EU Trade Agreements Research Articles

Promoting sustainable development or legitimising free trade? Civil society mechanisms in EU trade agreements

This study critically reflects on the involvement of civil society actors in the sustainable development chapters of recent EU trade agreements. It discusses how civil society mechanisms may legitimise the underlying neoliberal orientation of the agreements through co-optation of critical actors. Starting from a critical perspective and drawing on evidence from innovative survey data, qualitative interviews and participatory observations, it concludes that, despite overall criticism, there is no clear evidence of co-optation. While being aware of the risks their participation entail, EU participants take a constructive position. Nevertheless, diverging perspectives between non-profit and business actors risk reinforcing existing power asymmetries.

The Compatibility of Investment Arbitration in eu Trade Agreements with the eu Judicial System

This article explores the legality of investment arbitration in eu trade agreements under eu law. Investor-state dispute settlement (isds), including the Investment Court System, allows foreign investors to challenge eu acts and decisions before investment tribunals and these tribunals may be faced with questions of eu law. Since this system of dispute resolution operates entirely outside the eu judicial framework and rivals with it, the powers of the courts of the Member States and that of the European Court of Justice may be adversely affected. This in turn could affect the uniform interpretation and effectiveness of eu law and the autonomy of the eu legal order.

Mega-Regional Trade Agreements and Post-2015 Climate Protection: Bridging the Gap

2015 is an important year for both climate and trade policy. While in the climate community eyes are set on the cop21 in Paris for a new climate policy framework which would succeed Kyoto, trade negotiators are preparing for the final phases of negotiations on so-called “mega-regional” trade agreements like the tpp, ttip, and ceta. This paper argues that the current momentum should be harnessed to make trade policy part of the “enabling environment” for emission reductions. This would reflect worldwide economic trends with respect to growing markets for low-carbon technologies like renewable energy and energy-efficiency. However, it would also mean a new approach in the relationship between trade and the environment, and a shift of focus from regulatory space to common regulation and targeted trade-liberalization of climate-friendly goods and services. This contribution explores ways in which trade liberalization and climate policy can be effectively linked in eu trade agreements under negotiation, focusing on, i.a., the liberalization of trade in low-carbon goods and services and a regulatory alignment of emissions standards.

Labour Standards in Mega-Regional Trade Agreements: The Case of TPP and TTIP

The insertion of labour concerns into trade arrangements is on the rise. An increasing number of bilateral and regional trade agreements embody labour standards-related provisions and often allow them to be enforced through the agreements’ dispute settlement mechanisms. However, the question as to whether such provisions in fact translate into concrete improvements of workers’ rights is controversial. This issue has gained additional relevance through the negotiations of Mega-Regional Trade Agreements, such as the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP). The present paper analyses how labour standards concerns have been addressed in the TPP and the TTIP negotiations and what practical effects this may entail. It proceeds as follows: Section I provides an overview of existing regulatory approaches regarding labour provisions in trade agreements. Section II turns to the recently concluded negotiations of the TPP as well as to the ongoing TTIP negotiations. It looks at key lines of division that have characterised the negotiations and outlines features that the respective labour provisions contain or are likely to contain. Based on evidence from existing trade agreements, Section III then inquires into what can be expected of the labour provisions in the aforesaid Mega-Regional Trade Agreements in terms of effects on the parties’ labour standards. The final section concludes by suggesting that more innovative approaches regarding the design and implementation of the labour provisions could be explored than has so far been the case. It also notes that the labour provisions, as they currently stand, will hardly be able to ensure that the agreements’ other provisions, including those on trade and investment, do not undermine working and living conditions in the parties’ territories in the midand long-term. 1 Research Fellow, Max Planck Institute for Comparative Public Law and International Law, Heidelberg. The author is grateful to Lorand Bartels, Pablo Lazo Grandi as well as the participants of the Conference hosted at the University of Dresden 23 and 24 October 2014 on “Mega-Regionals and the Future of International Trade and Investment Law” for valuable comments and suggestions. All remaining errors are mine. Parts of the paper draw on earlier work published jointly with Anne Posthuma, in particular Franz Christian Ebert and Anne Posthuma, ‘Rebalancing Globalization: The Role of Labour Provisions in Existing International Trade Arrangements and Development Finance Policies’ in Raymond Torres (ed), World of Work Report 2009. The Global Crisis and Beyond (ILO 2009); Franz Christian Ebert and Anne Posthuma, ‘Labour Provisions in Trade Arrangements: Current Trends and Perspectives’ (2011) IILS Discussion Papers Series 205 accessed 14 November 2015. It also draws on a study which the author carried out for the ILO, published in 2013; ILO, ‘The Social Dimension of Trade Agreements’ accessed 14 November 2015, as well as on Franz Christian Ebert, ‘Labour provisions in EU trade agreements: What potential for channelling labour standards-related capacity building?’ ILR 2016 (forthcoming); advanced draft available at: http://onlinelibrary.wiley.com/doi/10.1111/j.1564-913X.2015.00036.x/abstract. It goes without saying that none of the views expressed in the present paper should be attributed to the ILO. All comments on this work in progress are welcome at ebert@mpil.de.

