Comprehensive Economic Trade Agreement Research Articles

(De‐)politicization Discourse Strategies: The Case of Trade

AbstractExamining (de‐)politicization as an actor‐driven phenomenon, this study asks: How and to what extent do actors in the public sphere attempt to (de‐)politicize European Union (EU) policies? (De‐)politicization is understood not only as a process but also as the deliberate framing of debates over EU issues at a domestic level. This paper conceptualizes (de‐)politicization acts in the public sphere and shows how these can be detected empirically through a claim‐level (de‐)politicization index. This approach is applied to a database of evaluations (claims) on EU trade, by EU actors, national executive actors and societal actors, surrounding the Transatlantic Trade and Investment Partnership and the Comprehensive Economic Trade Agreement, in the media of six Member States (Germany, France, Spain, Italy, Poland, and Denmark). Whilst all kinds of actors may engage in (de‐)politicization, the analysis of the index allows us to determine if a certain category of actors does so to a greater or lesser extent compared with others.

Ratification of the ISDS Provisions in CETA – Current Court and Legislative Challenges – an Overview

This article considers the recent rejection of challenges to the ratification of the Comprehensive Economic Trade Agreement with Canada (CETA), by both the German Constitutional Court in March 2022, the Irish High Court and the Irish Supreme Court decision in November 2022, and the likely future path towards ratification. It considers the background to these court challenges, including the request from the Kingdom of Belgium to the Court of Justice of the EU (CJEU) on the compatibility of the ISDS provisions of CETA with EU law, the underlying themes in the German and Irish court challenges, and the position on ratification across other countries in the EU. It concludes that the path to ratification is unclear and that the EU may be forced in the future to adopt a split model to any Free Trade Agreement with Canada.

EU-Canada Strategic Partnership: Ups and downs

Signed in 1976, the EU-Canada relationship was the first bilateral agreement that the EU signed with an industrialised third country. Modest strengthening of the ties was achieved with the 2004 EU-Canada Partnership Agenda. A fully-fledged free trade agreement was in the works at this time, but suspended in 2006. The EU-Canada strategic partnership agreement (SPA) and the Comprehensive Economic Trade Agreement (CETA) did not materialise until more than a decade later, in 2016. This paper focuses in particular on the strategic partnership dimension. It explores why an SPA was possible in 2016, but not before. To answer this question, the paper looks at four time periods. In so doing it explores the origins of the EU-Canada agreement, how the EU-Canada relationship changed over time, and examines how a more profound strategic partnership came about when it did. In its analysis it considers institutional, domestic and geopolitical factors. It briefly speculates about the possible future of this partnership.

Trust and Support for Comprehensive Trade Agreements in the European Parliament

Abstract Comprehensive Trade Agreements (CTAs) constitute a new generation of free trade agreements, which challenge traditional models of trade preferences. To understand preferences toward CTAs I present a new predictor, trust in government, that explains support for CTAs in the European Parliament. I develop a unified framework that includes economic and noneconomic factors to explain trade preferences, and analyze support for three recent CTAs: the Transatlantic Trade and Investment Partnership (TTIP), the Comprehensive Economic Trade Agreement with Canada (CETA), and the EU-Korea Free Trade Agreement. Using an original dataset on trade voting and a multilevel model, I show that higher levels of citizens’ trust in government make Members of the European Parliament more likely to vote in favor of CTAs. My research offers a novel theoretical argument and insights on the connection between public trust and elite position-taking.

CJEU Opinion 1/17: Keeping International Investment Law and EU Law Strictly Apart

With Opinion 1/17, the Court of Justice of the European Union (CJEU) approved the Investment Court System (ICS) contained in the Comprehensive Economic Trade Agreement (CETA) between the EU and Canada. This means that the EU can proceed with the ratification process of the investment protection part of CETA and the other free trade agreements it has concluded, and which contain a similar ICS. However, as the author illustrates, the approval of the ICS is conditioned by a complete isolation of EU law from international investment law. More specifically, the CJEU made clear that the ceta tribunals operate outside the EU legal order and have no power to interpret or apply EU law. At the same time, the CJEU highlighted the importance that the ceta Parties adopt supplemental rules for reducing the financial burden for access to the ICS for small and medium-sized enterprises (SMES). Additionally, the CJEU rejected the currently existing possibility that binding joint interpretations of the ceta Parties could have retroactive effect. In sum, the approval of the ICS by the CJEU enables the European Commission to continue to develop the multilateral investment court (MIC) within the uncitral Working Group iii as long as it follows the blueprint of the CETA ICS.

