Beyond ISDS: An international court for economic crimes?


Jan Blommaert

The negotiations between the EU and Canada about the CETA treaty have been stalled, initially by just two regional parliaments in Belgium, but gradually by a broader front of EU members, all of whom take exception to the Investment Court System (ICT), a specific variety of what has become knowm as ISDS – “Investor State Dispute Settlement”. The objections are not technical but profound – they revolve around a principle.

The principle was laid down a couple of centuries ago, as part of what we now call Enlightenment: it is the principle of equality under the law. Put simply, it implies that a Duke and a beggar must be subject to the same laws, be tried in the same way for the same crime, receive the same sanctions, enjoy the same rights and have access to the same legal instruments and procedures. It’s the very foundation of what has now, almost universally, been accepted as the democratic system of law and order.

Remarkably, ISDS is an exception to that. In the current ISDS systems, of the two parties involved – investors and states – only one of them has the right to initiate procedures. And that is the fatal flaw in the system.

Advocates of ISDS do have a point though: scale. They invoke economic globalization as the compelling reason why supranational jurisdictions are necessary. The logic is: transnational business and finance operate on the basis of a global strategy, and the scale level of nation-state legislation should not impede or disrupt the structure of such global manoeuvers. Hence ISDS, as an instrument to “correct” nation-state impediments and stay on track of the chosen business strategy.

It is not a bad argument; but it, once again, begs the question as to why an ISDS should not be built on the equality principle, recognizing that the nation-state scale level is also an obstacle for the other party in the game. Concretely: corporations have access to an international legal procedure when their global interests are endangered, but Volkswagen can only be prosecuted nationally for its software fraud, even if that fraud was a global phenomenon.

And a government cannot, for instance, internationally prosecute a corporation for the social and collateral costs of making thousands of its workers redundant in spite of very large profits made in that country (think of the worldwide reorganization announced by ING bank some weeks ago). Such actions, motivated by – exactly – the global corporate strategy, force governements to spend enormous amounts of cash in unemployment benefits, retraining and reskilling of laid-off workers, sometimes the reconversion and sanitation of abandoned industrial sites with severe and lasting ecological damage, and so forth – costs often weighing heavily on precarious national budgets for many years. And they are direct effects of economic globalization.

One can easily think of numerous other issues in which the weakness of the nation-state scale level as an actor in global economic processes is exploited by business and finance. The Panama Papers and Offshoreleaks brought shocking evidence of the complex systems of tax evasion deployed by business and finance corporations, all based, exactly, on movements of money, legal statuses and accounting practices from one country’s jurisdiction to another, keeping profits out of reach of the tax offices of the countries where they were earned. At present, very little can be done against it – the legal system of one country reaches its limits where that of another country starts. And within this fragmented world of jurisdictions, those forms of tax evasion are “not illegal”, as it is often repeated. But the scale of economic damage done in several parts of the world matches the scale of profit made from such practices of playing off these parts of the world against each other.

So why not take ISDS one step further, and recognize that the globalization of business and finance does indeed require an international jurisdiction, but a real one, one in which all parties have access to the same legal instruments. Why not think of an international court for economic crimes, modeled, perhaps, on the present International Court of Justice in The Hague – an idea which has been around for a while? It would add a quite commonsensical dimension lacking from the present ISDS system: that “Investor State Disputes” may have either one of both parties in either of the roles in the dispute – perpetrator as well as victim. And that true justice can only be done when this elementary principle is restored.





How and why Wallonia opposes CETA. Elements from a David-Goliath debate


Jan Blommaert 

Upheaval in Europe: the Walloon and Brussels regional parliaments in Belgium have raised serious obstacles to the conclusion of a massive Free Trade Agreement with Canada called CETA. Given Belgium’s rather complex constitutional make-up, the refusal of CETA by these regional parliaments means that Belgium, as an EU member state, cannot approve the agreement; and given the EU’s rule of unanimity, this in turn means that the entire EU cannot legally conclude the CETA agreement with Canada. Obviously, this David versus Goliath battle has become international headline news over the past week.