Las cláusulas de elementos esenciales de los acuerdos comerciales de la UE: ¿Contribuye la política comercial de la UE a la protección de los Derechos Humanos?

<p>Este artículo examina de una manera crítica la política europea de incluir cláusulas de ‘elementos esenciales’ en acuerdos comerciales, como principal medio para la realización del nexo comercio-derechos humano exigido por la obligación de la UE de articular sus relaciones externas para la promoción de sus valores fundamentales. Después de estudiar la anatomía de dichas cláusulas, el artículo se propone analizar las críticas que estas cláusulas han generado en relación con (i) el hecho de que no todos los acuerdos comerciales de la UE contienen estas cláusulas, (ii) su redacción y alcance, y (iii) su evaluación e implementación. El artículo concluirá con una valoración de la efectividad y legitimidad de esta política y de la manera en la que influye sobre la credibilidad del programa normativo de las relaciones exteriores de UE.</p><p><strong>Recibido</strong>: 17.04.2015<strong><br />Aceptado</strong>: 11.06.2015</p>

Geographical Indications Under Recent EU Trade Agreements

In recent years, the EU has increasingly moved towards securing protection of EU-based GIs through bilateral and regional general trade agreements. This article looks at five such agreements, namely those negotiated with South Korea, Colombia and Peru, the Central American countries, Canada, and Georgia. It comes to the conclusion that the EU has largely succeeded in achieving its negotiation objectives, including protecting vast lists of EU-based GIs in the territory of its trading partners, phasing-out certain forms of use of EU GIs, and providing for the co-existence of prior trademarks with the GIs covered by the agreements, among others. However, the article also highlights numerous differences between the agreements, in particular concerning aspects such as the scope of protection granted and the enforcement of GI rights. Moreover, it discusses general issues, such as the lack of direct applicability of the GI protection provided for by the agreements and its implications on the protection of foreign GIs in the EU.

EU Bilateral Trade Agreements and the Surprising Rise of Labour Provisions

Surprisingly, labour provisions in EU bilateral trade agreements have widened and deepened over the past decade. One would have expected the opposite, given the coming to power of centre-right governments in the early 2000s and a stronger liberalization agenda since 2006. This article addresses this rather remarkable development. First of all it dismisses the argument that protectionist motives underlie the stronger social clauses in EU trade agreements. Instead, drawing on the theory of the life-cycle of norms, it suggests that social trade has become an unobjectionable norm within the EU. The article then offers several explanations for why the social-trade nexus has been barely disputed, and indeed has further expanded through subsequent trade arrangements. These include the stronger influence of the European Parliament, path-dependencies stemming from the EU’s previous template, and the need to gain public support in the face of criticism of free trade agreements. Most importantly, it stresses that the framing of core labour rights as part of a broader ‘sustainable development’ agenda has contributed to their unobjectionable status. While this framing has helped to forge a consensus with regard to the social trade agenda, giving equal status to labour and environmental provisions under the sustainable development umbrella might also have adverse consequences for the concept of labour provisions.