WTO Dispute Settlement, Investor-State Arbitration and Investment Courts: Exploring Themes of State Power, Adjudication & Legitimacy

U.S. assertion of political power in the World Trade Organization (WTO)’s appointment process reminds us of the tenuous balance that exists between state power, adjudication and legitimacy in WTO dispute settlement. Even more fundamentally, it prompts questions about whether reformation of investor-state dispute settlement based on the WTO’s dispute settlement mechanism will solve the legitimacy crisis (real or perceived) that currently threatens the international investment law regime. To address that question this paper explores the contours of state power and adjudication in the dispute settlement mechanisms underpinning the international trade and international investment law regimes. An overview of the historical development of dispute settlement mechanisms in each of these regimes reveals the existence of a long-standing tension between adjudication and sovereign regulatory authority, with the legitimacy of each regime coming under question. Responses to these so-called legitimacy crises vary between the international trade and international investment law regimes and, to some extent, depend on the power states have to respond to such crises. Whether innovations, such as the investment court established in the Comprehensive Economic Trade Agreement between Canada and the European Union, will solve international investment law’s legitimacy crisis remains an open question.

Hold on to Your Hat! Issue Conflicts in the Investment Court System

Abstract Since 2015, the European Commission (EC) has been advocating the establishment of an investment court system (ICS). A key aspect of the proposal is the creation of the strictest ethical standards ever seen in the field of investor-state arbitration. The exercise of functions as an arbitrator does not traditionally require exclusivity, and many lawyers offer their services in the market in other capacities. This situation is described as the “double hat” phenomenon and is seen as one of the most frequent moral hazards in investment arbitration. Both the Comprehensive Economic Trade Agreement (CETA) and the Commission’s investment chapter proposal for the Transatlantic Trade and Investment Partnership (TTIP) prohibit adjudicators from acting as legal counsel in other investment dispute cases. This article discusses the potential advantages and drawbacks of the EC’s approach to the “multiple hat” problem and their potential impact on the investment arbitration system as a whole.

Trade from the Trenches: Negotiating in Practice

The Transatlantic Trade and Investment Partnership (TTIP) generated significant public curiosity about trade, triggering a passionate debate reflecting many concerns. The European Commission Communication ‘Trade for All: Towards a More Responsible Trade and Investment Policy’ (2015) was intended to support a well-informed debate based on facts, and this was followed by ‘A Balanced and Progressive Trade Policy to Harness Globalisation (2017)’. EU Member States, in the Council, have always been closely involved in trade negotiations, giving the mandate to the Commission to negotiate, following progress closely and approving the results of the negotiations. A positive side-effect of the public debate on TTIP and subsequently the Canada-EU Comprehensive Economic Trade Agreement (CETA) is that it has awoken curiosity on trade and investment negotiations. This article provides an overview of the lifecycle of a negotiation focusing on the procedural steps, efforts to increase transparency and engagement with stakeholders.

EU and trade policy-making: the contentious case of CETA

The final version of the Comprehensive Economic Trade Agreement (CETA) between the European Union (EU) and Canada represents the archetype for new trade regimes. Ratification, however, has become an increasingly contentious issue for the EU. We argue that while CETA was pushed by a coalition of sectoral actors, the support for such an agreement increasingly dwindled. This is due to a vehement anti-FTA sentiment across the EU, propagated by the onset of Transatlantic Trade and Investment Partnership negotiations. We state as paradox that the Commission insisted to include the Canadian provinces in order to secure the operation of an agreement and at the same time neglected its own weak political power to settle the agreement. CETA came into being but may not become the comprehensive agreement as it was being negotiated as the investment chapter may run into ratification problems by a small number of member states.

