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Corporate lawyer appointed special adviser to EU trade chief

European Trade Commissioner, Cecilia Malmström has made a bad choice in appointing Jan Eric Frydman as Special Adviser on EU-US Trade Policy. Frydman's tricky revolving door history and ongoing work for Swedish law firm Ekenberg & Andersson, whose practice includes international trade & regulatory affairs and dispute resolution, creates potential conflicts of interest*. He's part of the problem, not the solution.

According to the European Commission website, third on the list of EU Trade Commissioner Cecilia Malmström's responsibilities is “reaching a balanced and reasonable Transatlantic Trade and Investment Partnership (TTIP) with the US.” Since Malmström took office, she has repeatedly promised a “fresh start” to the TTIP talks, including more civil society involvement and listening to public concerns as her “top priority”. In reality, however, the Commission seems to continue its decidedly one-sided and imbalanced approach to the transatlantic talks (its handling of the public consultation on investment in TTIP being a case in point).

UPDATE: We've written to the Commission about this case, see here: letter_re_special_adviser_ttip.pdf

The latest confirmation of the Commission's jaundiced perspective on what it means to listen to diverse viewpoints comes in the shape of Jan Eric Frydman, Malström's new Special Adviser on EU-US trade policy. While achieving balance in politics generally requires taking soundings and advice from a variety of sources and expertise in order to produce the desired 'reasonable' policy, Frydman arrives with a CV that reads like the dream biography of an international corporate player, and is set to have a key role in steering the Commissioner's approach to TTIP.

A partner at Ekenberg & Andersson law firm in Stockholm (a position he will retain despite his new role at the Commission), Frydman boasts extensive experience at the top of the US business universe. He cut his teeth in marketing management at Procter & Gamble - a US-based multinational that has recently been busy pushing the Commission forward with proposals on trade secrets that endanger the work of journalists, whistle-blowers, and researchers as well as severely limiting corporate accountability and transparency. Later, Frydman worked as Chief Information Officer at Mannheimer Swartling in Stockholm and New York. Mannheimer Swartling controversially represented Swedish energy giant Vattenfall in an investor-state challenge against Germany, seeking €4.7bn in damages related to two of the company's nuclear power plants following Berlin's decision to phase out nuclear in the wake of the Fukushima disaster. This is an oft-cited example of Investor State Dispute Settlement (ISDS) whereby a company can sue a state at an international tribunal of private lawyers over a change in law that impacts its profits. ISDS is one of the most controversial aspect of the TTIP talks. Will Frydman, as a former employee of a company that sees fit to sue a government over a democratically taken decision, be able to dispatch his advice to the Commissioner on this issue objectively and in the public interest?

The “intellectual property practice” of Frydman’s law firm also raises questions about potential conflicts of interests. Public interest groups such as the Transatlantic Consumer Dialogue have warned that TTIP’s intellectual property rules could “weaken the rights to health, culture, and free expression of U.S. and EU citizens by unfairly limiting access to knowledge and access to medicine”. Will someone working for a law firm assisting companies in the fields of patents, trade secrets and other intellectual property rights cater for these concerns and give “balanced” advise on TTIP’s intellectual property sections?

Alongside this impressive business experience, Frydman also comes with plenty of know-how gained at the Commission itself as legal advisor and then as the top administrator for transatlantic relations. “Jan created the structure for regulatory cooperation between the EU and the US and he coordinated with the US department of Commerce the government side of the Transatlantic Business Dialogue (TABD)” says his CV on the Commission site. The TABD (now renamed TABC – Transatlantic Business Council) is a lobby organisation banding together 70 multinational companies from both sides of the ocean, which have for decades lobbied for the establishment of a barrier-free transatlantic market. Indeed, Frydman's particular expertise - regulatory cooperation - happens to be another alarming feature of the TTIP talks today that is causing significant concerns among civil society and citizens groups. The regulatory cooperation proposals carry the threat of attacks and lowering of standards in the name of harmonised rules to favour transatlantic business dealings. Under current proposals, the EU and the US will be able to negotiate on contentious topics such as chemicals or banking regulation over the longer term. Regulatory cooperation will occur behind closed doors, far away from public and parliamentary scrutiny but very close to the agenda of big businesses. Regulatory cooperation has been described by consumer groups as the “surreal institutionalisation of lobbying”. This regulatory cooperation system currently on the table is built upon the bedrock of decades of transatlantic business dialogue and groundwork laid down by insiders like Frydman.

Regulatory cooperation will come in handy for the “international trade and regulatory affairs” practice of Frydman’s law firm. On its website, Ekenberg & Andersson praises its “unique expertise” in “regulations and decisions affecting Swedish business [which] are adopted and taken either in Brussels or in Washington”. And it adds: “This can be expected to increase further as a result of the negotiations between the EU and the U.S. on a free trade agreement (T-TIP).” Indeed, TTIP’s regulatory cooperation chapter will make it even easier for law firms like Ekenberg & Andersson to lobby to weaken, postpone and prevent legislation that would hamper the profits of their corporate clients. As Malmström’s special advisor, Frydman will have a unique opportunity to shape the chapter – in the interest of his law firm and the corporate world at large. Remarkably, Frydman has signed a 'Declaration on the Honour' document stating that he has no conflicts of interest. The European commission appears not to have done any own assessment of whether his twin roles could lead to conflicts of interest.

While Cecilia Malmström talks of “fresh starts”, “new beginnings”, “citizens' concerns”, her actions tell another story. How can the 'balanced' and 'reasonable outcome' to the talks that the Commissioner is tasked with reaching be achieved if she's surrounding herself with corporate insiders? Malmström could have sent a real signal of a fresh start to citizens, to public interest campaigners, to the more than 1.5 million people who expressed their opposition to the direction of the TTIP talks by choosing Special Advisers that are independent experts on EU trade policy who are free from conflicts of interest. But she didn't. The Commissioner has chosen to stick to the well-trodden, predictable, one-sided Commission approach to these talks and the legitimate concerns they have raised – ignore and plough on regardless.

* Jan E. Frydman's reply to CEO's questions added in June 2015. Read it here.

* Edited on the 1st June 2015 to remove a mention to Jan E. Frydman's 'pro-ISDS background'. This passage was removed in order to avoid misunderstandings.

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