TiSA is being negotiated, we’ll see what TiSA implies for national policy. “Parties” — that is, each of 23 World Trade Organization (WTO) members, including the EU[1] — have schedules:

Party’s schedule

A schedule that sets out the commitments that have been adopted by a party through negotiation.

Schedules can exclude government measures or services; the negotation between parties is structured by service “sectors” (for sectors, see the Appendix on WTO/120).

Limitations

The explicit exclusion of a government measure or an aspect of a service from a sectoral commitment in a country’s schedule.

Note that limitations are negotiated; in other words, TiSA is structured as “opt out” (by sector) not “opt in.” Limitations apply at the nation-state level:

Policy space limitation

This limitation in a party’s schedule protects its right to maintain and introduce new measures that are inconsistent with its obligations to specified rules. In TiSA that applies to national treatment. These limitations are usually specified by name or by the service sub-sector or activity.

So, for example, the United States could negotiate to prevent the privatization of the United States Postal Service (USPS); unlikely, since the globalist elite would prefer that the USPS should be destroyed[2], but a successful negotation in this policy space would conclude with a limitation in our schedule.

Sector

The description of the general service category that is subject to commitments or rules.

If the negotiation to save the USPS were to be conducted, it would be in the “Postal services” sector (CPC code 7511), but see the Appendix for the squishiness of “sector.”

Subsector

A more specific service category within a general category of a service.

For example, per W/120, “Software implementation services” (CPC 862) is a subsector of “Computer and Related Services” is a subsector of “BUSINESS SERVICES.” (Only lowest branches of W/120 are numbered, unlike other classification systems like NAICS; I’m not sure why this is.)

Standstill

The rule applying in a particular subsector at the time the agreement comes into force (unless another time is stated) cannot be made any more restrictive. This applies in TiSA to national treatment, where domestic services and suppliers receive better treatment than their counterparts from other TiSA parties.

For example, if there is a rule protecting domestic suppliers — and the whole point of TiSA is to make such rules go away — of nursing services, through a union, say, those protections cannot be made stronger.

Ratchet

Any new liberalisation by a party is automatically locked in to that party’s schedule. In TiSA that applies to national treatment (removing discriminatory restrictions on foreign suppliers or preference to national suppliers).

TiSA policy commitments, once made, cannot be weakened. Foul Play explains the difference between a ratchet and a standstill:

A standstill… preserves the status quo in a service, but prevents any new or stronger protections for locals, such as reserved occupations… [A] ratchet locks in all new liberalisation.

Welcome to the Hotel California[3]:

Last thing I remember, I was
Running for the door
I had to find the passage back to the place I was before
‘Relax’ said the night man,
‘We are programmed to receive.
You can check out any time you like,
But you can never leave!’

(Hotel California, too, is a phantasmagoric dream: “My head grew heavy and my sight grew dim / I had to stop for the night.”)

Policy Implications of TiSA

Let’s say that you, as one flavor of leftist, have developed and sequenced a list of universal concrete material benefits, and your agenda puts the low-hanging fruit first. A non-exhaustive list might look like this:

1) Sector: “HEALTH RELATED AND SOCIAL SERVICES”: #MedicareForAll
2) Subsector: “Postal services”: A Post Office Bank
3) Subsector: “Computer and Related Services”: Hand-marked paper ballots, hand-counted in public
4) Sector: FINANCIAL SERVICES: Debt Jubilee.

Now suppose that the United States signed TiSA tomorrow; clearly, under standstill, unless “policy space limitations” had been carved out for each of the four sectors, those concrete material benefits could not be pursued, and under ratchet, they would “never, ever” come to pass.

Conclusion

It seems obvious to me that TiSA must be defeated, just as TPP was. However, I think it’s clear that it’s not enough to defeat an agreement; the globalist elites and the Trade Blob will simply break that agreement up for parts and start pushing a new one, so they need to be defeated, not merely their agreements. (Look how the administration has retreated on NAFTA, for example.) How that is to be done — how to shake the elites’ shoulder and wake them from their dream — is not clear to me, but to gain the concrete material benefits, that is what has to be done. I think one first step would be to create an agenda, lay the items of that agenda against TiSA schedule commitments, and say “They shall not pass!”

