Saturday, July 4, 2020

More on precautionism

Following up on "precautionism" that ex DG of the WTO, Pascal Lamy spoke about in a podcast blogged about here, I thought more about it. He mentioned that it tends to be more subjective and could lead to more protectionism than higher tariffs or quotas. Levelling the playing field is much more tougher when countries adopt more precautionary principles to determine what needs to be opened up and for how long.

This made me do a bit of research on the well known "precautionary" principle in EU trade policy. This detailed communication by the European Union on what the precautionary principle involves explains the circumstances under which the principle is applied.
The precautionary principle is detailed in Article 191 of the Treaty on the Functioning of the European Union. It aims at ensuring a higher level of environmental protection through preventative decision-taking in the case of risk. However, in practice, the scope of this principle is far wider and also covers consumer policy, European Union (EU) legislation concerning food and human, animal and plant health.
The summary goes on to state:
The precautionary principle shall be informed by three specific principles:
  • the fullest possible scientific evaluation, the determination, as far as possible, of the degree of scientific uncertainty;
  • a risk evaluation and an evaluation of the potential consequences of inaction;
  • the participation of all interested parties in the study of precautionary measures, once the results of the scientific evaluation and/or the risk evaluation are available.
In addition, the general principles of risk management remain applicable when the precautionary principle is invoked. These are the following five principles:
  • proportionality between the measures taken and the chosen level of protection;
  • non-discrimination in application of the measures;
  • consistency of the measures with similar measures already taken in similar situations or using similar approaches;
  • examination of the benefits and costs of action or lack of action;
  • review of the measures in the light of scientific developments.
 The debate really is to what extent "precautionism" can be used to be veiled protectionism. Risk evaluation and assessments do have their element of subjectivity. So while tariffs and quotas are objective numbers and limits, precautionism can turn more murkier.

Coming from a person who was the former EU Trade Commissioner, precautionism does ring a bell!

Friday, July 3, 2020

Moving from protectionism to precautionism?

What is the future of globalization post the pandemic? Pascal Lamy, the former DG of the WTO speaks about it here in a podcast reported in the Lowy Institute website.

Pascal Lamy cautioned that there would be more "precautionism" rather than protectionism. This would be more subjective and problematic. Some of the points on the podcast jotted down here:

On the future of globalization:
1. More obstacles to freer trade
2. Speed of globalization will change, but not towards deglobalisation
3. Slowing down of global trade - there is huge amount of helicopter money in some countries - so large State intervention in US, EU, China
4.Supply chain fragility - but more bark than bite 
5. Bit of rechoring may be in pharma
6. Precautionism as opposed to protectionism
7. It is protecting your people from risk - overall level of precaution will increase
8. Safety standards, security - precaution is a politically connected issue - what is a good level for you
9. As opposed to tariffs (usual tools) - addressing precautionism is very subjective - more fragmentation
10. Leveling the playing field of precautionism is more difficult
On the WTO
1. WTO is weaker than 10 years ago
2. Increasing divergence in collective preferences between the US and China
3. Updating the WTO rulebook - is what we say reform of WTO
4. China has changed - state owned part of economy is 30% of the economy
5. SOE needs support from the State - intervention - distorts the market, internally and externally
6. WTO disciplines in state aids are shallow and need to be strengthened - EU, US, China, Japan have to converge for competitive neutrality
7. US-China rivalry well placed to stay
8. Will take a few years to stabilize
9. WTO reform - short term goals - cooling down period, easing trade distortions, coalition of the willing to stop the distortions
10. Long term - Developing countries need to step in since international trade and investment is a big lever for development
Is it realistic that WTO will move forward?
1. Notion that playing field needs to be levelled is a major issue for developing countries - it is a further obstacle to development.
2. Notion of rebalance will remain
3. Is China a developing country anymore?
China and the WTO
1. Existing set of disciplines does not constraining some trade distorting practises of certain WTO players. 
2. No more convergence now. Co-existence now. 
3. If they do not accept new disciplines, then opening up trade will stop. The rulebook is not enough to adapt to the present trade distorting practises.
          4. US farm support also an issue. 

Lot of things to chew upon there. Reform required, but of what?
 
 
 

 
 
 



 



















Tuesday, June 30, 2020

How much protectionism is good?