David versus Goliath

The battle is waged in the Brussels negotiation rooms as well as in the masss media, and for obvious reasons, it has become quite heated in the Belgian media. Here are some arguments that were widely used over the past week, mainly by spokespersons for the (Flemish) business community and political world..

  • Wallonia, which is ruled by a Social-Democratic/Christian-Democratic coalition, opposes CETA just to spite the Federal government, from which both parties were excluded. In Flanders, politicians add that Wallonia also wants to spite the Flemish region, which would benefit most from CETA. Opposition to CETA, in short, is merely an internal conflict in the complex Belgian state.
  • The Walloons articulate petty interests, infinitely smaller (in fact, insignificant) when measured against the tremendous benefits that CETA will bring. The Walloons defend the interests of their small farming industry against the giant agro-industries of Canada. They do not understand how much CETA would bring to the economic development of their region.
  • Wallonia makes Belgium look bad; Belgium has always been the EU’s best pupil and hosts its institutions; being the only member state to block this enormous agreement causes dramatic reputational damage to the country.

All of these points are, no doubt, real. But they are peripheral in the range of arguments raised by the Walloon and Brussels parliaments. Walloon and Brussels, yes – narrowing the conflict to the Walloons bypasses the fact that two Belgian regions oppose CETA. The Brussels Region coalition, incidentally and ncomfortably, includes the Liberal parties, who are also in the Federal coalition – which instantly cripples the first of the arguments listed above.


The second argument is simply untrue. The opposition of the Walloon and Brussels parliaments is not against “a free trade agreement”; it is against a particular concrete element of such treaties. That element has in the meantime become infamous: the so-called “Investor-State Dispute Settlement” (ISDS) provision. This provision has been included in several large trade agreements (such as NAFTA) and, in its simplest formulation, grants private corporations the power to legally challenge national governments when legislation is judged (by the corporations) to damage real or expected profits – often cleverly called “indirect expropriation”. Damage claims by corporations against national governments can reach hundreds of millions of Euros per case.

ISDS has a bad track record, for several reasons. One, it has been used by corporations to fight legislation which is grounded in pretty sound public interest concerns. Thus, reports Guy Standing in a recent book, the tobacco multinational Philip Morris attacked Australia’s “plain packaging law”. with a multimillion dollar damages claim because, obviously, it may dissuade people from smoking. While this claim was unsuccessful, the same corporation has filed ISDS complaints against numerous other governments. Similar cases have been filed by pharmaceutical companies against governments leggaly capping the cost of medicines, and, cynically, also against the government of Spain, in full economic crisis, for withdrawing subsidies for sustainable energy investments. Ecuador has to pay $1.8 billion to Occidental Petroleum for the (lawful) termination of an oil concession contract – a staggering 2% of the national GDP, according to Standing.

Second, ISDS procedures are unilateral: corporations can prosecute states but states cannot prosecute corporations in the same way. It is explicitly seen as an “investor protection” measure. Rulings are also ad-hoc, in the sense that the judges are not held to jurisprudence and precedent and can decide by majority vote – without access to appeal. Unsurprisingly the majority of cases brought forward were concluded in favor of the corporations. Third, the procedure is terrifically expensive, and even if states win the case, they face millions of Euros in legal costs. Standing writes that the average trial cost is $8 million, with some trials costing as much as $30 million. Combined with the fear of astronomical damages, potentially affecting, as in the case of Ecuador, the macro-economic situation of the country, governments adopt a “prudent” attitude and prefer to avoid passing particular kinds of legislation – notably stricter social, public health and ecological rules – rather than to risk having to face an ISDS battle. Standing bitterly remarks that ISDS claims have become an industry in their own right, with large corporations and venture capital funds active in direct overseas investment increasingly viewing it as a new source of substantial income – which explains the rise in ISDS claims over the last handful of years.

