Current Negotiations Research Articles

Africa’s Voice in the Formation, Shaping and Redesign of International Investment Law

Abstract Africa has often been presented as an ‘investment rules taker’, despite its longstanding contribution to the formation and shaping of the international investment regime. The present contribution seeks to analyze why Africa has been perceived as such and attempts to shed light on the active role that African countries have played since their independence in the development of the investment regime and also in the promotion of the ICSID system. The contribution also explores new avenues that are provided through the ‘Africanization’ of international investment law and their impact on the current redesign of the investment regime. It finally suggests options regarding the current negotiations of an Investment Protocol at the level of the African Union and ways to reinforce synergies between ICSID and the African Union.

The Multilateral Investment Court: A Stumbling Block for Comprehensive and Sustainable Investment Law Reform

For the last years, reforming the international investment law regime has been a key priority of the trade agenda of the European Commission. Two important decisions in March 2018 can either be seen as a stepping stone or stumbling block in this regard. On 20 March 2018, the Council authorised negotiations for a treaty establishing a multilateral investment court (MIC). This proposal was yet the latest step in a series of activities aimed at replacing the traditional arbitration system of dispute settlement in investment treaties (Investor-State Dispute Settlement, ISDS) with a treaty-based MIC. The latest development concerns the multilateralization of the Investment Court System leading to a MIC. After lobbying for this approach in various intergovernmental fora, the Commission developed a more concrete proposal over the course of 2016 and the first half of 2017. Last year, the ISDS debate moved into the auspices of UNCITRAL Working Group III. Neither the negotiation mandate nor the UNCITRAL mandate touch upon substantive investment standards or refer to the current debates and negotiations on business and human rights. The negotiations will therefore not address any substantive elements of investment treaties. In all likelihood, they will also not address procedural issues such as counterclaims, participation rights of affected stakeholders, presumption of responsibility or burden of proof. The second important decision was taken two weeks earlier by the Court of Justice of the European Union (CJEU) on 6 March 2018. In its ruling in the case C-284/16 Achmea, the CJEU clarified that investment agreements between EU Member States (so-called intra-EU BITs) that have an ISDS clause violate EU law. It is not quite clear whether the CJEU would also transfer its view to other agreements such as CETA or the planned treaty for a MIC. However, the ruling indicates that any investment agreement providing for dispute settlement procedures in which EU law can be applied or interpreted and which does not ensure a review of this interpretation by the CJEU is in breach of EU law.

Brexit: balance de situación y perspectivas (Brexit: Current Situation and Outlook)

Almost three years on since the Brexit referendum and two since the intense negotiations between the parties began, the failure by the British Parliament to ratify the November 2018 agreement between the UK Government and the other EU governments has led to a situation of great complexity. With only a few days remaining until 29 March 2019, when the Article 50 deadline for withdrawal expires, no consensus plan has emerged yet. Without an alternative plan, a no-deal exit is – excepting postponement – the current default option. This Occasional Paper takes stock of the current situation and outlook for Brexit (i.e. the process of UK withdrawal from the EU) by drawing together a number of studies produced at the Banco de Espana in connection with the regular monitoring of the process and its potential effects on the Spanish economy. After noting where the current negotiations stand, the paper reviews UK economic developments since the surprise result of the referendum was announced in June 2016. It further lays out the medium-term outlook for the British economy, which hinges crucially on both the type of future trade relationship to be agreed between both areas and the degree of disruption caused by the withdrawal process. As regards Spain, the paper analyses several issues related to its trade and financial exposures to the UK and also provides estimates of the potential effects of Brexit on the Spanish economy under various hypothetical scenarios using the MTBE (i.e. the quarterly macroeconometric model of the Spanish Economy regularly used at the Banco de Espana for forecasting and policy analysis). Finally, mention is made of the contingency measures adopted, within their respective remits, by the European Commission and the Spanish Government, in the event of an abrupt no-deal exit.