A European perspective on how protectionism is not a remedy or an economic strategy is found in this VoxEU piece which traces the history of the US Smoot Hawley tariff to present day dynamics. It avers that high tariffs in the 1930's had led to more unemployment in the subsequent years.

The post dwells on the general trend across the world on looking inward - on shielding importers and domestic manufacturers, on promoting self-reliance and shunning external reliance.
The example of Great Depression protectionism is instructive for the world today. We are yet again at a point in history when protectionism is on the rise – and when governments are considering (and already pursuing in some cases) ‘beggar-thy-neighbour’ policies in the belief that such measures will boost jobs and growth. “America First” seems to be the guiding ethos of US international economic policy. Europe is debating whether it needs ‘strategic autonomy’ in a post-Covid world, and China is accelerating its own ambition of creating ‘indigenous innovation’ by restricting markets to foreign firms. Many supporters of these concepts are not shy about the essence: shielding domestic economies from imports.
On the way forward, the piece warns that more protectionism is not the answer to the challenges countries are facing - more trade, openness and reduction of barriers are. 
Like in 1930, there are loud calls for more protectionism which, for the most part, draw on ideas and policy initiatives that were conceived long before the pandemic started. Even if these ideas are dressed-up in popular-sounding terminologies – ‘America first’, ‘strategic sovereignty’ or ‘value chain repatriation’ – they all boil down to the same intention: reducing imports and reducing dependency on others in the belief that such actions create more jobs and prosperity. The anniversary of the SHTA should remind us that protectionism can lead to unintended and unwanted outcomes, and that trade restrictions during an economic crisis would make the situation worse rather than better. There are very real challenges posed by the current crisis which need to be confronted directly.  Else we may prove Mark Twain correct yet again: “History doesn't repeat itself, but it often rhymes.”1
However, this is easier said than done. Policy makers and political leaders face political consequences of their actions. This includes being answerable to their constituiences for the economic condition they are in. Arguments of economic efficiency and openness may not sell amidst growing unemployment. Losers in the business of open trade need to be addressed. Mere acknowledgement that there will be losers does not suffice. Whether compensatory programs are enough to turn the tide are debatable.

Again it is an issue of balance. How much does one liberalise, where and how? Can a calibrated system work? Can there be a rolling back of options? What about history and legacy - the most open societies were once highly protectionist in their initial years of industrial growth.

Neither unbridled protectionism nor the love for free trade is perhaps the answer. Then is it left for every country to chart its own course on the level of protectionism? That would lead to a chaotic world again. However, this is what multilateral negotiations are all about - how much to liberalise and at what costs.

Monday, June 29, 2020

USMCA or CUSMA or T-MEC?

The Kluwer Arbitration Blog is hosting an interesting series of articles on the investment provisions of the USMCA, a la CUSMA, a la T-MEC. 

NAFTA is gone, USMCA/CUSMA/T-MEC is in.


Image result for usmca images
                              (Courtesy https://www.unifor.org/en/take-action/campaigns/usmca)

Will do some blogposts on them soon.

But a bit of trivia:

United States calls the regional trade agreement USMCA (United States Mexico Canada Agreement)
Canada calls it CUSMA (Canada United States Mexico Agreement)
Mexico calls it T-MEC (Tratado entre Mexico, Estados Unidos y Canada)

Call it my whatever name you want, the provisions, impact and after effects will be the same!

Sunday, June 28, 2020

Of spirits, a debate and a spirited debate - Tariffs on wine and spirits!

The tariff war manifests itself in different ways. Raising tariff on imports produces losers as well as winners. We generally assume that increasing tariffs on imports on specific products, will by making those products costlier, benefit local producers of the same. It is a form of protecting one's businesses as well as strengthening one's industry.

Glasses Wine Spirits On Light Background Stock Photo (Edit Now ...


News of increased tariffs to be imposed by the US on EU wines and spirits is doing the news rounds here and here. This is in relation to the retaliation in the non-compliance by the EU in the Airbus WTO dispute. The EU is awaiting the WTO order on the Boeing WTO dispute that may perhaps give it the right to retaliate also.