Global competition, institutional context and regional production networks: up- and downgrading experiences in Romania’s apparel industry

Regional suppliers still play an important role in the global apparel industry. By studying the experience of Romania's apparel sector, the paper highlights, first, the importance of multiscalar institutional, macro and policy contexts in analyzing the articulation of and up- and downgrading experiences in global production networks. These include the Multi-Fibre Arrangement, EU trade agreements and accession, the global economic crisis, and the specific institutional and policy context of post-Socialism. Second, the paper stresses the existence of diverse, non-linear and uneven up- and downgrading trajectories and of reactive adaptation rather than pro-active firm strategies. This questions the ideal upgrading account often portrayed in chain and network research.

Assessing the Potential Impact of Intellectual Property Standards in EU and US Bilateral Trade Agreements on Compulsory Licensing for Essential Medicines in West African States

∗ LLM University of East London; PhD candidate Queen Mary University of London; Law Lecturer, Centre for Intellectual Property and Energy Development, University of Hertfordshire. 1 The term ‘non-voluntary’ or ‘compulsory licensing’ refers to the practice by a government to authorise itself or third parties to use the subject matter of a patent without the authorisation of the right holder for reasons of public policy. See J. Reichman and C. Hasenzahl, ‘Non-Voluntary Licensing of Patented Inventions: Historical Perspective, Legal Framework under TRIPS, and an Overview of the Practice in Canada and the United States of America’, UNCTAD-ICTSD Project on IPRs and Sustainable Development Series, Issue Paper 5 (2003): 10. 2 J. Reichman, ‘Comment: Compulsory Licensing of Patented Pharmaceutical Inventions: Evaluating the Options’, 37 Journal of Law, Medicine and Ethics 2 (2009): 250, claiming that a threat of compulsory licensing can rein in the prices of selected essential medicines. See M. Kremer, ‘Pharmaceuticals and the Developing World’, 16 The Journal of Economic Perspectives 4 (2009): 77, calling for the use of compulsory licensing of patents as a threat to lower prices in LDCs. See also M. Z. Abbas and S. Riaz, ‘Evolution of the Concept of Compulsory Licensing: A Critical Analysis of Key Developments Before and After TRIPS’, 4 The Academic Research International Journal 2 (2013): 494 explaining that compulsory licensing is an effective costcutting and access-assuring tool at the hands of developing countries and LDCs to obtain affordable medicines. 3 The Application for a Compulsory Licensing No. 1 of 2011 before the Controller General of Patents and the Order: Mumbai-India (Decision on 9 March 2012), available at http://www.ipindia.nic.in/iponew/compulsory_license_12032012.pdf (accessed 12 February 2014). See also The IPAB’s Decision (Order No. 45 of 2013) for further facts of the case (M.P. Nos 74 to 76 of 2012 & 108 of 2012 in OA/35/2012/PT/MUM, 14 September 2012, available at http://www.ipab.tn.nic.in/045–2013.htm (accessed 7 January 2015).

Pushed out the Door, Back in through the Window: The Role of the ILO in EU and US Trade Agreements in Facilitating the Decent Work Agenda

Although the debate on the inclusion of labour provisions in trade agreements seemed to be closed after the multilateral trade negotiations in the late 1990s, it is revived in the current negotiation of the EU–US Transatlantic Trade and Investment Agreement (TTIP). TTIP negotiations are of particular importance in this regard as the agreement is believed to set the norm for future negotiations. This paper examines the evolution of labour provisions in the EU and US trade agreements in the past two decades. It finds that: First, labour provisions are increasingly included in trade agreements of the US and the EU. Second, ILO instruments are the main reference here, and they often include an explicit reference to the decent work agenda. Third, reference to the role of the ILO in the implementation of labour commitments is less explicit, but leaves the door open for involvement in various ways, mainly through technical cooperation activities, monitoring or via a consultative role in dispute settlement mechanisms.The analysis leads to the conclusion that whereas the trade–labour linkage and the role of the ILO in trade may have been pushed out of the multilateral trade system, the discussion revived in the framework of pluri-lateral trade negotiations.

