Foul Play - UNI Global Union

144 Pages·2017·8.64 MB·English

TiSA
FOUL PLAY

TiSA
FOUL PLAY
Copyright © 2017 UNI Global Union
All Rights Reserved
This project has kindly been supported by FES
Report authored by:
PROFESSOR JANE KELSEY
Faculty of Law
The University of Auckland, New Zealand
CONTENTS
TiSA Glossary 6 Universal service obligations (USO)  54
State-owned Enterprises (SOEs) 55
Summary of the report Social rights and privacy 56
8 National security  57
INTRODUCTION 12 TiSA AND TELECOMMUNICATIONS 58
Why TiSA is important 13 Industry demands 60
Future-proofing global rules for capital  14 TiSA on telecommunications services 61
Empowering corporations, disempowering workers 15 Unlimited foreign investment and cross-border supply of
The structure of this report 15 telecoms 61
The Annex on Telecommunications Services 62
WHO IS REWRITING THE RULES FOR GLOBAL COMMERCE 16 What this means for UNI’s affiliates and workers 62
The ‘Really Good Friends of Services’ 17
Exclusion of the Global South 19 TiSA AND FINANCIAL SERVICES 63
The corporate lobby 20 The financial industry lobby 65
Team TiSA 20 Architects of the GATS 65
Cross-country coalitions 21 Team TiSA’s finance arm 66
The state of play 22 The finance industry’s digital agenda  66
Entry into force  23 The European finance lobby 67
TiSA Rules on Financial Services 68
WHAT TiSA MEANS FOR UNI WORKERS 25 Financial stability 68
A snapshot 26 Capital controls 69
TiSA’s systemic effects on labour  27 Prudential measures 69
The politics of labour in TiSA 27 Financial data 69
TiSA’s impacts on services workers  28 What TiSA means for UNI’s finance sector workers 70
TiSA’s impact on services jobs 29
Foreign services workers (Mode 4) 30 TiSA AND POSTAL SERVICES 71
Workers in the global South 31 The corporate demands 72
Workers’ rights 31 Activist states: the EU and US  74
The EU approach  74
E-COMMERCE: TRANSFORMING GLOBAL CAPITALISM 33 The US approach  75
Empowering GAFA  34 What’s new in TiSA for postal services  75
The geo-politics of e-commerce 35 Public postal services 76
Who controls global e-commerce 36 EU requests of Latin America on postal services 76
The new ‘Wild West’  38 The Universal Postal Union 77
The Uber model  38 Impacts on UNI’s postal unions and workers 77
The Amazon model 39
AliBaba 40 CHALLENGING THE TiSA PROJECT 78
E-finance  41
The tech industry demands for TiSA 42 Appendices
81
If the French digital industry is afraid … 43
Even an industry think-tank thinks twice 44
The Contents of TiSA
A precarious future for UNI workers 45 82
Preamble 82
AN OVERVIEW OF TISA 47 Part 1: General Provisions  82
How TiSA liberates global capitalism 48 Part II: Scheduling Commitments 82
Handcuffs on future regulation 49 Part III: New and Enhanced Disciplines  82
Defining trade in services 50 Part IV: Institutional Provisions  82
Core rules 50
W120
Schedules of countries’ commitments 51 83
Domestic regulation disciplines 52
E-commerce, technology and data 53 LABOUR MOBILITY UNDER TISA 90
Prohibiting localisation requirements 53 GATS ‘Mode 4’ 90
Empowering corporations to lobby  54 The TiSA annex on labour mobility 90
Public services  54 Redefining ‘Mode 4’ 91
No public services carve out 54
Subsidies  54
THE E-COMMERCE ANNEX 94 Licensing  123
What is e-commerce? 94 Resolution of disputes  123
Regulating telecoms, not the Internet 95 Transparency  123
The e-commerce annex 95
TiSA ANNEX ON FINANCIAL SERVICES
Scope of coverage 96 125
Protecting digital providers from national regulation 96 Scope of coverage 125
Unrestricted movement of data (Article 2) 97 Presumptions of commitments 126
Location of computer facilities (Article 8) 98 Market access 126
Keeping source codes secret (Article 6) 98 National treatment and local presence 127