In this blogpost, I wanted to reflect on some of the public submissions made by local US businesses on the proposed tariff rise. There is a portal on which public comments can be given and one can view the public comments already provided. Some of them make interesting reading and opens us to the reality of imports, trade and who benefits. This of course is product and nation specific, but in any case is a fascinating piece of information.

Some of the public comments on the proposed tariffs on wine is naturally from the US wine industry (consisting of US wine manufacturers as well as importers). 

This comment from a wine importer states:
Tariffs related to the importation of European wines will do nothing to benefit the American economy, the business of wine in American, nor the thousands of Americans who make their living through this business. Increased tariffs, on top of the already unnecessary 25% tariffs for certain European wines, will actually harm American businesses and kill American jobs. This will ruin the key relationships and trust in the American market that so many in our industry have worked for decades to create with partners in Europe and that dissolution of trust will only lead those producers to send their products to other, more favorable markets. In the way to the COVID-19 Pandemic, we've already seen hundreds of thousands of American jobs lost as they relate to the wine industry in the hospitality sector, more tariffs will only increase the lose of those American jobs further and make it more difficult for local and national US business to be successful moving forward.
Another one is more elaborate:
Adding a 100% tax on imported wines would devastate these industries, and eliminate the jobs and livelihoods of thousands of Americans, many of whom have specialized knowledge and skills specific to wine importing and that do not seamlessly translate to other industries. In addition to these adverse effects to the far-reaching wine import industry, I am further concerned that this proposed action by the USTR will lead to increased retaliatory tariffs on U.S. wines and set back ****** efforts to continue growing U.S. wine exports. Today, there is a gross surplus of wine – bulk wine in particular – that will not be consumed by Americans. Adding on top of that challenge the possibility of E.U. countries levying retaliatory tariffs, will be catastrophic to many American grape farmers. It could cause the shuttering of countless US wineries, because the E.U. is American wine's biggest export market, totaling $469 million in sales in 2018. I and my company support US efforts to hold our trading partners accountable, level the playing field for American businesses and forge enforceable trade agreements. We urge the US administration to get back to the negotiating table while working with our allies to develop global, enforceable solutions. An escalated trade war is not in the country’s best interest, and both sides will lose. I am counting on you to force a positive resolution that removes the current 25% tariffs, abolishes the proposed 100% tariffs, fosters American competitiveness, grows our economy and protects our workers and customers. 
A succinct, direct one is here:
As the General Manager of a small wine distributor and importer I am strongly opposed to any tariffs levied against European wine, foodstuffs, and other goods in response to the Large Civil Aircraft dispute. The tariffs levied in 2019 have already cost American jobs, and any expanded or increased tariffs will only cost more American jobs. What's more, it's American companies and consumers who end up paying for these tariffs as a result of higher prices. This does nothing to harm the European economy. What's more, these tariffs one wine, foodstuffs and other products have absolutely nothing to do with the aviation industry! These tariffs are misguided, should not be increased or expanded, and in fact should be repealed. Thank you for your time.
On how small businesses will be impacted, not the bigger ones, this one:
I own a small wine bottle shop. Half of my sales are European wines from France, Spain & Germany. I also buy from small importers & distributors. They can't absorb the increase in wines I buy & have my customers enjoying. If I'd have to raise prices at least double, that would put my distributors/Importers out of business, as well myself. What wine has to do with aircraft I have no idea. This will effect everyone in the industry & all you'll end up with is the huge companies. Small businesses built this country, not the Evil Empires! If this country is to continue, this should not happen!
Some support for the tariffs:
Using the approved WTO ruling of tariffs on products that can, and are, already manufactured in the USA will help grow our domestic manufacturing capability, thereby providing jobs in the important manufacturing sector. 
 What does one learn from this? 

Domestic industries (albeit importers/local businesses) are also impacted by tariffs on imported goods. If there is no adequate local manufacturing capacity, then it does not translate to any benefit. The pain of a few domestic players is inevitable when imposing a tariff that seeks to send a message to the importing country to bring its measure into compliance? What about the same products that are being exported? This report shows that as a result of tariffs on wine, American whiskey will also face the same fate in Europe and be impacted. The dichotomy between small businesses (whether manufacturers or retailers) employing local workers and interests of large corporations comes out very clearly. Of course, the consumer is not in the picture out here - typically not organised and electorally significant, her interests of reduced rates don't count!