Regulating Services Through Trade Agreements - A Comparative Analysis of Regulatory Disciplines Included in EU and US Free Trade Agreements

Developed countries, led by the EU and the US, have consistently called for ‘deeper integration’ over the course of the past three decades i.e., the convergence of ‘behind-the-border’ or domestic polices and rules such as services, competition, public procurement, intellectual property (IP) and so forth. Following the collapse of the Doha Development Round, the EU and the US have pursued this push for deeper integration by entering into deep and comprehensive free trade agreements (DFTAs) that are comprehensive insofar as they are not limited to tariffs but extend to regulatory trade barriers. More recently, the EU and the US launched negotiations on a Transatlantic Trade and Investment Partnership (TTIP) and a Trade in Services Agreement (TISA), which put tackling barriers resulting from divergences in domestic regulation in the area of services at the very top of the agenda. Should these agreements come to pass, they may well set the template for the rules of international trade and define the core features of domestic services market regulation. This article examines the regulatory disciplines in the area of services included in existing EU and US DCFTAs from a comparative perspective in order to delineate possible similarities and divergences and assess the extent to which these DCFTAs can shed some light into the possible outcome and limitations of future trade negotiations in services. It also discusses the potential impact of such negotiations on developing countries and, more generally, on the multilateral process.

Editorial: Opinion 2/13 – The End for Dispute Settlement in EU Trade and Investment Agreements?

Editorial: Opinion 2/13 – The End for Dispute Settlement in EU Trade and Investment Agreements?

EU Trade Agreements and Their Impacts on Human Rights

The paper examines current sustainability impact assessments (SIAs) of EU trade agreements from a human rights perspective. It explores how the “Guiding Principles on Human Rights Impact Assessments of Trade and Investment Agreements” by Prof. De Schutter, (former) UN Special Rapporteur on the Right of Food, can be put into practice and applied to improve SIA methodology.

The preclusion of direct effect in the recently concluded EU free trade agreements

The EU's FTA network is steadily expanding. All recently concluded FTAs adopt a WTO-like dispute settlement mechanism, and incorporate to varying degrees WTO provisions. Even more remarkably, EU FTAs explicitly restrain the direct effect of their provisions. This comes in contrast to the case law of the ECJ so far, which invariably granted direct effect to provisions of EU's bilateral agreements. The article aims to analyse this shift, which is observed across the spectrum of EU's trade agreements, from development instruments and neighbourhood agreements to pure Global Europe FTAs. It employs their two common features, namely the WTO-like dispute settlement mechanism and WTO incorporation, in order to determine which of the two led decisively to the restriction of their domestic effects. It contends that it is the inextricable FTA/WTO intertwinement that hardly leaves any margin for the EU FTAs to have more far-reaching legal effects than those already accepted for the WTO agreements in the ECJ case law.

The Role of the Court of Justice of the European Union in the Emerging EU Investment Policy

The transfer of an exclusive competence for “foreign direct investment” to the European Union (eu) in the Lisbon Treaty (2009) has raised numerous legal questions and has tasked the eu institutions with developing a policy field almost entirely new to them. One of the matters that requires thorough consideration is the role the Court of Justice of the European Union (cjeu) will enjoy with regard to this new policy, which role it may be given in investment agreements of the eu or to what extent its role may legally be excluded or diminished by iias. The policy documents published so far as well as leaked text of envisaged investment chapters of future eu trade and investment agreements disregard this matter entirely. Nevertheless, the cjeu will play a role on the basis of the provisions of the eu Treaties and it is largely for the Court itself to determine that role.

Integration of Environmental Concerns Into the EU Trade Agreements The Real Stakes of the Transatlantic Trade Negotiations?