The Human Rights Responsibility of Corporations – the Limits of Soft Law and why a Treaty Is Needed

This contribution addresses the nexus of business and human rights and the question whether the 2011 United Nations Guiding Principles on Business and Human Rights (UNGP), a soft law instrument, is sufficient to protect victims of corporate human rights abuses. It first defines the regulatory gap between national legislation and transnationally operating business enterprises and details what the current human rights law framework has to say on the issue, focusing on the shortcomings of the UNGP. The contribution then turns to the current negotiations on a legally binding instrument. It details two changes in the content of the draft treaty, that made its adoption more likely: the omission of direct legal liability of corporations and the expansion of the scope. Finally, the author addresses the advantages of a binding treaty.

Digital Journalistic Uses of the Terms “Sacred” and “Trivial”: Online Press Releases on Portrayals of Hindu Deities in the usa

The understanding of what is “sacred” and needs protection from alleged “trivialising” or “profaning” is obviously diverse. Especially in cases of severe dissent this is negotiated in public, including increasingly in digital journalistic contexts.This article discusses media oppositions to an alleged “trivializing” of Hindu deities in the usa. It contextualizes and analyzes with coding techniques press releases from the website of Rajan Zed, president of the Nevada based Universal Society of Hinduism and the Indo-American Leadership Confederation. The article highlights that and how these press releases, each addressing a specific case of a purported trivialization of Kali, are utilized to propagate specific objectives and interpretations of Hinduism. The article presents an analysis of the verbal content of the online press releases, contextualizes this by discussing the subtext of the verbal expressions, and thus exemplifies that and how digital journalistic contexts contribute to current negotiations of religious identity and authority.

What is the Sargasso Sea? The problem of fixing space in a fluid ocean

The political boundaries used to territorialize ocean spaces are often negotiated as largely social relations, with little attention to material aspects. Material aspects of ocean spaces include physical forces, interacting life, and constant transformation. In this paper, we use Steinberg and Peters' (2015) “wet ontology” and concepts of the hydrosphere, liquidity, dynamism, and emergence to reflect on how the Sargasso Sea was located in geographic space through analysis of scientific data that revealed its complex materiality. Drawing from policy documents, white papers, presentations, and 14 semi-structured interviews with scientists, government officials, and NGO representatives, we then trace how the Sargasso Sea Alliance produced the linear boundaries that define the Sargasso Sea as an Ecologically and Biologically Significant Marine Area and, later, as an area for international collaboration on its conservation. Although the data used to locate the Sargasso Sea demonstrated its mobility and complexity, policymaking processes calling for legible boundaries produced a simplified and fixed Sargasso Sea that obscures its “wet” materiality. This ‘fixed’ Sargasso Sea was created, in part, to test the potential of existing high seas governing bodies in the lead-up to current negotiations for an international legally-binding instrument for high seas governance; this case thus demonstrates how the social relations that construct existing understandings of territory in oceans may continue to dictate policy options, even as new, more dynamic management techniques are developed. We conclude with a discussion of emerging governance possibilities that may better address and account for the entangled material and social realities of oceans.

The Eurasian Economic Union and the Integration Process in the Asia Pacific

Since 2015, the Eurasian Economic Commission has become a key agent of Russian external trade policy and the policy of connecting with China’s Silk Road Economic Belt initiative. It has been responsible for all of Russia’s current free trade negotiations, and in the future may encompass wider frames of international economic cooperation. However, because of its short track record, the Eurasian Economic Commission is not very well studied in Russia or abroad. This article analyzes the current international exchanges between the Commission and Asian countries, and attempts to study other formats of cooperation with Asian actors where the Commission can be involved in the future according to its mandate. Our study reveals that bilateral exchanges remain dominant between the EAEU and Asian partners, and a switch to multilateral tracks like EAEU‐ASEAN or EAEU‐RCEP can occur only in the medium‐term future. Both the analysis of open negotiations and of the Commission’s organizational resources prove this hypothesis.

Intellectual Property and the Risks of Fragmentation

The article analyzes the regulation of intellectual property rights in current trade negotiations, particularly the protection of Geographical Indications (GIs) in Free Trade Agreements, within the context of the fragmentation of international economic law. The recognition of foreign GIs through Free Trade Agreements presents a set of conflicts between the protected GIs and other rights. Although Free Trade Agreements provide solutions to these conflicts within their texts, this situation may generate conflicts between GI protections and rights protected under other rules of international economic law. As a result, to the extent that there exist available remedies and dispute settlement mechanisms to claim breaches of those other rights, negotiating States are exposed to the risk of litigation in multiple jurisdictions brought by parties whose economic interests may be affected by the protection of foreign GIs. The existence of conflicts between rules from different areas of international economic law and the potential for contradictory decisions on the lawfulness of a State measure regarding foreign GIs are outcomes that deepen the fragmentation of international law and question the overall coherence of this regime.