This news report sums it up:
As the threat of tariffs on certain wines looms, Ades and others in the industry fear that many wineries and connected U.S. businesses will be unable to sustain the cost impact, and that consumers will face a reduction in choices on the wine shelf, in addition to higher price tags.          ....  
 “Tariffs may impact the country of origin, but they also have a real impact on Americans: from a jobs perspective, from a consumption perspective, from a life perspective,” says Ades. “They hurt American businesses and reduce jobs and income, which is why American wineries universally oppose these tariffs as well. It weakens their customers and their distributors.” 
Who are the winners and losers? Where are jobs lost? Which industry is impacted the most? What do consumers gain from this? How does it impact the country of origin? 

It is sure a spirited debate!

Saturday, June 27, 2020

It is not globalisation anymore - it is slowbalisation!

It is no more GLOBALISATION  - call it SLOWBALISATION now. This was the call pre-Covid-19.



                                                           (Courtesy - The Economist)

The Economist in January 2019 coined a new term adapting a term used by a Dutch writer - Slowbalisation - to indicate the current reversal of openness in global trade and investment.
Globalisation has slowed from light speed to a snail’s pace in the past decade for several reasons. The cost of moving goods has stopped falling. Multinational firms have found that global sprawl burns money and that local rivals often eat them alive. Activity is shifting towards services, which are harder to sell across borders: scissors can be exported in 20ft-containers, hair stylists cannot. And Chinese manufacturing has become more self-reliant, so needs to import fewer parts.
On the fundamental principles of national treatment and most favoured nation treatment, it had this to say:
Less glaring, but just as pernicious, is that rules of commerce are being rewritten around the world. The principle that investors and firms should be treated equally regardless of their nationality is being ditched.
On the eternal question of whether we need to globalise or not, it had this to offer:
Globalisation made the world a better place for almost everyone. But too little was done to mitigate its costs. The integrated world’s neglected problems have now grown in the eyes of the public to the point where the benefits of the global order are easily forgotten. Yet the solution on offer is not really a fix at all. Slowbalisation will be meaner and less stable than its predecessor. In the end it will only feed the discontent. 
Mitigating the costs of global trade has been the quintessential question - how does it impact our producers, workers and industries? How will jobs be impacted in our country? How will it impact local businesses? What impact would it have on local supply chains? How much should we depend on foreign suppliers? How much sovereignty would we lose? What policy space is left to enact laws and regulations to ensure local communities benefit or are not impacted? 

These are some of the questions that policy makers have to engage in before deciding on appropriate trade policy. Too little has been done to mitigate globalisation costs, it is said. But the question is do governments have the ability to mitigate the costs at all?

Will slowbalisation now, post the pandemic, lead to ultra-slowbalisation?


Friday, June 26, 2020

Not walking out of the WTO anytime soon?

I had blogged about legislative moves in the US to walk out of the WTO here. Latest reports suggest that this may not actually happen immediately now.

Section 125 of the Uruguay Rounds Agreements Acts passed in 1994 in the US specifically provides for a procedure to be followed to review US participation in the WTO. A joint resolution of the 2 Houses of the US Congress can result in the US withdrawing from the WTO.

Section 125(b)(1) states that the approval of the Congress, provided under section 101(a), of the WTO Agreement shall cease to be effective if, and only if, a joint resolution described in subsection (c) is enacted into law pursuant to the provisions of paragraph (2).

Section 125(c) of the Act enumerates the procedure that a joint resolution would have to undergo for the US to withdraw from the WTO.

The Rules for conduct of business of the 116 Congress states in point 37 as follows:

"Provides that the provisions of section 125(c) of the Uruguay Round Agreements Act shall not apply during the remainder of the One Hundred Sixteenth Congress."

So, next session may be?

Thursday, June 25, 2020

Some weekday readings on WTO, trade and China!