NOTES

[1] Global Affairs Canada: “The 23 Members of the WTO participating in the TISA negotiations (i.e. the Parties) are: Australia, Canada, Chile, Chinese Taipei, Colombia, Costa Rica, the European Union, Hong Kong (China), Iceland, Israel, Japan, Liechtenstein, Mauritius, Mexico, New Zealand, Norway, Pakistan, Panama, Peru, South Korea, Switzerland, Turkey, and the United States.”

[2] And its real estate sold off by and to cronies, as with the UK’s NHS.

[3] Perhaps more precisely: One might say that TiSA is a roach motel: The standstill is the box; and the ratchets are the sticky glue that keeps the roaches trapped inside the box.

APPENDIX: On the Definition of Services

After trying and failing to fight my way through the thicket of trade standards to a glossary definition of “service,” I found that the Swiss Secretariat for Economic Affairs had concluded, in its material on International Trade in Services, that:

It is thus difficult to encapsulate the notion of “service” in one definition.

And I concluded:

In other words, the definition of “services” is a mess (but then you knew that).

I never did find a definition of the term service, so the whole effort had rather turned into a snipe hunt, but just to make sure I hadn’t been lazy or gone crazy, I queried trade activist Professor Jane Kelsey by email. She answered (with light copy edits):

The agreements apply expansively to “measures affecting trade in services”

“Measures” is defined expansively

“Affecting” is expansive

“Trade” is defined expansively as the “supply” of a service, which is the entire supply chain

Trade is defined in terms of the four modes

And the commitment of services to the core rules is traditionally defined by reference to the WTO’s W/120 list that draws from the UN CPC list from 1991. However negative lists may not refer to the CPCs. That is as close as any definition of ‘services’ gets.

(I’ll get to negative lists and CPCs another time, along with the four modes.) So I went and found W/120, which is WTO publication “MTN.GNS/W/120”, dated “10 July 1991,” . W/120’s cover page has this note (I’ve helpfully underlined the qualifying language):

The secretariat indicated in its informal note containing the draft classification list (24 May 1991) that it would prepare a revised version based on comments from participants. The attached list incorporates, to the extent possible, such comments. It could, of course, be subject to further modification in the light of developments in the services negotiations and ongoing work elsewhere.

Alrighty, then. This is the paragraph on which the entire edifice of international agreements on trade in services is erected: So far as I can tell, it’s an informal draft (!!), subject, “of course,” to later revision (!!!). But wait! There’s more!

W/120 does not give a glossary definition of the term “service”; rather, it’s a primitive taxonomy of a large number of services, like “Professional Services,” “Printing, Publishing,” “General Construction Work for Buildings,” and, of course, the ubiquitous “Other.” It’s rather as if Newton, on discovering that prisms could split a beam of light into the visible spectrum, had gone on to define what a prism could do, and the nature of the spectrum, by listing the colors ROY G. BIV, instead developing his theory of light and color. As I wrote:

If the terms of an agreement are not clear, then the potential scope for the application of the agreement is infinite (as indeed the dealmakers whose dreams are driving TiSA would like it to be). TiSA’s utopia, then, is totalizing.

In other words, “services” means whatever the lawyers in The Trade Blob say it means. I hope readers — and the trade experts encountering this series, if any — will forgive me if I’m not sanguine at that prospect.