No local content requirements (Article 10) 100 Foreign finance firms operating locally 127
No ISP liability for uploaded content (Article 11) 100 Insurance 128
Internet self-governance 101 Pressuring public insurance schemes 129
Sham consumer and citizen protections 101 Postal insurance 129
Consumer protection (Article 3) 101 Insurance cooperatives 130
Privacy protection (Article 4) 101 Monopolies 130
The flawed general exception 102 Electronic payment services  130
Spam (Article 5) 103 Finance industry capture of regulation 130
Conditional network access, use of Internet and open Lack of consumer protections 131
networks (Article 7) 103 The prudential defence  131
National Security (Article 13) 104 Location of Financial Data  132
Facilitating cross-border electronic transactions 104 Cross-border transfer of financial data 132
Electronic authentication and e-signatures (Article 9) 104 Regulators’ access to financial data  133
No customs duties (Article 10) 104
International cooperation (Article 12) 105 TiSA TEXT ON POST AND DELIVERY SERVICES 134
The TiSA core text 134
OVERVIEW OF THE TiSA CORE TEXT
107 The core rules 134
Part 1: General Provisions  107 Redefining postal services 134
Part II: Scheduling commitments  108 Restricting the postal monopoly 135
Part III: New and enhanced disciplines  109 Further restrictions on postal regulation 136
Part IV: Institutional Provisions  109 Universal Postal Service Obligation (UPSO) 136
State-owned post offices 137
THE TiSA RULES ON TELECOMMUNICATIONS SERVICES
111
TiSA ANNEX ON DOMESTIC REGULATION
Scope of coverage 111 138
Classifying telecoms 111 The scope of regulatory ‘disciplines’  138
Telecoms in the GATS 1994 113 The handcuffs on government regulation 139
The GATS 2000 negotiations 113 Potential challenges to administrators  139
Telecommunication Services  113 Implications of the annex 139
Deregulation and access to services and networks 114
Rights to access public telecom services and networks 114 TiSA ANNEX ON STATE-OWNED ENTERPRISES 141
Leased circuits 114 Defining an SOE 141
Interconnection 115 What the rules require 141
Unconditional access and use of public telecom services  115
Allocation of scarce resources.  115
Tables
Use of services [and possibly networks] for moving data  116
Major telecom suppliers and competition 116 Table: 2.1 TiSA negotiating parties 18
Interconnection obligations of major telcos 116 Table 2.2: Team TiSA by Sector 20
Resale 117 Table 4.1 Top ten companies by retail e-commerce
Access to essential facilities 117 revenue, 2014 37
Unbundling  118
Technology of choice 118 Boxes
Interconnection to undersea cables  118 Box 6.1 Objectives for TiSA on telecoms 59
Anti-competitive practices  119 Box 6.2 US Telecommunications Industry
Telecommunications as a public service 119 Association demands 60
Universal service obligation (USO) 119 Box 6A.1 W/120 telecom classifications 112
State-owned public telecoms companies 120 Box 7.1 Objectives for financial services in TiSA 64
Rural communities 120 Box 8.1 TiSA objectives for postal services 72
Consumer rights and protections 120
Confidentiality 121 Figures
International Mobile Roaming 121
Figure 5.1: Corporate Demands for TiSA: To Limit
Institutional and Regulatory Framework  121
Functions of Government and to Ensure Complete
Domestic regulation 121
International Standards and Organisations  121 Freedom of Movement across Borders 48
Figure 5.2: How TiSA Rules and Annexes Serve the
Telecommunications regulatory body  122
Global Digital Economy 49
TiSA Glossary
4th industrial revolution investment, intellectual property, government procurement,
competition, etc.
Transformation of global capitalism through new technologies
that combine digital, physical and biological elements.