Finally, however, there is a larger argument. ISDS-model procedures enable private multinational corporations to challenge and overrule democratically constituted regulations – a privilege not awarded to anyone else, and an acknowledgment of a new relationship between economy and democracy. Traditionally, economic actors need to comply, like anyone else, with the laws of the country where they deploy their activities. Under an ISDS system, this is no longer true: multimational business becomes a jurisdiction of its own, no longer entirely subject to democratically constituted legal arrangements to which their activities must be adjusted. Equality under the law is no longer the unshakable principle of the democratic rule of law, and the sovereignty of the polity – another cornerstone of modern democracy – has been substantially reduced. In a democratic system, recall Montesquieu, the laws represent the public interest, and private interests are subordinate to it, whether they like it or not. This is surely not a detail but a principle which is, perhaps, worth fighting for?

Tongue-in-cheek one can add that accepting ISDS seriously reduces the democratic choice of citizens. Whether one votes for left- or right-wing parties, for neoliberal or socialist and ecological political agendas: it doesn’t really matter. Any government attempting to introduce policies perceived to run counter to the business strategies and profit expectations of multinational corporations will be welcomed by lawyers filing colossal ISDS claims anyway.

And as for “free trade”: small and medium-size local enterprises do not benefit from the ISDS system, and large global businesses and finance groups acquire a fundamentally unfair advantage over their smaller competitors. It’s a story of the big becoming bigger and the small becoming smaller – not exactly what Adam Smith had in mind.

This is why the Walloon and Brussels parliaments oppose CETA. For, while chapter 8 of the treaty acknowledges some of ISDS’s shortcomings and prefers the term “Investment Court System” (ICS), the ISDS template remains almost entirely intact – and the arguments against it as well.

Over the past day or so, the real issue – ICS – has finally emerged as a topic of debate in the Belgian mass media. Its defenders are playing it down: ICS is actually a mere detail, an “operationalization”, a hardly relevant practical implementation of restricted scope, an innocuous gesture to reasssure investors, and so forth. Which begs the question: if ICS is that unimportant, why not remove it from the treaty then, knowing that this is the problem preventing its conclusion?


Let us now turn to the third argument: the Walloons make Belgium look bad. Negotiating ISDS has taken seven years of hard diplomatic work, defenders argue, and such work should not be dismissed by the silly whims of some small political community.

The ISDS agreement has indeed taken quite a bit of work to be drafted. But this work was done, mostly, in deep secrecy and by negotiators who did not feel constrained by the silly whims of some small political community. It was, like most of the EU’s large legislative initiatives, the work of lobbyists. And in fair EU tradition, the treaty was offered for approval only when the texts were “final” – meaning that only small proviso- and exception statements could be added by national bodies, but that substantial re-negotiation is out of the question. Which is why the EU took the questionable step to issue a real ultimatum to the Walloon and Brussels governments: a firm yes or (strongly dispreferred) no had to be given before the end of the EU Council meeting in Brussels on October 21. Tremendous pressure was put by the entire EU-top on the Walloon Minister-President, quite reminiscent of the way Greek PM Tsipras was treated during the Greek debt crisis in 2015.

To be sure, the Walloon and Brussels governments are not alone in their resistance to ICS and other ISDS-type mechanisms. They may be the only governments raising objections, but for several years now, a major EU-wide campaign has been going on against large trade agreemens such as CETA and, even more intensely, the Transatlantic Trade and Investment Partnership (TTIP) with the US, which also contains an elaborate ISDS procedure. Civil society organizations advocating environmental, sustainable economy and social economy policies have constantly provided detailed and critical information and analyses of the negotiation documents that were available. Millions of EU citizens have signed petitions and marched in protest against the structure of such treates as well as the lack of transparency by means of which they were drafted and concluded. And in several EU- member state parliaments as well as the European Parliament serious concerns were raised. They have been overruled.