Towards a New Horizon in Investor–State Dispute Settlement? Reflections on the Investment Tribunal System in the Comprehensive Economic Trade Agreement (CETA)

AbstractThe Comprehensive Economic Trade Agreement (CETA) between Canada and the European Union is the first treaty to specify new rules governing the identity and tenure of arbitral members and provide a more extensive review function through a two-tiered investment tribunal system (ITS). CETA signals a shift towards a more public and judicialized system, akin to that of many national legal systems and the World Trade Organization. The ITS creates a permanent first instance tribunal and an appeal tribunal (featuring a pre-elected roster of tribunal members), which is competent to review the tribunal’s decisions for errors of law and fact, as well as on the grounds of Article 52 of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) — making it a novel one-stop-appellate-shop. This treaty comment assesses the operation of, and reasons for, key provisions of CETA’s Investment Chapter and examines the extent to which it addresses points of criticism and lessons learned from the experience of arbitrating under the North American Free Trade Agreement and other open-textured treaties. The analysis draws analogies to, and distinctions from, other treaties and relevant jurisprudence that have influenced the negotiators. Among CETA’s most striking features are its purported modification of existing arbitral rules (ICSID Convention, ICSID Additional Facility Rules, and UNCITRAL Arbitration Rules) and its removal of disputing party involvement in the selection of the tribunal in favour of a roster appointed ex ante by the state parties, which results in a considerable amount of the investor’s autonomy being stripped away. While these and other issues must be further analyzed and balanced in the context of present discussions regarding the creation of a multilateral investment tribunal, CETA nevertheless contains significant procedural and substantive innovations and stands as a guide for future treaty negotiations and reforms of investor–state dispute settlement.

The New EU-Led Approach to Investor-State Arbitration: The Investment Tribunal System in the Comprehensive Economic Trade Agreement (CETA) and the EU–Vietnam Free Trade Agreement

The New EU-Led Approach to Investor-State Arbitration: The Investment Tribunal System in the Comprehensive Economic Trade Agreement (CETA) and the EU–Vietnam Free Trade Agreement

Investor-State Dispute Settlement and the Future of the Precautionary Principle

Abstract The proliferation of bilateral investment treaties and investment chapters in trade megatreaties and the associated increase in the preference of investors for investor-state dispute settlement has given rise to concerns that the regulatory sovereignty of both developed and developing states might be compromised. In response to these concerns many trade agreements (including the recently concluded Comprehensive Economic Trade Agreement between the European Union (EU) and Canada) have incorporated provisions designed to protect the regulatory sovereignty of nation states, especially in relation to labour standards, public health, phytosanitary and environmental protection. This paper examines the nature and scope of environmental protection measures in investment chapters and attempts to analyse the extent to which these measures will, in practice, prevent challenges by investors seeking to chill or prevent environmental regulations which might threaten their investments. The analysis concentrates particularly on measures based on the precautionary principle and uses the current EU restrictions on neonicotinoid pesticides as a case study. The paper concludes that the measures included in investment chapters designed to prevent such challenges by investors will not necessarily achieve the desired level of protection for environmental regulatory sovereignty.

From Trade Liberalisation to Transnational Governance and TTIP: How Dani Rodrik, Karl Polanyi and the Varieties of Capitalism Studies May Help Us to Understand the Present State of Globalization

This paper discusses the fundamental tensions between economic globalization and democratic politics in the field of international trade governance. The move towards mega-regional trade agreements, as heralded by the controversies over the Transatlantic Trade and Investment Partnership (TTIP) and the Comprehensive Economic Trade Agreement (CETA), has greatly accentuated grievances and is therefore of exemplary importance in the realms of transnational governance. Based on the theoretical frameworks of Karl Polanyi and Dani Rodrik, we examine the decoupling of these agreements from national and democratic control and the resulting legitimacy impasses of transnational governance. Arguing that politics is not a mistake that gets in the way of markets, we submit our own conceptualization of transnational legitimacy. In doing so we suggest a new type of conflicts law which does not seek to overcome socio-economic and political diversity by some substantive transnational regime but responds to diversity with procedural safeguards, thus ensuring space for cooperative problem-solving and the search for fair compromises.

