Two Sides of One Coin: The US-Guatemala Arbitration and the Dual Structure of Labour Provisions in the CPTPP

Abstract

This article revisits and critically analyses the panel’s decision and reasoning in the dispute between the United States and Guatemala under the labour provisions of the Dominican Republic–Central America Free Trade Agreement vis-à-vis the treaty interpretation rules under the Vienna Convention on the Law of Treaties. It further seeks to draw implications for the construction of labour provisions of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). The article sheds light on the normative and theoretical rationales that underlie tradelabour linkages in general, and the labour provisions under such free trade agreements in particular. Ultimately, the paper makes a case for the dual structure of conditionality-based labour provisions, a legal characteristic that demands that each of them pursue two different goals, first, protecting labour rights as human rights (social goal) and second, securing the condition of fair competition in trade/ investment and preventing a race to the bottom in labour regulation (economic goal). With this proposal, it attempts to put the long-overlooked, deontologically normative value that labour provisions pursue in its right place without prejudice to their role of levelling the playing field.