Food safety, agro-industries, and China’s international trade: A standard-based approach

Economic sociology views markets as organizations characterized by power relations. In this framework, competition is not only for price or quality, but also for market structures, including norms and standards. Food standards, therefore, are not only public goods or tools to protect domestic markets, but they also aim to redesign the rules of the market and provide a competitive advantage to firms and national industries: they are part of the politicization of science. This article argues that China is participating in this form of competition. Since its WTO membership, it has gradually learnt the rules of globalization and has implemented many global standards to benefit from international trade. In recent years, however, it has assumed a more proactive role in reframing international standards of agro-food markets in general and food safety in particular, despite existing problems in its domestic food markets. Three case studies – milk imports; the diplomatic and trade competition for the implementation of a ractopamine (an additive in pig and cattle feed) standard; and the current negotiations for new international standards for cotton – show how China is using different strategies and methods to redesign the shape of international trade.

“If Carmen Can Analyze Shakespeare, Everybody Can”: Positions, Conflicts, and Negotiations in the Narratives of Latina Pre-Service Teachers

ABSTRACTThis study, focusing on the life stories of three pre-service Latina teachers in the United States, explored how they positioned themselves as learners of English and teachers of Spanish in their oral narratives, and how their past experience as minority students shaped their current professional identity negotiations as language teachers. Positioning analysis of their narrative accounts indicated that these female teachers, throughout their education, felt different or isolated because of their ethnic identity, language background, and socioeconomic class. They negotiated memberships in different communities across settings in their lives. Understanding the conflicts and struggles that they experienced and unique strategies that they used to overcome them will hopefully provide insights for all teachers and teacher educators in linguistically and culturally diverse contexts.

Climate Finance: Too Much on Detail, Too Little on the Big Picture?

At the climate conference in Katowice, Poland, in December 2018 (COP 24), Parties to the Paris Agreement intend to adopt a comprehensive set of decisions that provide details on its implementation, based on the so-called Paris Agreement Work Programme (PAWP). We outline some of the many finance issues to be addressed COP 24 and look more in-depth at two particular issues: the overarching goal regarding finance flows in Article 2(1)(c); and transparency of support. Article 2(1)(c) is a major innovation because it establishes addressing financial flows as one of the three goals of the Paris Agreement. At the same time it is an essential means to achieve the mitigation and adaptation goals. Article 2(1)(c) has a transformational objective with huge potential implications in the real world. Despite its overarching importance, the current negotiations do not address Article 2(1)(c) in the holistic manner it requires. Transparency of support relates to the delivery of information and data on financial and other support within the UNFCCC. The Paris Agreement requires Parties to ‘build on and enhance’ the existing transparency arrangements. The current negotiations are focused mainly on the financial support provided by developed countries, with less time dedicated towards support received and other parts of the bigger picture. If it was more balanced and addressed all aspects of transparency of support, the real-world impact of the transparency framework could be considerable.

Compliance in Transition: Is Facilitative Compliance Finding Its Place in the Paris Climate Regime?

The paper explores the current compliance negotiations under Article 15 of the 2015 Paris Climate Agreement. The paper provides an overview of the current state of the negotiations, and considers ways to conclude the negotiations toward an effective compliance system under the Paris Agreement. In the process, the paper explores key differences and similarities between Paris and Kyoto, and identifies possible lessons from the Kyoto compliance experience.

The European Union and the space-time continuum of investment agreements

The 2009 Lisbon Treaty transferred the competence over Foreign Direct Investment policy from the national to the supranational level. This article analyses the impact of this transfer on the content of international investment agreements and, more broadly, the shape of the investment regime complex. Is the competence shift expected to have an independent impact or simply reproduce and continue existing trends? Exploring these two conjectures through a combination of text analysis, primary materials, and interviews, we are making a Historical Institutionalist argument focusing on the timing and sequencing of international investment negotiations. While the competence shift has allowed the EU to innovate in developing its own approach to negotiating international investment agreements, notably with the proposal to create an Investment Court System, the novelty may be only at the surface as the constraints of past, current, and future negotiations restrict the options available to EU actors – we call this the space-time continuum. The result of this learning-and-reacting process is a new European approach which simultaneously duplicates and innovates and could eventually favour greater centralisation within the investment regime complex.