The Walloon and Brussels parliaments employ what cannot possibly be presented as an “abnormal” method in voicing their objections: they proceed along the only legally binding route available in EU-decision making: that of subsidiarity. The EU needs the consent of its member states and respects their internal structures of decision-making. As I explained at the outset, that means, in practice, that the Belgian government needs the approval of all of its subordinate governments – an effect of the never-ending reorganization of state power in Belgium over the past decades. And this is the only legally valid democratic procedure by means of which the EU can conclude the CETA agreement.

The Walloons did not offer their reservations in a “whim”, and neither in a knee-jerk reflex of resistance against the Belgian federal coalition. Their objections were voiced long ago, and repeated over and over again, but no satisfactory response was forthcoming. Since their consent is not a matter of choice but one of necessity, the defenders of CETA could have had some more respect for the – ultimately quite powerful – democratic institutions, and negotiated with them long prior to the self-imposed deadline that now triggers a huge crisis.

Tremendous amounts of scorn have, in the past, been poured onto populations who rejected EU proposals by means of referendum – one can check the Brexit file on for evidence, and return to the Greek “no” of 2015 for further support. Referendum voters were misinformed and ingnorant of the real issues, they could not understand the complexity of the topics they had to vote on, and were generously helped in this by malicious and dishonest populist politicians, it was said (begging the question as to why such flaws would be asbent from regular election campaigns?) The results of referendum votes, many of which have only advisory powers, have, consequently, been dismissed, overruled, or converted into minuscule adjustments of the original plans.

The Walloon and Brussels parliaments have not opted for this controversial and too-often discredited tool, and just use “ordinary” political-professional work: parliamentary debate, resolutions, vote – decision, period. And the EU Treaties solemnly repeat, over and over again, that the Union shall be ruled not by force but by consent and respect for the democratic sovereignty of member states wherever it applies. So, perhaps this incident is highly unpleasant and exceptional. But that in itself is an indicator of a malaise, because the procedures used by the Wallon and Brussels parliaments are … entirely and compellingly normal.

The EU and its problem

The EU has a huge problem, and even its leading functionaries are sharply aware of it. The malaise I hinted at is the highly questionable legitimacy of the “actually existing EU” – not the one so voluntaristically described in its treaties, but the one that does its daily business in Brussels. Especially in 2015, the EU’s annus horribilis, issues of democratic legitimacy erupted all over the Union. In the Greek debt crisis, the EU showed a decidedly oppresive face, utterly destructive of, and even openly hostile to, democratic tradition. In the refugee crisis it showed a repressive side which was for many a violation of its most loudly proclaimed principles; and in the terrorism crisis it opted for the reduction of privacy and civil liberties – again violations of what it is supposed to stand for. Add to this the sustained emphasis on neoliberal austerity policies, and it is easy to see why the EU has ceased to be the inspiring project of peace, solidarity and prosperity it used to be for a generation of its citizens.

In fact – and elections and referenda increasingly demonstrate this – the EU now counts many millions of its citizens who are not against the Union per se, but reject the Union in its present state. Such people, thus, are not “Eurosceptical” in the sense of, e.g., Wilders and Farage, but Eurocritical. In the public debate (and the views of the EU-leadership) this crucial distinction is missed and Eurocritics are lumped together with Eurosceptics. While, to name just one, Jeremy Corbyn and his UK Labour Party demonstrated how hopelessly inadequate – and manipulative – it is to present people with a black-or-white option: either you endorse the EU as it is, or you get no EU at all. A similar simplism has been used in the CETA crisis now: either you approve the agreement as it is, or you get no agreement at all.

In any decent politics, a third choice should be available: “yes, but”. Yes, we wish to maintain this system, but on the condition that changes, that it is profoundly, not cosmetically, improved. The Walloon and Brussels parliaments, just like several other parliaments and millions of citizens, have demanded precisely that. And if the EU does not understand how normal such a political demand is, it is unlikely to recover from its malaise. In fact, the malaise may prove to be a fatal disease.

