This TINA is all about alternatives!

TINA is commonly referred to a "There is No Alternative" in negotiations parlance. However, this TINA (Trade Intelligence and Negotiation Adviser) here is all about alternatives!

As trade negotiators, one is often faced with the question of proposing suitable legal language that reflects one's national position as well as achieving optimum results in an agreement. While traditional areas in trade agreements have more or less standardised language, the picture is far less stabilized in newer areas (deep trade agreements) like labour, gender, environment, competition in terms of treaty language. The consequences of not comprehending the impact of treaty language can be devastating in case of a dispute. Obligations arise out of agreements and enforceability is the stick that ensures compliance.

In that context, having a knowledge of different approaches to treaty language becomes critical. It is an important tool in the capacity building effort of States to engage meaningfully in treaty negotiations. It becomes all the more critical for developing and least developed economies. Setting the rules of the game instead of being rule takers demands understanding of different provisions, their implications as well as nuanced differences. Including a "shall" can have very different consequences than a "may" or "should" though legal interpretations in dispute settlement may very well say a "should" is a "shall" in that context!

Efforts have been made in the past to provide such capacity in different ways. Found this interesting database called Legal TINA prepared by the UN's Economic and Social Commission for Asia Pacific. It provides a wealth of information on different RTAs covering areas both new and old, comparisons of treaty language and what their implications could be. A goldmine for treaty negotiators. It has a search provision area wise as well as issue wise.

I tried out some areas and found interesting results:

Labour, Business and Corporate Social Responsibility - A look at provisions related to corporate social responsibility shows a wide variety of commitments, soft approaches as well as divergent scopes.

D3.2.1 Corporate Social Responsibility

Example Provisions on Commitments to Corporate Social Responsibility

Example Option A: Corporate Social Responsibility

1. The Parties affirm the importance of each Party encouraging enterprises operating within its territory or subject to its jurisdiction to voluntarily incorporate into their business practices and internal policies those guidelines and principles of corporate social responsibility that have been endorsed or are supported by that Party, including the OECD Guidelines on Multinational Enterprises. These guidelines and principles address issues such as labour, environment, gender equality, community relations and anti-corruption.

2. The Parties shall make all possible efforts, through dialogue, consultations and cooperation to resolve any matter that may arise relating to this Article.

3. A Party shall not have recourse to dispute settlement under this Agreement for any matter arising under this Article.

Source: Canada-Israel, Article 16.4

 

Example Option B: Corporate Social Responsibility

Recognizing the importance of cooperation on trade-related and investment-related aspects of environmental and labour policies in order to achieve the objectives of this Agreement, the Parties may, inter alia:

(e) cooperate to promote corporate social responsibility, notably through the exchange of information and best practices, including on adherence, implementation, follow-up, and dissemination of internationally agreed guidelines and principles;

Source: Japan-United Kingdom EPA, Article 16:12 (e)(f)

 

Example Option C: Corporate Social Responsibility

1. Each Party affirms its commitment to enhance the contribution of trade and investment to the goal of sustainable development in its economic, social and environmental dimensions.

2. To that end, the Parties:

(e) in accordance with their domestic laws or policies agree to promote corporate social responsibility, provided that measures related thereto are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between the Parties or a disguised restriction on trade; measures for the promotion of corporate social responsibility include, among others, exchange of information and best practices, education and training activities and technical advice; in this regard, each Party takes into account relevant internationally agreed instruments that have been endorsed or are supported by that Party, such as the Organisation for Economic Co-operation and Development Guidelines for Multinational Enterprises, the United Nations Global Compact and the ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy.

Source: EU-VietNam FTA Article 13:10 (e)

 

Example Option D: Corporate Social Responsibility

The Parties shall strive to facilitate trade in products that contribute to sustainable development, including products that are the subject of schemes such as fair and ethical trade schemes, as well as those respecting corporate social responsibility and accountability principles

Source: UK – Ukraine, Article 279.3 

The stark contrast between the UK-Ukraine provision as compared to Canada Israel provision indicates the extent to which countries are willing to engage in adhering to commitments in this area. Further, the period in which the agreement was entered into is also relevant since perceptions and approaches have evolved over time. 

The intellectual property search provided alternative ways of incorporating provisions on compulsory licensing and protection of undisclosed test data - from being TRIPS compliant to TRIPS plus obligations.

The limitation of the Legal TINA could be the coverage of RTAs in its database, the time frame of these RTAs as well as non-consideration of innovative, out of the box legal, textual language not found in any RTA so far! However, it is definitely a great tool for trade negotiators to understand the legal landscape, the reasons for divergent viewpoints and how to tailor make one's position based on national interest and mutual benefit of the trading partner.

Hat Tip @Yann Duval!