The European Union and the Space-Time Continuum of Investment Agreements

The 2009 Lisbon Treaty transferred the competence over Foreign Direct Investment (FDI) policy from the national to the supranational level. This article analyses the impact of this transfer on the content of international investment agreements and, more broadly, the shape of the investment regime complex. Is the competence shift expected to have an independent impact or simply reproduce and continue existing trends? Exploring these two conjectures through a combination of text analysis, primary materials, and interviews, we are making a Historical Institutionalist argument focusing on the timing and sequencing of international investment negotiations. While the competence shift has allowed the EU to innovate in developing its own approach to negotiating international investment agreements, notably with the proposal to create an Investment Court System, the novelty may be only at the surface as the constraints of past, current, and future negotiations restrict the options available to EU actors - we call this the space-time continuum. The result of this learning-and-reacting process is a new European approach which simultaneously duplicates and innovates and could eventually favour greater centralization within the investment regime complex.

FUTURE IMAGE OF EUROPE: PERSPECTIVES ON THE EU ENLARGEMENT OF SERBIA

The paper aims to explore different outlooks of the future of the European Union, taking into the account EU enlargement project and current negotiations process with Serbia. The analysis focuses on the perspectives from the officials of the European Commission and the Republic of Serbia, as the key actors in the negotiations process of EU memberships of Serbia, as well as the perceptions of the Serbian citizens. Therefore, the purpose of the paper is to identify the motives and currents key topics in the negotiations process, which could affect the future image of Europe.

Services in the Trans-Pacific Partnership: What Would Be Lost?

As the fate of the Trans-Pacific Partnership (TPP) hangs in balance, an evaluation of what it offers could inform current decisions and shape future negotiations. The TPP’s services component has been hailed as one of the agreement’s major accomplishments. To assess the agreement’s impact on national policy in the major services sectors, we created a new public database. This database reveals that TPP commitments seldom go beyond countries’ applied policies, suggesting the explicit liberalization resulting from the agreement is limited only to a few countries and a few areas. However, the TPP enhances transparency and policy certainty because parties’ services commitments cover more trading partners, more sectors and are in some cases closer to applied policies than their commitments under previous agreements. Furthermore, new TPP rules, including on state-owned enterprises, government procurement and competition policy, could enhance services market access. In particular, the TPP breaks new ground in prohibiting restrictions on international data flows, while at the same time creating unprecedented obligations on all parties to protect consumers from fraud and protect privacy. These dual obligations on importing and exporting countries represent a model for regulatory cooperation that could elicit greater market opening if applied to other areas.

How Do the Changing International Trade Relations Impact on Public Administration?

Seldom has world trade policy been the focus of such controversial public debate as it is today—and it is now accompanied by changes to practical trade policy that are more far reaching than any we’ve seen before. First, there was the formation of the contentious free trade agreements, such as the Comprehensive Economic and Trade Agreement (CETA), Trans-Pacific Partnership (TPP) and Transatlantic Trade and Investment Partnership (TTIP), and the ensuing worldwide protests over the exclusion of the public from the associated negotiations. Then came the surprise announcement from the new US presidency of the intention to step away from the TPP and TTIP—even though the USA had previously campaigned particularly strongly for those agreements. This development is accompanied by a far-reaching stagnation of current multilateral negotiations, as they exist within the framework of the world trade system. These issues all occupy places in the current political discussion around trade liberalisation. However, this contribution goes further, to focus on an equally important issue that is much less acknowledged in the public sphere, and that relates to the interdependence of the regulatory framework for economic integration with civil society, business and the administration. Free trade agreements—such as the World Trade Organization (WTO) Agreement on Trade Facilitation—can be looked on as models of international governance, exerting a considerable influence on the players in the member states. The author argues that business and the administration are then called to the task of devising and implementing appropriate strategies and following up with any necessary adaptations. He demonstrates that, for the stakeholders involved, economic integration simultaneously represents challenge, an intention to change and the opportunity for renewal.