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About Lambert Strether

Readers, I have had a correspondent characterize my views as realistic cynical. Let me briefly explain them. I believe in universal programs that provide concrete material benefits, especially to the working class. Medicare for All is the prime example, but tuition-free college and a Post Office Bank also fall under this heading. So do a Jobs Guarantee and a Debt Jubilee. Clearly, neither liberal Democrats nor conservative Republicans can deliver on such programs, because the two are different flavors of neoliberalism (“Because markets”). I don’t much care about the “ism” that delivers the benefits, although whichever one does have to put common humanity first, as opposed to markets. Could be a second FDR saving capitalism, democratic socialism leashing and collaring it, or communism razing it. I don’t much care, as long as the benefits are delivered. To me, the key issue — and this is why Medicare for All is always first with me — is the tens of thousands of excess “deaths from despair,” as described by the Case-Deaton study, and other recent studies. That enormous body count makes Medicare for All, at the very least, a moral and strategic imperative. And that level of suffering and organic damage makes the concerns of identity politics — even the worthy fight to help the refugees Bush, Obama, and Clinton’s wars created — bright shiny objects by comparison. Hence my frustration with the news flow — currently in my view the swirling intersection of two, separate Shock Doctrine campaigns, one by the Administration, and the other by out-of-power liberals and their allies in the State and in the press — a news flow that constantly forces me to focus on matters that I regard as of secondary importance to the excess deaths. What kind of political economy is it that halts or even reverses the increases in life expectancy that civilized societies have achieved? I am also very hopeful that the continuing destruction of both party establishments will open the space for voices supporting programs similar to those I have listed; let’s call such voices “the left.” Volatility creates opportunity, especially if the Democrat establishment, which puts markets first and opposes all such programs, isn’t allowed to get back into the saddle. Eyes on the prize! I love the tactical level, and secretly love even the horse race, since I’ve been blogging about it daily for fourteen years, but everything I write has this perspective at the back of it.

18 comments

  1. flora

    “A standstill… preserves the status quo in a service, but prevents any new or stronger protections for locals, such as reserved occupations…

    So, it locks in the status quo at the time of TiSA’s final passage. That, I surmise, is why ALEC is working so hard, feverishly even, at the state level to roll back workplace safety, environmental, and labor laws (among its many other deregulatory efforts).

    This sounds like a modern version of the Enclosure Movement, where it is not land but democracy that is being enclosed and removed from public use in state and national governments.

    This is a terrible “trade” deal.

    Thanks for this post.

    Reply
    1. flora

      adding:
      “A standstill… preserves the status quo in a service, but prevents any new or stronger protections for locals, such as reserved occupations… [A] ratchet locks in all new liberalisation de-regulation “.

      With no democratic accountability. They are trying to rollback both the 20th C. good-government changes and the 19th C expansion of the voter franchise. imo.

      Wikipedia say of the Enclosure Movement:
      “The process of enclosure created a landless working class that provided the labour required in the new industries developing in the north of England. For example: “In agriculture the years between 1760 and 1820 are the years of wholesale enclosure in which, in village after village, common rights are lost”.[3] Thompson argues that “Enclosure (when all the sophistications are allowed for) was a plain enough case of class robbery.”[4][5]”

      The English Chartist Movement began in 1838 – eighteen years after the Enclosures ended. Of Chartism Wikipedia says:
      “Support for the movement was at its highest in 1839, 1842, and 1848, when petitions signed by millions of working people were presented to the House of Commons. The strategy employed was to use the scale of support which these petitions and the accompanying mass meetings demonstrated to put pressure on politicians to concede manhood suffrage [the vote]. Chartism thus relied on constitutional methods to secure its aims, though there were some who became involved in insurrectionary activities, notably in south Wales and in Yorkshire.”

      2 of the 6 reforms Chartism called for were:

      1. A vote for every man (earlier, “every person” but this was dropped due to middle-class pressure)[1] twenty-one years of age, of sound mind, and not undergoing punishment for a crime.

      2. The secret ballot to protect the elector in the exercise of his vote.

      This TiSA agreement would roll all that back. I suppose one could still vote on non-economic issues, preserving the appearance of democracy.

      I won’t vote for any politician or party who supports or approves this deal.

      Reply
      1. Vatch

        I won’t vote for any politician or party who supports or approves this deal.

        Yes, any politician who supports TiSA must be vigorously opposed! I’m not so sure about a party — how does one define a party’s support? Is it what’s in the party’s quadrennial platform? There’s often a fair amount of nonsense in party platforms that’s inserted to placate a faction.