Some reports on trade, WTO and China's growth in the global sphere made interesting weekday reading:

Politico reports that there may be soon a Congressional vote in July on whether US should stay in the WTO. Like earlier attempts, this might just be another damp squib.
Why it matters: The decision means lawmakers will be forced to go on the record either in favor or against withdrawing from the WTO, which the Trump administration has frequently accused of being unfair to the United States.
The push to get out of the WTO comes as the United States and the 163 other members of the organization are in midst of selecting a new director general to succeed Roberto Azevêdo, who is leaving at the end of August.
Opponents of the resolutions say U.S. withdrawal from the WTO would give Beijing more influence, not less, over the global trading environment. The measures also ignore the leading role that the United States played in creating the WTO and its predecessor organization, the General Agreement on Tariffs and Trade, those opponents say.
Some news in the Huffingtonpost of churning of who handles trade related matters in the UK amidst Brexit talks and the emergence of a possibility of a US-UK trade deal. No matter which economy, there continues to exist the tension between economic diplomacy and foreign diplomacy. Some get reported, some don't. The talk of rejigging the Department of International Trade in the UK, after the Department of International Development merged with the Foreign Ministry is found here:

“What is also clear is that we have to speak with one voice internationally, which is why I’m working very closely with the foreign secretary, which is why our trade commissioners are working closely with local ambassadors and high commissioners. And I am focused on getting this job done and realising those opportunities.” 
The Washington Post has this "WTO for dummies" piece on why the next WTO DG needs to be in place to save the crumbling world economic order. It argues:

If members can align behind a candidate committed to modernization, it could break bureaucratic logjams and help unleash a wave of global growth at a time when it is needed most. If no such candidate can be found, the WTO risks further receding into irrelevance.

 

Res ipsa loquitur?

And finally, this masterpiece on China's story over the centuries is a must read. The Council on Foreign Relations has brought out this illustrative piece on how China views itself in the world and it's rise in global geopolitics and institutions.Titled "China's Approach to Global Governance" it charts a centuries old journey and what the future holds for China in multilateral relations.
Over the last two decades, China has regained much of its influence in the world, as Beijing is making progress toward its dream of restoring what it sees as its rightful great power status. Beijing has built up its influence over global governance in particular, gaining a greater say within important organizations while also launching new initiatives like the Belt and Road Initiative. China’s increased involvement in global governance expands its international political clout, helps it project soft power, and also promotes its domestic economic development.
In the future, if its economy continues to grow over the long term, China will more forcefully set the terms for global governance. It will wield greater power within long-standing organizations like the World Bank and United Nations and also will strengthen new, China-dominated institutions.
Beijing’s more assertive approach could enhance the international system. China could shoulder greater international responsibilities and prod global governance institutions to better represent the needs of emerging powers. It could facilitate international solutions on climate change in particular. And Beijing has shown, with the Asian Infrastructure Investment Bank, that it can launch an institution that works within existing global governance norms.
But China’s increasingly assertive presence could prove divisive, especially in areas like development finance, where Beijing’s approach could marginalize existing institutions. Such divisions could paralyze collaboration in critical realms of global governance. And while in some areas, such as climate change, China does not try to impose its own visions and models, in areas of human rights and internet governance, Beijing tries to promote its own, more authoritarian norms. In May 2020, Beijing passed new legislation giving China extensive powers to crush dissent in Hong Kong, seriously threatening the special administrative region’s autonomy. If China (and Russia) can set the standards for internet governance, for instance, they could pave the way for other countries to embrace cyber sovereignty, sparking a divided world with two internets—one generally open and the other closed and favored by autocracies.
 Everyone is waiting to see how the fall out of the emerging power disruption - will it strengthen, equalise the multipolar world or will it lead to the re-emergence of blocs and divergent groupings poised for conflict. Or a more nuanced way to look at it is - issue based coalitions of the willing.




Wednesday, June 24, 2020

Lets talk about services trade policy!

When one talks about trade policy, protectionism and liberalisation, one tends to focus on goods and manufacturing. But there is a large segment of trade - services that misses the eye. What are the restrictions in the services sector. How have they been liberalised? Have they seen similar trends of protectionism like higher tariffs or export controls?