There is, once more, a crisis in Brussels. But who is looking really bad here? Who risks profound reputational damage?


From structures to constructures


Jan Blommaert 

Sociolinguistics has over the past six decades provided a wealth of empirical evidence of great theoretical value, while it has quite consistently failed to formulate crucial insights as more generally valid social and cultural theories (cf. Williams 1992; Coupland 2016). In the “Durkheim and the internet” project, I extract and formulate theories from contemporary sociolinguistic research inflected, notably, by research on the connection between online and offline phenomena. The goal is to formulate social and cultural theories often fundamentally revising dominant ones, or, alternatively, lending support to views articulated earlier but left largely underexplored.

Several building blocks for the “Durkheim and the Internet” project are available in embryonic shape here. See, for instance, the essays on mobility, context and the chronotope, chronotopic identities, on conviviality and new social formations on social media, on the notion of culture, and several others. In what follows, I will offer some brief reflections on “structure” – as in “social structure” or “structuration theory”.

What I wish to avoid

Let me first sketch the field of arguments in which I shall situate my reflections. I wish to steer clear from two quite widespread frames of reference for discussing structure.

  • First, “structure”, certainly in a Lévi-Straussian variety of structuralism, has acquired strong suggestions of absoluteness, abstractness, predictability, anonymity, a-temporality and staticity. Structure, as the guiding value system of a society, is that which provides enduring stability to a social system and makes it resilient – as Parsons suggested – to the onslaught of cultural revolutions from within youth culture (Parsons 1964). And even if structure is the outcome of active structuration at a variety of scale levels in social life (Giddens 1984; Thompson 1984), most scholars would still use the term to describe dominant (if not determining) rules, values or principles driving the development of societies across spacetime. It is also quite often presented as a social force operating below the level of consciousness and agency of people, a set of tacit and not always “emicly” well-understood aspects of social life.
  • Two, “structure” is often seen as something antagonistic to “postmodernist” and “mobility/complexity” approaches to social life. While traditional (“modernist”) social science would be on the side of anonymous structure, “postmodernist” science would favor individual agency and thus become at once “poststructuralist” – in an unrealistic either/or frame in which methodological preferences appear to lead directly to ontological strictures. (Nik Coupland walks into the trap of such false antagonism: 2016: 440-442). It is rarely observed that scholars such as Bourdieu and Foucault do not just reject any concept of structure but reject a specific one: the Lévi-Straussian one referred to above. They reject a certain kind of structuralism (“poststructuralism” would be more accurately defined as “post-Lévi-Straussism”) but not “the structural” as a dimension of social systems. In general, this false antagonism often renders more nuanced understandings of structure impossible.

Since I am very much on the side of mobility/complexity in this debate, I am likely to be misread, given the lines of debate just sketched. Many fail to recognize that complexity is not the absence of order, but a different kind of order. I shall therefore use another term to make my point. Rather than using “structure”, I shall use “constructure” in what follows. New terms enable us to examine the validity of the older ones, and they also afford some measure of detachment from unwarranted intertextual readings. “Constructure” is not technically speaking a neologism – it is an archaic term that offers a nice collocation of “structure” and “construction” (and, if you wish, “conjuncture”). The term “construction”, as can be seen, can easily be changed into “agency”, and so we have a concept in which both dimensions, often seen as antagonistic, are heuristically and analytically joined.