        Reply
    2. Ox

      No, TISA is meant to become part of GATS in the future so it locks in the status quo on either January 1, 1995 or February 26, 1998.

      That standstill is the reason the ACA is being rolled back, and Dodd-Frank is too.

      Because we made a horrid committment in an Understanding signed on Feb 20, 1998, We have to go back to the level of financial services regulation that existed in the 1990s.

      That means no protections for people with pre-existing conditions. Notice how both parties are laying about all this.

      They also are lying about when the TISA negotiations began, they actually began in 2006.


      >This sounds like a modern version of the Enclosure Movement, where it is not land but democracy that is being enclosed and removed from public use in state and national governments.

      Thats exactly what it is and what they are stealing is the human race’s entire future in the world we have always wanted where machines do all the work. Rather than paradise, they want to make the OWNERSHIP of that world of our world –

      that until 1995 was owned by people who thought we could vote for policies, like affordable healthcare, and thought we had ‘human rights’, but now, this movement against human rights wants to turn our world into hell by taking everything away from the planets people with binding agreements to privatize and carve up everything, for corporations – so they, who are basically a cult, because this is what cults do, can deny life itself.

      I’m not kidding.

      Thats what GATS did and this deal is an attempt to make that 1995 deal legitimate against all common sense.

      Its already killed a million Americans (by denying them healthcare they would have gotten in civilized nations so the healthcare system could be kept in a state of near emergency for 20 years while the Doha negotiations dragged on. Now they hope to wrap it up in Buenos Aires in four months. Millions of US jobs are on the table. The US swore in G20 meeting that all protectionist schemes adopted after 2008 will be rolled back. (Shows how little we actually have democracy, GATS and its progeny have turned it into a sham, with even the “good” politicians, media, NGOs, etc. lying because the truth is just so horrible. (“We would lose our funding!” a leading economist at a major think tank confided in me when I pointedly asked why they glossed over something this important, with euphemisms.)

      Targeted are decent jobs because they pay too much, in many cases five or six or even more times what they would pay in places like India. Some people see that as throwing money away. They cant just sit there and let people make decent money when there is a race to the bottom they want to trigger. They are determined to do it. This entire 2016 election was all about maneuvering the country into this trap.

      Don’t forget, they are privatizing higher education, so they need skilled people to replace all of our students who won’t be able to go to college. Thats safer too because they are typically wealthy peoples children. They will be paying for the six years of experience, while American young people want decent wages because of the huge levels of debt they often have by the time they get their advanced degree.

      So most don’t realize it yet, but the frame for a long time in Washington and Mumbai has been that we pampered, protectionist Americans have priced ourselves out of our own job markets.

      Thats great, they say, *wink*. We know. (rolling eyes) But, no worries. Why BUY an expensive workforce when you can rent one?

      http://web.archive.org/web/20050225111205/http://commerce.nic.in:80/wto_sub/Invest/sub_invest-W39.htm

      keep an eye on TFS!

      Reply
  2. Alfred

    TiSA sounds like the “governmentality” that is supposed to replace “government,” in the next stage of progress. (That’s progress with a question mark, of course.) Once government is obsolete, or perhaps just reaches a tipping point in obsolescence, I can’t imagine what use things like voting or courts would serve.

    Reply
  3. Hotairmail

    Understand Brexit in this context. It is an attempt to wrest back some semblance of control over people’s lives. And it will be a target to be destroyed by those self same elites.

    Reply
    1. Ox

      Except Brexit just ends up making all those things worse!

      Really- Because the UK and the US will become a big law nullifying trade deal party..

      You scratch my back and I’ll scratch yours.

      You see, trade deals do an end run around democracy, forever. Every single trade deal is a laundry list of the worst possible policy ideas, that often have been repetedly rejected. For example, TiSA hijacks immigration for corporations like body shops which will get an entitlement to move their lowest paid workers into their highest paid markets. This is being framed as the repaying of a debt.