These issues have been addressed in this Vox EU piece titled "Services trade policy since the Great recession" which argues that though there have been liberlaising trends in certain sectors like finance and telecommunications, certain behind the border measures do exist that are not really liberalising.
To conclude, the last decade has seen steady and widespread liberalisation, but with a twist. While markets in services, e.g. finance and telecommunications, are increasingly free from explicit restrictions on entry and ownership, they are increasingly subject to greater regulatory scrutiny (e.g. economic needs tests, FDI screening), especially in higher income economies. This raises several questions for future analysis. Does this type of measure reflect ‘learning-by-liberalising’, in that lessons have been learnt on the need to complement openness with more stringent prudential regulation? Do they reflect a shift analogous to the reversal of openness in goods trade policy, ostensibly on security grounds, but possibly in response to the increased competitiveness of developing economies’ services firms? And do they signal a trend towards de jure openness but de facto discretionary policy, in particular at the point-of-entry stage (e.g. through FDI)? These policy trends deserve further analysis.
In intangible nature of services trade has always been a difficult issue to deal with it. Data on services trade, sector wise growth and barriers to services trade have been far more complex than goods trade. Further, immigration law intertwines with movement of people across borders complicating the issue even further. With services sector increasingly constituting the GDP of many emerging economies, a rigorous analysis of services trade policy, markets and impediments would help nations further their trade agendas. 

I found the "learning-by-liberalising" concept interesting - tightening conditions of providing the services based on lessons of history of liberalisation. However, there is a limit to learning by liberalising i.e one cannot go back on commitments in the GATS schedule or in bilateral trade agreements based on how liberalisation has impacted the domestic sector. However, the tightening could be in norms and regulations equally applicable to domestic players.This is more like calibrtaed liberalisation in a nuanced way!

Tuesday, June 23, 2020

ISDS and a pandemic - Not now please!

I had blogged about a call for an ISDS moratorium here in the context of the Covid pandemic. Jeffrey Sachs and James Bacchus have elaborated on this thought here:
There are four reasons for an immediate moratorium on new ISDS cases: 
First, the necessary business closures and other emergency responses will create unprecedented and far-reaching changes in the business environment and lead to lost income and profits. This requires widespread relief to companies and people. But ISDS provides special relief only for international investors, distorting support schemes and diverting governments’ attention from the needs of individuals and economic actors on the ground. 
Second, ISDS awards to investors from host governments frequently total many millions or even billions of dollars, which can represent sizable percentages of the budgets of developing countries. These legal penalties weigh heavily against the dire budget crises facing these developing countries in the context of the COVID-19 pandemic. The international arbitration community must ensure that ISDS does not deepen the inevitable fiscal crisis. 
Third, the mere threat of suits could chill the taking of crucial and timely regulatory or other governmental action. Governments must be able to fulfill their highest duty of protecting their citizens and halting the spread of the pandemic without fear of facing ISDS claims.  
Fourth, ISDS is not suitable as a remedy for addressing these claims, given the unprecedented nature of the crisis and the unprecedented scale and scope of public actions needed to address the crisis. There are no agreed international guidelines for how to proceed in these circumstances.  

The pillars of a NO - ISDS season during Covid:
1. Focus will shift to foreign investors instead of addressing local needs
2. ISDS claims can be debilitating for some governments - it runs into billions of dollars
3.Regulatory chill can be created - a devastating effect during times of crisis
4. Not suitable during emergencies such as pandemics

I am curious - Are there any claims during this period? Any ISDS disputes related to Covid in the offing? 

Monday, June 22, 2020

Those security exceptions - no more self judging

Is the "self-judging" security exception no more self judging? Have successive panel interpretations essentially made it an objective test that the panel decides? Is it a case of reading too much into the treaty provisions or is it a recognition that judicial interpretation invariably leads to an objective assessment of facts in the context of the provisions of law.

These rather obvious questions came up when reading the WTO panel report in Saudi Arabia - Protection of Intellectual Property Rights (WT/DS567/R) blogged about earlier here, especially the security exception defence that Saudi Arabia put up under Article 73 of the TRIPS Agreement.

Saudi Arabia claimed that the measures at issue which were challenged by Qatar were justifiable under the security exceptions provisions of the TRIPS Agreement.

Article 73(b)(iii) of the TRIPS Agreement which mirrors other security exception clauses in WTO Agreements states that Members are not prevented from taking any action which it considers necessary for the protection of its essential security interests taken in time of war or other emergency in international relations.