TPP, CETA and TTIP Between Innovation and Consolidation—Resolving Investor–State Disputes under Mega-regionals

The United States concluded in 2015, the Trans-Pacific Partnership (TPP) agreement with 11 other countries and the European Union (EU) concluded a revised version of the Comprehensive Economic Trade Agreement (CETA) with Canada in 2016. The provisions on investor – state dispute settlement (ISDS) of the two agreements could not be more different. While the TPP sticks to the traditional system of investor – state arbitration, CETA now contains a two-layered court system with pre-elected tribunal members. The present contribution seeks to analyse the convergences and differences between the two first concluded mega-regionals in greater detail with a special focus on the CETA court system. It asks, to what extent CETA and TPP address current criticisms on ISDS? What do their approaches mean for the international investment governance? And more specifically for the ongoing negotiations on the Transatlantic Trade and Investment Partnership agreement (TTIP) between the EU and the United States?

TTIP, CETA, TiSA Behind Closed Doors: Transparency in the EU Trade Policy

Transparency in diplomatic negotiations and political discussions is an oxymoron. Rather, secrecy and informality traditionally reign negotiations at the bilateral, regional and multilateral level. Yet transparency ranks among the most basic desiderata in the grammar of global governance and has been regarded as positively related to legitimacy. To date, transparency is not a universal principle: it matters for certain countries more than for others, depending on each country’s constitutional tradition and legal culture. In the case of the EU, transparent trade diplomacy is quintessential for constitutional reasons but also for broader political reasons: in the first case, even if trade matters fall within the exclusive competence of the EU, the EU executive is bound by the Treaty on the Functioning of the European Union (TFEU) to inform the European Parliament, the EU co-legislator, in regular intervals. The underlying rationale is that the Parliament must early on know what the EU negotiator (typically in trade matters, the European Commission) offers and receives in exchange at the negotiating table, as the final deal will be subject to the positive vote of the European Parliament. In the second case, transparency at an early stage is important in order to address public reluctance, suspicion or even opposition regarding a particular trade deal. The present chapter chronicles the quest for and turning moments relating to transparency during the EU trade negotiations with Canada for a Comprehensive Economic Trade Agreement (CETA); with the US for a Transatlantic Trade and Investment Partnership (TTIP); and with a group of WTO Members for a the Trade in Services Agreement (TiSA) at the plurilateral/WTO level. The chapter reviews the existing EU case-law on access to documents and discusses the transition towards an unprecedented level of transparency in the EU trade-related dealings. It concludes with some suggestions to streamline transparency-related efforts.

Perspectives for the World Trade System: From Multilateral Integration to Free Trade Agreements?

The difficulties encountered in multilateral trade negotiations well illustrate the significant obstacles confronting further development of the World Trade System. At the same time, however, Free Trade Agreements (FTAs) become increasingly important. The successful negotiations of the Comprehensive Economic Trade Agreement and the Trans-Pacific Partnership are recent examples of this trend. Will FTAs come to be viewed in the future as the dominant model for international economic integration? This article focuses on the interaction between the World Trade System and FTAs and identifies the prospects for the multilateral system in a constantly changing economic, political and geopolitical environment.

Cultural diversity and free trade: the case of the EU-Canada agreement

This article examines the role assigned to culture in general and to cultural industries and diversity in particular by the Canada-EU Comprehensive Economic Trade Agreement (CETA). Although it pursues further economic liberalization, the arrangement is about much more than trade: its preamble, for instance, contains a reference to the 2005 UNESCO Convention on the Diversity of Cultural Expressions. Nevertheless, the text lacks a general exception clause protecting culture. This paper examines the consolidated CETA text from the perspective of political economy to clarify to what extent this is an opportunity to reconcile rules of free trade with cultural policies aiming to protect and promote the diversity of cultural expressions, especially when the latter derive from cultural industries in both analogue and digital scenarios.