GAFA
Algorithm The dominant tech companies of Google, Apple, Facebook
and Amazon
A self-contained procedure or formula for solving a problem,
based on conducting a sequence of specified steps or actions,
GATS
often combined in a computer programme.
“The General Agreement on Trade in Services” is the agreement
Big data on services to which all WTO members are automatically a party.
Very large or complex data sets that are mined to reveal trends
Global South
and patterns of behaviour, usually to use for commercial
advantage. A term used to describe countries of Latin America, Africa,
much of Asia, and the Middle East collectively, in contrast to
Certification affluent countries, described by contrast as the Global North.
The US domestic process of approving steps taken by another
Limitations
country to comply with an agreement as a precondition for
US notification that its domestic requirements have been The explicit exclusion of a government measure or an aspect of
concluded. a service from a sectoral commitment in a country’s schedule.
Commercial presence Local content measure
Having an office, branch, or subsidiary in a foreign country, A requirement that the service or service supplier buys a
known in GATS as “Mode 3” of service delivery. certain amount of local content for incorporation in the service.
CPCs Measures
United Nations Central Product Classifications used to All forms of government regulation: statute, regulation, by-law,
identify the services sectors and subsectors that are subject administrative decisions, policy, practice or any other action a
to commitments in a county’s schedule. There are several government takes in relation to a service.
versions of these CPCs, dating from 1991.
MFN
Cross-border supply “Most-favoured-nation treatment” the principle of not giving
The consumer of a service and the supplier of a service are in services and suppliers from parties to the agreement less
different countries. favourable treatment than is given to their counterparts from
any other country.
Developing country
Mode 1
A designation used at the WTO, but without any formal
definitions of either “developed” and “developing” countries. The technical description for delivery of a service by a supplier
Members adopt that designation for themselves, but other in one party to a consumer of the service in another party.
members can challenge their use of special and differential
treatment. Mode 2
The technical description for delivery of a service by a supplier
Electronic commerce
in one party to a consumer of the service who uses the service
The production, advertising, sale and distribution of services via in that country.
telecommunications networks (eg. Amazon.com or Expedia.com).
Mode 3
eWTP
The technical description of a commercial entity of one party
The World e-Trade Platform proposed by Jack Ma, the owner establishing a commercial presence in the territory of another
China’s AliBaba. party.
FTA Mode 4
“Free trade agreement” whose objective is to liberalise the The technical description of the temporary presence of natural
rules that govern transactions between the parties, usually persons of one party in another party’s territory to undertake
covering a wide range of areas, including goods, services, work in a service sector.
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Party’s schedule Sector
A schedule that sets out the commitments that have been The description of the general service category that is subject
adopted by a party through negotiation. to commitments or rules.
National treatment Smart products
Giving services or service providers of the other party no less Physical things that have digital systems embedded in them
favourable treatment that their national counterparts receive. that transmit information for purposes relating to the thing.
Natural persons Source code
Real people, as distinct from juridical persons such as Instructions to a computer written in a form that is readable by
companies and organizations. humans before being converted into object or machine code.
Negative list Standstill
A list that specifies which services, modes of delivery, and/ The rule applying in a particular subsector at the time the
or regulations and other measures are not subject to certain
agreement comes into force (unless another time is stated)
rules of the agreement.
cannot be made any more restrictive. This applies in TiSA to
national treatment, where domestic services and suppliers
Nullify and impair
receive better treatment than their counterparts from other
Damage to the benefits that a party expects to receive from
TiSA parties.
its membership of TiSA that is caused by another party
making changes to its services regime or failing to carry out State-owned Enterprise
its obligations.
An enterprise in which central government owns more
than 50% of shares or can appoint a majority of directors,
Offer
which is principally engaged in activities undertaken with an
A party’s proposal to commit to a certain level of liberalization,
orientation towards profit-making and which can decide its
usually by improving access to its markets or national
own production and prices.
treatment, in response to a request from another party during
negotiations; involves initial and subsequent offers.
Subsector
Policy space limitation A more specific service category within a general category of
a service.