The baseline assumption – one that, I hope, is unproblematic – is that any social event is structured: there is always “order” in any observed social event. But from a complexity perspective on sociolinguistic phenomena and processes, this order is always:

  • dynamic and unstable: order is always a temporally contingent quality because systems are perpetually unfolding and changing; (E.g. describing language at one point in time will necessarily result in a description which is different from what was current a generation ago, as well as from what will be current in the next generation).
  • unfinished: given the perpetual change, any momentary observation of “order” will contain open-ended, quickly evolving features anticipating new forms of “order”; it will also contain features that are contested and conflictual, and features in the process of being eliminated or established; (E.g. archaisms and neologisms, short-lived as well as more lasting ones, are always part of any synchronic observation of language).
  • non-unified: any “order” consists of a mixture of different forces, developing at different speeds and with different scope and range; (E.g. the different registers and genres in anyone’s repertoire have different speeds of development, with “standard” registers usually slower in development than e.g. youth registers – hence our sense of “trendiness”).

In these different forces, we are used to reserve the term “structure” for the slower, more persistent forces, the durée. I suggest we avoid this distinction and consider the entire mix when we use the term “constructure”, because given the complexity perspective, there is no telling a priori which of the features in the mix will determine future developments – change often happens in the margins and begins a statistical minority or exception, often negatively qualified. Think of the spectacular rise of emoticons as part of several mainstream genres of writing nowadays. Emoticons have not replaced the conventional forms of alphabetic writing – we still write from left to right, and we still use the conventional “orthographic” symbols we associate with the written form of the language we are using. Emoticons have been added to the mix of contemporary writing, so to speak, they represent what we could call a “light” feature, blended with the “big” features of conventional orthography.

Constructures are, thus, a permanently unfolding mix of various separate “structures”, the momentary deployment of which in social practice grants the latter a degree of orderliness, recognizable and ratifiable for others.

Constructures as change

In constructures, we can unify traditional notions of “structure” and “agency”; slightly rephrased, we have a tool for recognizing two essential characteristics of social life – iterativity and performativity. Most of the behavior we deploy socially is overwhelmingly iterative, but slightly inflected by unique, creative and situated performativity – something Piia Varis and I earlier called “culture as acccent” (Blommaert & Varis 2015).

Observe that I do not equate iterativity with “stability” and performativity with “change”. The entire mix is continuously changing, including the “iterative” aspects of it. Detaching the performative “accent” from the iterative “structure” obscures the fact that, for people in everyday practice, the “accent” is often the essence of what they perceive as meaningful in social action. And it is by means of the performative “accent” that the iterative features of behavior are also transformed into unique and creative characteristics of specific social actions performed by specific people. To make a superficial comparison: every novel is a token of a genre-type “novel”; but we have our favorite novels as well as novels we can’t possibly enjoy because of the actual unique “accent” brought to each novel by its author. And the entire genre changes due to such unique, individual and innovative acts of creation, all of which develop within the genre of the novel.

Rather than as a concept that points towards the stability of social systems – the simplistic interpretation of “structure”, noted above – constructure thus points to the permanently changing nature of social systems. When we read Erving Goffman’s observations on social life in the US of the 1950s and 1960s, we can still recognize a great deal of it today, even if much of our social life these days is performed in a social space that didn’t exist in Goffman’s world: the virtual space of social media. Interaction in this virtual world is organized along different sets of norms many of which differ strongly from the ones Goffman detected in face-to-face engagements. Online sociality, however, has not replaced the Goffmanian world of social interaction – the mix has changed. Which is why we can still recognize ourselves in Goffman’s work, even if we realize that large chunks of our lives are led in very different ways. The constructures have changed.


Blommaert, Jan & Piia Varis (2015) Enoughness, Accent, and Light Communities: Essays on Contemporary Identities. Tilburg Papers in Culture Studies, paper 139.

Coupland, Nikolas (2016) Five Ms for sociolinguistic change. In Nikolas Coupland (ed.)Sociolinguistics: Theoretical Debates: 433-454. Cambridge: Cambridge University Press.

Giddens, Anthony (1984) The Constitution of Society: Outline of the Theory of Structuration. Cambridge: Polity Press.

Parsons, Talcott (1964) Social Structure and Personality. New York: Free Press.

