Data sets, a guide and a negotiating strategy!

As trade negotiators, one often grapples with models and treaty negotiations. One is in search of alternatives, models and diverse set of options. This is more so when trade negotiations are in multiple areas and not just the traditional tariffs and services sector. What if they cover competition, environment, labour, public enterprises and gender? The World Bank has termed them Deep Trade Agreements. They define it as:

Deep Trade Agreements are reciprocal agreements between countries that cover not just trade but additional policy areas, such as international flows of investment and labor, and the protection of intellectual property rights and the environment. While these agreements are still referred to as trade agreements, their goal is integration beyond trade or deep integration.

I came across this excellent and extensive exercise by the World Bank titled the Handbook of Deep Trade Agreements which covers a wide set of provisions across trade agreements which make a comparison of provisions across sectors of tariff, export restrictions, services, intellectual property, investment, visa and asylums, trade facilitation, technical barriers to trade, public procurement, subsidies, competition policy, state owned enterprises and labour market regulations. It compares different trade agreements with respect to the various provisions contained, similarities as well as different approaches in each of these sectors. A goldmine for researchers, ofcourse, but even greater help for trade and investment law negotiators to understand what the data set of 279 PTAs are telling us. They not only help in understanding some of the motivations of why certain provisions exist but also assist in ensuring bargains are more balanced.

Some great revelations in the Handbook that I found noteworthy in the conclusions after a quick read were as follows:

Investment:

• The scope and depth of investment provisions has increased over time, although at a modest rate. 

• Most PTAs extend national and MFN treatment in the preestablishment phase, while all provide for national treatment (and to a lesser extent MFN treatment) in the post-establishment phase. 

• A majority of PTAs offer investment protections in the form of provisions on expropriation and fair and equitable treatment. 

• The majority of PTAs include a broad “right to regulate” provision that allows the host state to override investment provisions for public interest or national security purposes. 

• Provisions aimed at protection of the environment occur in more than three-quarters of PTAs.

 • More than three-quarters of PTAs provide for investor-state dispute settlement. 

• PTA regional groupings demonstrate a number of common characteristics, particularly with regard to provisions on scope and definitions and investment liberalization and protection.

Intellectual Property:

 In the coming decade, three important questions are likely to rise to the fore: The first is whether any additional hubs will develop beyond the four mentioned above. To date, all of the hubs pushing forward with TRIPS-plus rules in PTAs are composed of advanced economies. However, as this chapter has noted, the frequency with which IPR-related provisions are included in PTAs concluded among developing countries has increased since 2011. Will this eventually result in a group of developing countries with a deep integration trade agenda to develop their own hub (e.g., a Pacific alliance in Latin America)? Or will the major centers for the development of TRIPS-plus rules remain in the advanced economies?A second question is whether there will be further consolidation of the existing models of IPR-related provisions that have arisen out of the four hubs. Already, there are cross-regional PTAs forming across some of these hubs, especially between the advanced Asian economies and the other hubs. With the US and EU already actively exploring the possibility of a trans-Atlantic PTA and the US open to rejoining the CPTPP, additional possibilities exist for further deep integration. How will this affect the development of TRIPS-plus rules and norms? Will this lead to even greater harmonization amongst the major economies? If so, will this be along the lines established in CPTPP, given its first-mover status as a megaregional PTA, or be based on another model?

Visa and Asylum:

Types of movement of persons. The focus of PTAs on specialized or high-skilled individuals is confirmed when looking at the types of movement of persons addressed: many PTAs address the movement, for example, of investors or dependents; very few cover migrant workers looking for employment, undocumented migrants or refugees. Importantly, of the 100 PTAs covering visa and asylum, 72 explicitly exclude employment on a permanent basis. In other words, migration in PTAs focuses on high-skilled, specialized individuals and temporary (not permanent) movement of persons. 

Environmental Regulations (ERPs- Environmental related provisions) 

PTAs negotiated between developed countries and between developed and developing countries tend to include the highest number of ERPs. High-income countries appear to be the primary proponents of including detailed ERPs in PTAs. Yet, several developing countries, in particular those that have already signed PTAs with high-income countries incorporating ERPs, have also increasingly incorporated ERPs into their trade agreements with other developing countries. The scope and level of commitments of these ERPs are, however, usually not as detailed as those found in PTAs negotiated between developed and developing countries. Overall, the evolution of the different types of ERPs incorporated in PTAs reflects a dynamic context in which PTAs often have a demonstration effect, enabling countries to negotiate and devise new ways to address emerging issues and challenges. 

 Trade negotiations are mostly about solid data, legal expertise and a clear vision of what the intended outcome should be of the intended trade arrangement. A lack of any one of the three could be disastrous. The dataset, analysis and conclusions offered in the handbook are definitely a useful guide to script one's own strategy to deal with a negotiating agenda. What kind of provisions exist in the area and what would benefit one's national interest the most? A clearer understanding of one's options is an asset in a negotiation.