This limitation in a party’s schedule protects its right to
maintain and introduce new measures that are inconsistent
Supply of a service
with its obligations to specified rules. In TiSA that applies to
national treatment. These limitations are usually specified by All stages of production, distribution, marketing, sale and
name or by the service sub-sector or activity. delivery of a commercial service.
Positive list TISA
A list that sets out which services, modes of delivery, and/or Trade in Services Agreement being negotiated among 23 parties.
regulations and other measures are subject to certain rules
of the agreement. TPP or TPPA
Trans-Pacific Partnership Agreement negotiated between the
Ratchet
Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New
Any new liberalisation by a party is automatically locked in to Zealand, Peru, Singapore, Vietnam, USA.
that party’s schedule. In TiSA that applies to national treatment
(removing discriminatory restrictions on foreign suppliers or TTIP
preference to national suppliers).
Transatlantic Trade and Investment Treaty negotiation between
the US and EU
Request
A list of the services sectors, modes of delivery and measures
Universal service obligation
that one party asks another party to commit to liberalise in its
Obligation that government placed on certain regulated
schedule during the course of negotiations.
services to supply a baseline level of the service
Really Good Friends of Services
Universal postal service obligation (UPSO)
A group of WTO members formed to promote the further
liberalization of services. Obligation on government to provide a baseline level of a
postal service to every resident in the country.
Schedule
WTO
A Party’s list of binding commitments, primarily on market
access to services markets and national treatment, but with “World Trade Organisation”; whose (currently 164) members
scope to make commitments on additional matters, such as are committed to obey the organisation’s trade rules. These
adopting an annex. rules cover services through the GATS.
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TiSA
UNI’s FUTURE
ON THE LINE
Summary of
the report
The Trade in Services Agreement (TISA) could The centrepiece of TiSA is e-commerce. The
literally change the lives of UNI’s affiliates tech industry describes digital platforms as the
and their members as unions, workers, new trade highway of the 21st century, likening
consumers, citizens and human beings. their impact to the printing press in the 16th
century and electricity in the 19th century.
Trade in services agreements are designed to serve
capital. Labour is treated as a commodity, a mode Their model for success celebrates constant
of delivery, or a ‘barrier to trade’ - even though disruption, reorganisation, relocation and
workers provide the services that are being ‘traded’. automation. Corporate wealth and power are
concentrated at the top of a pyramid, with no
Since 2013 a group of governments have been
social responsibility. Protections for workers and
secretly negotiating a deal that would lock the
unionisation are seen as barriers to be stripped away.
world into the failed neoliberal model of the past
four decades. They call themselves The Really High value activities of mega-corporations
Good Friends of Services. cluster in the North, along with élite employment.
Workers are made dispensable, especially in
These governments are working with, and largely for,
the global South, through layers of competitive
a corporate lobby known as Team TiSA. Its six US co-
contracting, offshoring, automation, and bogus self-
chairs come from the world’s most powerful financial,
employment. Precarious work becomes the norm.
technology, logistics and retail corporations: Citigroup,
IBM, UPS, Walmart, MetLife and Liberty Mutual. Three layers of TiSA bind governments for the
indefinite future: 1) a core text sets the basic rules; 2)
Team TiSA want a ‘21st century agreement’
proposed annexes impose restrictions in policy areas
that removes all barriers to their global
(eg. labour mobility, finance, domestic regulation,
expansion and profitability and puts handcuffs
transparency (for corporations)) and service sectors
on national governments’ right to regulate,
(eg. energy, telecommunications, maritime transport);
even when new services and technologies
and 3) schedules commit each country to these rules.
pose unforeseen risks in the future.
Team TiSA is demanding unlimited rights
TiSA follows the failed model of other anti-
to supply e-commerce, financial, telecom,
democratic mega-agreements: the Trans-Pacific
and delivery services from outside the
Partnership Agreement (TPP or TPPA), the
country. So it is not surprising they are the
TransAtlantic Trade and Investment Partnership
targets of TiSA’s most potent rules.