      The US was basically turned into the debtor of a debt we now must repay, what a shame, with all the decent paying jobs. After all, we got rich, right? Now its time to pay back the richest people in the poor countries. (Trickle down economics!)

      In exchange, they privatized their healthcare and education, what a sacrifice! In exchange, we get locked into deals that coincidentally block affordable health care (it would be stealing opportunity from foreign providers of those services, my friends!) and higher education. (After all, it only gives poor people unrealistic expectations.)

      Do you know that scene from Good Fellas about “Busting out the joint”- basically running up debts on a restaurants tab, and finally, torching it for the insurance money.. thats whats being done to our country.. And because people will not be happy, they want us to be dirt poor. They are placing their bets in the developing world but their bets are going to pan out much differently than they expect because their counterparts in India and China ARE JUST AS GREEDY AS THEY ARE and will prevent any increase in income that would drive increases in consumer spending.. At the same time, the number of jobs outsourced, depended on by firms which already are paniicking –

      -because the numbers of L1 and H1-B visas has stalled going up, (each one representing 6 yrs of outsourcing) will be far fewer than what they expect because jobs are going away everywhere. So, what will happen will be a nightmare of anger and broken dreams and failed expectations and bad blood all around.

      So, the GOP/Dems also want to get rid of Social Security’s defined benefit just in time for the job crash, and send our sick people overseas for Care, as a condition of getting insurance, this will happen because of how WTO rules work, and because we committed health insurance in the GATS, unlike almost all other countries. the same deal also makes the GOP’s changes in that area irreversible. with WTO and Indian help. They have been planning this for decades.

      Its all there in the literature, hiding in plain sight.

      Reply
  4. jo6pac

    TISA does pass that will help the demodogs on the Question of Medi-Care for All. They can run on we tried but the new and improved trade deal that the repugs passed stops us from helping you serfs.

    Alfred, correct on voting and courts not that doesn’t happen already. Then that would save billions that the so-called congresscritters could pass on to their puppet master the .001%

    Reply
  5. Chauncey Gardiner

    Thank you for your TiSA series, Lambert. I have a strong suspicion that among other onerous requirements, this document is intended to legally bind us to bailouts of Wall Street for their willful recklessness and gross negligence in the issuance, underwriting and risk management of securities and derivatives, and to make restoration of the Glass-Steagall Act so difficult and costly as to effectively prevent that.

    Your question about how to address these so called “Trade Agreements” from being repeatedly initiated by the usual suspects is well taken. It will require that we regain control of and restore our democratic republic. I echo flora’s concluding statement.

    Reply
  6. David

    From the Global Unions Statement of Priorities for the 10th WTO Ministerial Conference (MC10), Nairobi, Kenya 15-18 December 2015

    …The conclusion of this Agreement could lock-in and intensify the privatisation and commercialisation of quality public services, further deregulate the financial markets and impose a regulatory straightjacket on sovereign nations. In particular, the inclusion of the so-called ratchet and standstill mechanisms would have the effect of locking in the current degree of liberalisation and confining public policy space. Re- municipalisation of public services would no longer be a possible option.

    The international trade union movement has serious concerns about how TiSA could undermine the single undertaking mandate of the Doha Round. Trade unions are calling governments to:

    – completely exclude public services and utilities, including education and health care, from the scope with an explicit carve-out in the core texts of all multilateral and plurilateral negotiations on services;

    
- uphold regulatory sovereignty to ensure high standards of services and decent work, and reject clauses and new disciplines, such as standstill and ratchet clauses and other restrictions on domestic regulation, that limit policy space irreversibly;

    
- guarantee that services negotiations will reverse the deregulation of the financial sector, including by exempting prudential financial regulations from necessity tests;

    – temporary free movement of workers must under no circumstances undermine labour and social law and collective agreement provisions of the host country and it should always be based on preliminary analysis of the labour market. Lack of enforcement of such guarantees shall be subject to dispute settlement;

    – create and implement international standards for labour recruitment services providers that are consistent with ILO Conventions No. 29 and No. 105 and the ILO Protocol of 2014 to the Forced Labour Convention and other international consensus recommendations for eliminating trafficking in persons;

    – include enforceable labour and environmental standards as well as a well-resourced capacity-building mechanism to facilitate the upward convergence of these standards;

    – ensure privacy and data security; and

    
- ensure that the negotiations are subject to genuine, transparent and democratic processes in each country with the involvement of the social partners and civil society organisations, including in the determination of level and breadth of coverage.