Thompson, John B. (1984) Studies in the Theory of Ideology. Cambridge: Polity Press.

Williams, Glyn (1992) Sociolinguistics: A Sociological Critique. London: Longman.


On banter, bonding and Donald Trump

language: a feminist guide

In my last post I argued that gossip–personal, judgmental talk about absent others–is not the peculiarly female vice our culture would have us believe. Both sexes gossip. But one common form of male gossip, namely sexualised talk about women, is made to look like something different, and more benign, by giving it another name: ‘banter’.

A week after I published that post, along came That Video of Donald Trump doing the very thing I was talking about–and trying to excuse it, predictably, by calling it ‘locker room banter’.

There are many things I don’t want to say on this subject, because they’ve already been said, sometimes very eloquently, in countless tweets and blog posts and columns. I don’t need to repeat that Trump is a misogynist (which we already knew before we heard the tape). I don’t need to upbraid the news media for their mealy-mouthed language (the

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Why use new words?


Jan Blommaert 

I sometimes get asked why I insist on using new and arcane terms such as “superdiversity” and “chronotope” in fields for which we (appear to) have an established and consensual vocabulary. My answer is usually: sometimes we need new words for no other reason than to examine the validity of the old ones. A form of quality control of analytical vocabulary, if you wish.

The history of science is replete with reformulations of the same, or very similar, realities, and authors such as Michel Foucault were extraordinarily productive in the creation of an entirely new terminology to describe processes already described in, e.g., Weber and Marx. The quest was, almost invariably, a quest for enhanced precision and accuracy – rendering visible and analytically identifiable (often small but relevant) distinctions that had been left aside as relatively insignificant details, side-effects or mere aspects of another phenomenon; or to identify a phenomenon previously treated only in part or in a much to generalizing way. Think of Foucault’s use of “biopower” or “governmentality” as instances, Scott’s “hidden transcripts” or Bourdieu’s “habitus”. Such terms do not replace an earlier vocabulary, they complement it with tools that allow and enable a different approach to the same field or object, focusing on different aspects and characteristics of it.

In that sense, they are no one’s enemy. The more since, as C. Wright Mills reminded us, the debate should not be about the words, but about the ideas they capture and for which the words are merely facilitators.


TINA undressed 2: History without agency


Jan Blommaert 

This morning, ING Bank announced a worldwide restructuration in which 7,000 jobs will be cut, about half of which in its Belgian branch. The restructuration did not come as a surprise to many employees and observers, in spite of ING having done not too badly at all – the last decade saw a net profit of around 11 billion Euro, with over 7 billion in dividend, and a 30% increase in the CEO’s remuneration last year. So it is not that the bank is on the brink of collapse or that its shares are nosediving. Thus, why this range of deep-cutting measures?

ING communicated its decision in a statement called “Accelerating Think Forward“. The restructuration is part of a strategy implemented since 2014 (“Think Forward”), which now demands acceleration, more specifically “a number of initiatives to further improve the customer experience, further grow primary customers and lending, and increase efficiency”. The bank has done quite well, as we have seen. However, says CEO Ralph Hamers, “[w]e also promised to keep getting better and that is exactly what today’s steps are aimed at. Our recent successes allow us to do so from a position of strength.”

The past is, thus, just the take-off for the future. This future is by definition not known. But nevertheless, ING reads the signs:

“Customers are increasingly digital and bank with us more and more through mobile devices. Their needs and expectations are the same, all over the world, and they expect us to adopt new technology as fast as companies in other sectors. In order to continue to lead in digital banking, we need to offer a better customer experience, that’s instant, personal, frictionless and relevant. At the same time, banks are confronted with continuous regulatory burden and a prolonged period of ultra-low interest rates. These factors put pressure on the returns which are necessary to fund growth and investments, and cover our cost of capital.”