(TTIP), the European-Canada Comprehensive
Economic and Trade Agreement (CETA). Very few restrictions currently govern the
Internet; Team TiSA wants to keep it that way.
TiSA is especially important for two reasons: 1)
TiSA’s rules are designed to serve their needs 20
its main purpose is to clear the path for the 4th
or 30 years from now by removing governments’
Industrial revolution, or the new wild west of
ability to regulate their technologies, services
capitalism where a globalised economy is driven
and practices whatever new technologies may
by digital technology; and 2) TiSA is the ‘last man
evolve, and irrespective of their economic, social,
standing’ since the collapse of the TPP and TTIP.
environmental or development impacts.
The TiSA talks have been held in Geneva under a
Strategies and policies to support the domestic
cloak of secrecy. Only a handful of governments
economy and jobs, and require firms to transfer
have released even some of their own documents.
technology or hold data and have a presence
Analysis and critique has to rely on leaked texts.
inside the country would be prohibited.
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TiSA’s proposed rules on telecommunications have The globally integrated logistics chains they organise
5 main goals: 1) to undermine telecoms as a public through digital platforms require seamless cross-
service; 2) deregulate and guarantee all private and border flows of transport, goods, data, money
foreign telecom suppliers, from within and outside and people, free from government regulation.
the country, access to services and networks; 3) Public postal systems have to be minimised, while
force major telcos to facilitate competition, but still providing access to a universal network.
defining them so that applies mainly to the global Amazon will piggy-back on these gains, forcing
South; 4) require national regulators to police the Big Four to compete harder to survive.
public telco’s compliance with the TiSA rules; and 5)
Postal workers will face intensified competition
provide minimal consumer rights and protections.
from express delivery firms and the bogus ‘self-
For the telecoms workforce that means employed’ workforce. That means increased
more cross-border services that kill local jobs; churning, short-term contracts and casualisation,
fragmenting and corporatising state-owned and delivery through automation and artificial
telcos to promote privatisation and sub- intelligence using drones, driverless vehicles and
contracting; competitive pressures on labour costs, their successors. Fewer public sector jobs, lower
workloads, safety standards, and social rights like union numbers and less bargaining power will
pensions and healthcare; deprofessionalisation threaten pay, conditions and social protections.
of technical workers; feminisation of telecom
Overall, TiSA would mean intensified hyper-
servicing operations; and a fractured and
competition, contractualisation, digitalisation
unstable industry that is hard to organise.
and automation for UNI workers, controlled by an
Team TiSA wants unrestricted rights to supply oligopoly of super-powerful corporations. Workers,
banking, insurance, investment and other especially in the global South, become more
financial services across the border, including vulnerable and expendable as work is automated
for e-commerce, and ensure regulations don’t and re-shored to the corporations’ home base.
make business more difficult or less profitable. Further feminisation of the vulnerable, lower paid
The industry becomes even more high-risk, services workforce widens the gender gap. Traditional
high-profit, globally mobile and unstable. national strategies of unionisation, collective
bargaining and industrial action no longer work.
Governments are asked to lock in their
current levels of financial deregulation and This trend is not new, but TiSA will worsen
liberalisation, promise never to regulate new and the international race to the bottom
potentially toxic financial products and services, for labour in at least four ways:
and sign away their rights to take effective
• Internationally, corporations play countries
measures to prevent a future financial crisis.
off against each other to secure the least
The globalised finance industry minimises the costs burdensome regulations and taxes;
of its workforce by cutting wages, de-unionising,
• Within nations, a race to the bottom among
contracting out, offshoring and automation. Workers
layers of contracts, contract workers and
in state-owned banks and insurers, especially
the nominally ‘self-employed’ erodes hard-
in the global South, face intense pressure from
won protections, poses new barriers to the
corporatisation and competition. Women are clustered
organisation of labour and undermines the
in low paid, stressful and insecure back office work.
bargaining position of those who are unionised;
The TiSA agenda for postal, courier and express
delivery services is set by DHL, Fedex, TNT and UPS.
10