Parliamentary assertion and deep integration: the European parliament in the CETA and TTIP negotiations

Scholars have long viewed parliamentarians as parochial actors having little interest, or incentive to engage, in international diplomacy. Yet, parliaments have recently taken on a very active role in various international negotiations. This article explores the role of the European Parliament (EP) in the European Union (EU)–Canada Comprehensive Economic and Trade Agreement (CETA) and the EU–United States Transatlantic Trade and Investment Partnership (TTIP) negotiations. Drawing on classic institutionalist insights, it develops the concept of parliamentary assertion and explores its usefulness through a combination of comparative and process-tracing analyses. The conclusions are threefold: (1) the EP has asserted its power in international trade matters beyond the simple power of consent; (2) the EP’s search for legitimacy in the EU polity is driving this phenomenon; and (3) this phenomenon is significant beyond the current CETA and TTIP negotiations.

Fairness in the climate negotiations: what explains variation in parties’ expressed conceptions?

ABSTRACTHow to differentiate efforts and obligations fairly between countries has been among the most central and controversial issues in climate negotiations. This article analyses countries’ fairness conceptions as expressed in position documents submitted during negotiations leading to the Paris Agreement. A regression analysis investigates which country characteristics predict relative support for three fundamental fairness principles – Responsibility, Capability and Rights (needs). The most consistent and important explanatory variable turns out to be whether a country is included in Annex I to the United Nations Framework Convention on Climate Change (UNFCCC), which lists developed countries. This finding is compatible with the hypothesis that parties invoke fairness principles with the goal of advancing their own interests: non-Annex I parties wanted this particular scheme of differentiation to be upheld in the Paris Agreement, whereas Annex I parties advocated its removal. Notably, the outcome in Paris omits references to Annex I. However, the Agreement does contain multiple references to ‘developed’ versus ‘developing’ countries, hence introducing a more subtle and ambiguous differentiation than before. Post-Paris, seemingly technical discussions have encountered ‘roadblocks’ that partially derive from how the Agreement resolved the issue of differentiation between developed and developing countries. It therefore appears that negotiators will have to continue to deal with this issue, even though it may take on a new dynamic now that the Annex I division has less force. Looking for pragmatic solutions tailored to each substantive agenda point will be likely more fruitful than discussions at the level of fairness principles aiming for one overarching solution.Policy relevanceArguments supported by reference to fairness principles play an important role in the discourse on international climate cooperation. Understanding how fairness conceptions vary between countries – and what background variables explain this variation – is crucial for understanding the negotiation process and outcomes, and for identifying which institutional arrangements are universally acceptable. This understanding is particularly relevant for current negotiations on the modalities for the ‘global stocktake’ – a process set up to assess collective progress every five years ‘in the light of equity and best available science’.

The Role of Non-Governmental Organizations in the Business and Human Rights Treaty Negotiations

AbstractIn June 2014, the UN Human Rights Council established an intergovernmental working group to elaborate a treaty on business and human rights. In July 2015, the working group held its first session launching the negotiations process—the culmination of a global movement of non-governmental organizations (NGOs) that over the last four decades have called for greater corporate accountability for human rights violations. The advocacy activities of the Treaty Alliance, an alliance of NGOs that supports the development of the treaty, were pivotal to the tabling of the resolution establishing the working group. These organizations now have the opportunity to engage with the negotiations process, both formally and informally, through consultations, advocacy, and lobbying. This article considers the impact NGOs may have in the drafting negotiations of the proposed treaty. It identifies several lobbying and advocacy strategies that were successful in previous international law-making processes and discusses the extent to which they could be applied to the current negotiations. It presents the benefits of an NGO coalition, of formal and informal lobbying strategies, and of the development of a common NGOs and friendly states framework. It analyses the reasons for Western states’ opposition and suggests lobbying strategies that may overcome it. Recognizing the unique subject matter of this treaty, it also focuses on lobbying corporate actors, and explores the complementarity between the Guiding Principles on Business and Human Rights and the treaty and the need for NGOs to support both. The article concludes on the necessity to compromise on essential points if a treaty is ever to emerge.