Canada’s Trade Policy: In Search of a Roadmap

This article examines Canada’s trade policy in light of efforts by the Harper government to respond to increasing global competition through the Global Markets Action Plan (2013). Through an analysis of three initiatives, the Canada–Korea Free Trade Agreement (CKFTA), the Canada–European Union Comprehensive Economic Trade Agreement (CETA), and the Trans–Pacific Partnership (TPP), it becomes clear that Canada’s current strategy has only gone part of the way to enact policies that will be most beneficial to its economy. This article shows that Canada’s Global Markets Action Plan, though ambitious, does not correctly prioritize Canada’s interests: it gives too little attention to improving Canada’s strongest trading relationship with its immediate neighbors in North America; it does not comprehensively address the changing nature of trade (which is now focused on trade in value-added products); and finally, its almost singular focus on market access and increasing exports directs attention away from the type of liberalization that would be most beneficial to Canadians, which is opening up the market for imports and dismantling Canada’s supply management system.

Being Virtuous and Prosperous: Sri's Conflicting Goals: Dialectics of Investor Protection Rules (Investor-State Dispute Settlement ISDS) in Canada-European Union: Comprehensive Economic and Trade Agreement (CE-CETA)-Trends, Tensions and Contradictions

The title adopted from Richardson’s article captures a paradigm- a constructive entropy. It seeks to balance democratic deficit in promoting social emancipation, sustainable development and other ethical objectives with economic prosperity and development. This paper trains this ‘conflict’ to the most crucial dynamic of Canada’s external trade: CE-CETA as it includes investor-state dispute settlement (ISDS) mechanism to protect investors mimicking provisions in other International Investment Agreements (IIA). This paradox of advancing immovable force of SRI and promoting unstoppable force of trade (and investor’s) in CE-CETA is the nub of the issue. An attempt is made here to suggest management of the trends, tensions and contradictions between the two and balance by appropriate deference to core ideals of either- Buddha’s golden mean! This paper examines the issue in five parts. Part I walks through the introductory notions and principles of SRI as a paradigm and situating the ‘conflict’ within the CE-CETA with inclusion of ISDS. Part-II describes the global context of external trade and its architecture in the shape of IIAs: performance metrics of IIAs; Part-III discusses the jurisprudence specifically related to IIAs on investment between members of NAFTA and other EU investor-state arbitration (US-Ecuador BIT) and Unified Arab Agreement to representatively demonstrate and demystify phasmophobia created about ‘regulatory chill’ that critics canvass, both for Canada-EU: Comprehensive Economic Trade Agreement and US-EU-TTIP due to ISDS. Part-IV enumerates article-wise cutting edge issues in the CE-CETA text, demonstrating as to the extent of views of critics misplaced relating to ISDS: balancing of investor with the cherished and crucial sustainable goals and objectives for Canada. Part-IV, and in conclusion the paper deals with critique and discussion of the ISDS mechanism and possible workable solution without abandoning SRI goals in light of latest developments and initiatives of United nations Conference on trade and Development (UNCTAD).

Faith, fear, and free trade

In October 2013, Canada and the EU announced the conclusion, in principle, of a comprehensive economic trade agreement (CETA). Canada's prime minister described the agreement as historic, “the biggest deal our country has ever made,” and assured Canadians there would be major economic benefits. Not all Canadians share the prime minister's confidence. Concerns about job loss, affordable health care, farm production, and national sovereignty are central to criticism of the agreement. Why has this free trade agreement, and others before it, elicited a polarized reaction, with the champions and opponents of free trade squaring off against one another? Using the history of global trade and Canadian trade policy since 1945 as a guide, this essay examines the motivations, concerns, assumptions, and meanings that animate debates over free trade in Canada. Faith and fear are central to the way people understand and respond to free trade. This essay also explains how domestic and international factors and interests have shaped free trade since 1945, and how it blends economic, political, and geopolitical considerations.