Observe how ING suggests that the prime mover behind this plan is the customer, whose preferences, demands and expectations have shifted into a direction that demands “a better customer experience, that’s instant, personal, frictionless and relevant”. Money only appears at the very end of the statement:

“In line with our strategy, we will be introducing ING Group financial targets for 2020. We will maintain our ING Group CET1 ratio above the prevailing fully-loaded requirement, currently 12.5%, with a leverage ratio above 4%. Our target for the cost/income ratio is 50-52%. In light of the continuing regulatory uncertainty, we are not updating our RoE target (currently 10-13% of ING Bank IFRS-EU equity), but we reiterate our intention to pay a progressive dividend over time.”

Given that we are talking about a bank operating in a competitive global banking universe and owned by shareholders demanding specific levels of return on investment, it is relatively safe to suspect that the real prime mover is profit, and that the new customer experience is a means to that end.

The reversal of those two elements brings us to the TINA (There is no alternative) frame. In an earlier piece I discussed how a particular discursive use of identity forms part of the TINA frame; here we see similar things happening with history. And to summarize the point, we see how in the ING statement, a particular distinction is made between

  • history with agency, and
  • history without agency

The history-with-agency is the strategy presented by the bank. Its plan “Thinking Forward” already incorporates a clear agentive frame – it’s the bankers who think – and “accelerating” that plan is obviously also something decided more or les sovereignly by the bank’s executives. The strategy, in short, articulates how the bank intends to control a future through specific measures designed to benefit from…. a history over which they have no agency. And this history-without-agency is described in the paragraph in which the developments in customer expectations and market circumstances are given.

From a purely factual viewpoint, the bank has co-shaped all the conditions presented in that paragraph. ING customers have, for years, been pushed towards more digital and less branch-based banking activities through measures implemented by no one else but the bank (and often contested by the customers themselves). The same goes for the “regulatory context” referred to, including the “ultra-low interest rates”, which occured often both in response to existing banking problems, as well as at the request of banking lobbies. None of these forces, thus, can structly be depicted as alien, outside forces over which the bank has no control. The same counts a fortiori for the elephant in the room: profitability target setting. The shareholders are the bank, and as we have seen in the fragment above, they have received 10-13% percent “Return on Equity” – a quite extraordinary level of profit, reflecting, one could say, quite unrealistic levels of expected profit growth. And these target settings are not forced upon the bank by outside forces.

The paradox, however, is that ING presents the entire operation as a rational response – their agency – to forces of history that they can only follow, by trying to remain ahead of them. In other words: they are suggesting that they respond to historical forces by shaping them. “Sorry, but there is no other way to respond to future challenges than to create them ourselves.” This paradox is nicely woven into the delicate discourse of cause-and-effect in the statement, and this particular discursive move feeds into the TINA frame: things are what they are, there is no alternative for history than a future shaped by us. We can see this nicely in this final fragment:

“While not all plans we present today are finalized, the intended initiatives are expected to result in a reduction of ING´s workforce in Belgium by around 3,500 FTEs and by around 2,300 FTEs in the Netherlands for the years 2016-2021. These numbers include the intended move to an integrated banking platform, with the remainder of functions affected spread over intended programmes in IT, operations, Wholesale Banking and various business support functions. At the same time, we will add colleagues in parts of our business where we expect to accelerate growth given our plans to continue to attract new customers and increase lending to support the economies we are active in.”

It’s all about agency here, and incidentally the agency articulated here touches precisely those causal forces previously described as beyond the grasp of the bank – the objective directions of history in the banking world.

At the heart of TINA, there is a lie – we all know that. The lie revolves around the suggestion of non-agency, of absolute and uncontrollable actors shaping fields of action in which those using the TINA frame claim to have just minimal, responsive, and therefore rational agency. While in fact, they are the actors. In other words: they pretend to be the victims of a future they themselves are engineering. And this future is, of course, an absolute and undisputable given, to which they can only adjust their course of action.