This looks apparently "self judging" - in terms of the final arbiter of what constitutes security interest and what measures need to be taken to achieve them. The Member can take ANY action which IT CONSIDERS NECESSARY for the protection of ITS ESSENTIAL SECURITY INTERESTS. Therefore is this right an unfettered one? Can the the actions be called into question for not being necessary? Can the issue of whether an emergency in international relations exists be subject of debate? Or can there be a determination that it has no relation to its essential security interest? Or can the Member's claim of an essential security interest itself be subject to adjudication? What are the thresholds or parameters to determine each of these requirements? 

Yes, all of this can be subject to a panel determination so what seems to be a rather discretionary provision is in effect rendered subject to an objective assessment of the facts and circumstances by a panel.

The panel in the Saudi Arabia dispute went threadbare into all of these factors.

On the existence of an emergency in international relations, the Panel held:
7.262. Saudi Arabia's severance of all diplomatic, consular and economic ties with Qatar, viewed in the context of similar actions taken by several other nations and the relevant history recounted in this Report, falls into the category of cases in which such action can be characterized in terms of an exceptional and serious crisis in the relations between two or more States.
         ... 
7.270. The Panel thus concludes that the measures that, directly or indirectly, have had the result of preventing beIN from obtaining Saudi legal counsel to enforce its IP rights through civil enforcement procedures before Saudi courts and tribunals (i.e. anti-sympathy measures), and Saudi Arabia's non-application of criminal procedures and penalties to be applied to beoutQ, were "taken in time of war or other emergency in international relations". 

There were two measures that Saudi Arabia specifically took in relation to the Qatari firm - one was denying access to legal counsel (law firms in Saudi Arabia to beIN) in civil intellectual property infringement proceedings in Saudi Arabia. Second, criminal proceedings against beoutQ were not initiated for intellectual property violations in Saudi Arabia.

Interestingly the panel made a distinction between the denial of legal counsel in Saudi Arabia and the non-prosecution in criminal proceedings.

In case of access to legal counsel, the Panel held:
7.286. The measures aimed at denying Qatari nationals access to civil remedies through Saudi courts may be viewed as an aspect of Saudi Arabia's umbrella policy of ending or preventing any form of interaction with Qatari nationals. Given that Saudi Arabia imposed a travel ban on all Qatari nationals from entering the territory of Saudi Arabia and an expulsion order for all Qatari nationals in the territory of Saudi Arabia as part of the comprehensive measures taken on 5 June 2017, it is not implausible that Saudi Arabia might take other measures to prevent Qatari nationals from having access to courts, tribunals and other institutions in Saudi Arabia. Indeed, it is not implausible that, as part of its umbrella policy of ending or preventing any form of interaction with Qatari nationals, as reflected through, inter alia, its 5 June 2017 travel ban intended to "prevent[] Qatari citizens' entry to or transit through the Kingdom of Saudi Arabia", which forms part of Saudi Arabia's "comprehensive measures", Saudi Arabia might take various formal and informal measures to deny Saudi law firms from representing or interacting with Qatari nationals for almost any purpose.

However, the panel found that there was no relation between the measures Saudi Arabia took in case of non-prosecution of criminal proceedings for the following reasons:

7.289. In the Panel's view, however, the same conclusion cannot be reached regarding the connection between Saudi Arabia's stated essential security interests and its authorities' non-application of criminal procedures and penalties to beoutQ. In contrast to the anti-sympathy measures, which might be viewed as an aspect of Saudi Arabia's umbrella policy of ending or preventing any form of interaction with Qatari nationals, the Panel is unable to discern any basis for concluding that the application of criminal procedures or penalties to beoutQ would require any entity in Saudi Arabia to engage in any form of interaction with beIN or any other Qatari national.
         ...
7.293. The Panel concludes that the non-application of criminal procedures and penalties to beoutQ does not have any relationship to Saudi Arabia's policy of ending or preventing any form of interaction with Qatari nationals. Therefore, the Saudi authorities' non-application of criminal procedures and penalties to beoutQ is so remote from, or unrelated to, the "emergency in international relations" as to make it implausible that Saudi Arabia implemented these measures for the protection of its "essential security interests". As a consequence, the Panel concludes that the non-application of criminal procedures and penalties to beoutQ does not "meet a minimum requirement of plausibility in relation to the proffered essential security interests, i.e. that they are not implausible as measures protective of these interests".
Thus, it found one set of measures consistent with the security exception while finding the other inconsistent.