    If such conditions are not met, the TiSA should be rejected.

    Your congress critter is aware of this, no?

    Reply
    1. Ox

      Basically, TiSA is expected in some circles to enable the offshoring of around 40% of our jobs. We’re expected to lose another 40% in the next decade to automation, too.

      This is not a drill, they see the country’s expectations and desire for “work life balance” as a direct threat to their agenda. So this is all shock treatment. Which has to be kept secret. Until it happens.

      Americans make too much and want too much. All of those things we want, all the unfinished business of equality and opportunity for all has to end because when youre a success, you dont need any changes.. just like God doesnt need to be reformed. Nor does Kim Jong Un. You suggest reform, you’re dead.

      Similarly, how could anybody suggest reforming a perfect health care system or perfect higher education system.

      Perfect in keeping those resources artificially scarce when they should be available to all, magnifies the unfair advantage some have to insurmountable size and makes the untalented and lazy appear to be better than they are.

      God doesn’t make mistakes, neither does capitalism.

      There is only one future to this cult of the market and its money being everything. Even as the main logical reason for money, motivating people to work is becoming less and less necessary, the cult of money must be increased in importance.

      Compassion is a slippery slope when jobs are going away. Its seen as standing in the way of their plans.

      And they own the nation, after all, GATS made everything except “services supplied in the exercise of governmental authority;” theirs forever.

      ‘a service supplied in the exercise of governmental authority’ means any service which is supplied
      neither on a commercial basis, nor in competition with one or more service suppliers.”

      Reply
  7. Ulysses

    “I think one first step would be to create an agenda, lay the items of that agenda against TiSA schedule commitments, and say “They shall not pass!””

    This is the sort of work that we try to do here at NC, or that someone like Lori Wallach does with Global Trade Watch. It is very useful work– to help organize our thinking on how to oppose the further consolidation of globalist corporate power.

    The sad reality, however, is that such analysis, agenda construction, etc., will never reach the vast majority of our planet’s inhabitants. We also need to exploit people’s natural horror, at the cruel consequences of rule by the international kleptocracy.

    The reaction to the Grenfell Tower fire was a good example of how millions of people, dimly aware that their world was increasingly ruled by outrageous greed-heads, suddenly found a sharp focus for their reformist demands.

    Catastrophes like Grenfell happen every day. Who knows which new ones will ignite the fires of revolutionary action?

    The Triangle Shirtwaist Fire turned out to be far more consequential than anyone at the time could have expected. I suspect that tumultuous, unforeseeable events will far outpace our ability to construct persuasive agendas that will rally people to overthrow the international kleptocracy.

    Reply
  8. Ignacio

    After this third post in the series what I see is that TiSA was designed to collude with so many existing institutions and interests as well as with “common sense” that it would soon prove non-viable, although not before making a lot of damage. As Lambert says it represents a dream, or a nigthmare. I would like an opinion on this from Jerri-Lynn. Can a legal framework be based on a dream?

    Reply
    1. Ignacio

      Another way to describe TiSA would be a ring to rule them all, and tie them to the darkness of neoliberalism

      Reply
      1. Ox

        Exactly, except the GATS and its WTO are the One Ring, and TiSA, (India’s proposed) TFS, the GPA, TTIP, etc, which are meant to be complementary to it, are akin to the Nine rings of power and the others that are thralls to the one. Or not..

        But I think you do have it right, that is an analogy I often return to, in that its a very dark evil which we fail to recognize because its “progressive liberalisation” trap, is so gradual so incremental, such a manipulative and one way trap its springing, only the most observant recognize it for what it is.

        Reply

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