The Panel looked at the measures in detail, analysed their impact as well as made an assessment whether they had any relationship with the essential security interest that Saudi Arabia had espoused.

Therefore, WTO members can no longer be confident that their measures would satisfy the national security exception simply because they undertook them in their assessment and were convinced that it was done to protect their essential security interests. An assessment made internally by a set of policy makers may not necessarily fulfil the obligations under the WTO agreements. Subjective assessment has to give way to and objective assessment of the need for such measures as well as their relation to the overall purpose of national security. The legal standard set forth as well as the co-relation between the measure and the stated objective should be clear. Security exceptions are no longer the magic wand to impact trade.

Nations using the security exception may want to be bit more weary than before. But of course, there is long time between a measure and when it gets declared inconsistent at the WTO. With more countries invoking the national security exception in the context of growing trade tensions, security interests and trade wards, are we going to see the scope of the provisions being expounded even further by dispute settlement panels?

An interesting aspect of whether panels and the Appellate body "make law" is raging in the WTO. This para of the panel report caught my eye:
7.268. The Panel recalls that the WTO dispute settlement system is not meant "to encourage either panels or the Appellate Body to 'make law' by clarifying existing provisions of the WTO Agreement outside the context of resolving a particular dispute". In the light of its findings above, the Panel does not consider it necessary to rule on certain issues discussed by the parties or third parties about how a panel should proceed in a case where it is not persuaded that an "emergency in international relations" exists, or is presented with an insufficient basis upon which to make any determination of that issue. The Panel has found, on the basis of the facts in this dispute, that an "emergency in international relations" exists in this case. 
This made in the context of deciding on an issue that was not required in the context of the case and seems justified. However, how about interpreting the provisions of the text to enable a more deeper assessment of the measures at issue - would that not tantamount to making law?




Sunday, June 21, 2020

Reforming the ISDS - what is the solution?

The reform of the ISDS has continued to be a subject of debate at various fora. Whether it is UNCITRAL Working group, the rescinding of BITs, re-envisioning investment treaties, the EU Multilateral Appellate court proposal or just reforms in iSDS procedures to make it more palatable.

Nicholas Diamond and Kabir Duggal have written about ISDS reform and human rights considerations in this blog piece. Human rights considerations have been aligned to the SDGs, ensuring more transparency, avoiding regulatory chill and third party participation. The focus now on ISDS reforms are now on procedural fairness and transparency rather than socio-economic rights of third parties or the need for policy autonomy of States.
Looking ahead, the future for second- and third-generation rights in ISDS reform efforts remains uncertain. The procedurally-driven reforms provide a sound foundation for subsequent development of substantive rights beyond the civil and political rights that have historically predominated ISDS. Yet without attention afforded to second- and third-generation rights in reform efforts, resultant pressure is placed on other avenues for raising such considerations including, inter alia, modification of investment treaties. States play a critical role in this process and can support alignment between procedurally-driven reform efforts and substantive provisions in investment agreements and policies. If the ISDS system is to evolve to better recognize human rights considerations, then reform efforts must provide for a foundation that envisions all generation of rights.

With the Appellate Body of the WTO is a precarious state, would the multilateral appellate mechanism for investment disputes offer any solace? Yes, they are different eco-systems - but to some the appellate process that has been a complete failure at the WTO may not offer solutions in the investment arena. Further, many States are arguing for doing away with ISDS and adopt a more State to State or co-operation oriented investment framework for international investments. How does that fit into the ISDS reform agenda?

The question is to what degree of reform in the current ISDS framework, both procedural and substantive, would satisfy the naysayers? Also, to what extent would States adopt non-traditional investment dispute models - State to State or otherwise? Today, developing countries are also becoming exporters of FDI. Would this influence the way they look at ISDS and its benefits?

Also, how is literature relating to the impact of investment treaties on FDI shape State's attitude towards negotiating positions. Some argue there is no sufficient co-relation or at best a weak one between strong ISDS provisions and foreign direct investment. Other factors like political stability, investment climate, existence of supply chains and the general domestic environment is far more important.