The ‘Trade and Environment’ debate is in the centre of attention of the international trade discourses since the 1980s. The EU is involved into this debate from the very outset, and today, it represents a very strong commitment to the real inclusion of environmental concerns into the legal framework of international trade. That means from the perspective of the ongoing negotiation with the US on transatlantic free trade and investment partnership agreement that a successful compromise can be reached only if the striking divergence regarding the integration of the ‘Trade and Environment’ provisions can be reconciled. The premise of the proposed paper is that essentially, four basic concerns are pivotal elements of an ‘environmentally conscious’ trade agreement. First, the agreement has to set down the most important, environmentally relevant principles and objectives and make clear the relationship between these concerns and the principles of a free trade and liberalization. Second, the agreement should also cover substantive provisions, which enables the parties to introduce measures with the intention to achieve environmental objectives. Third, the essential element is also a dispute resolution system, which can effectively reconcile the divergences of the contracting parties regarding the applicability of the environmental provisions of the agreement. Fourth, the agreement should make clear its relationship to the multilateral environmental agreements as well. The main objective of the paper is to examine the positions of the EU and to weigh up its crucial interests in these questions. Finally, the paper will conclude to the possible policy options of the negotiating parties in order to find a way to a mutually acceptable agreement, which would bridge the trade relations of the two continents.

The EU's Human Rights Obligations in Relation to Policies with Extraterritorial Effects

That states can be responsible for the effects of their economic policies in third countries is not controversial. Thanks to a network of international trade agreements, virtually all states are under obligations designed to protect the economic interests of the producers of imported goods and services. And yet the proposition that states should also be responsible for the human rights effects of such policy measures is not universally accepted. Thus, a subsidy that causes injury to the domestic industry of a WTO Member or a market access barrier that negatively affects conditions of competition for imported products can violate trade obligations. But even if those effects on the producers of those products are severe, it is debatable whether they are capable of violating any given human rights obligations. In short, the extent to which human rights obligations apply to policies with extraterritorial effects is still very much an open question. This article considers the extent to which EU law applies to such policies, which is to say EU policies with extraterritorial effects on persons outside of EU territory. Section A discusses the human rights aspects of Article 3(5) and Article 21 of the Treaty on European Union (TEU), which date from the 2009 Lisbon Treaty. Section B looks at the jurisprudence of the EU Court of Justice on EU fundamental rights as these exist as general principles of EU law and in the EU Charter of Fundamental Rights, as influenced by the European Convention on Human Rights (ECHR). Section C discusses the EU’s obligation to comply with its international obligations, including with the human rights clauses found in all EU trade and cooperation agreements and with customary international law. Section D considers the enforceability of these obligations by the EU institutions and individuals. Section E summarises and concludes.

Focus: Labour rights and trade: raising standards for workers?

INTERNATIONAL union rights Page 3 Volume 21 Issue 3 2014 FOCUS ❐ TRADE AGREEMENTS AND THE LABOUR MOVEMENT Labour Rights and Trade: Raising Standards for Workers? Labour rights provisions in trade agreements have become more commonplace JEFFREY S. VOGT is Legal Advisor in the Department for Human and Trade Union Rights with the International Trade Union Confederation in Brussels imposed if a country fails to take the actions recommended by the arbitration panel. The approach taken by the EU in recent agreements is markedly different. While EU trade agreements include somewhat stronger standards than US agreements, EU ‘enforcement’ mechanisms are based entirely on dialogue and contain no dispute mechanism should that fail. The labour provisions in recent EU trade agreements, such as the EU-Korea FTA or the Comprehensive Economic and Trade Agreement (‘CETA’) between the EU and Canada require each party to ‘seek to ensure that those laws and policies provide for and encourage high levels of … labour protection, consistent with the internationally recognised standards or agreements’ and ‘shall strive to continue to improve those laws and policies ’. The concept of ‘labour’ is broader than in the US, as it also refers to the ILO Decent Work Agenda, which also contemplates social protection , social dialogue and job creation. The parties also ‘reaffirm the commitment’ under the 2006 Ministerial Declaration of the UN Economic and Social Council on Full Employment and Decent Work, as well as to commit, in accordance with their membership in the ILO and the ILO Declaration on Fundamental Principles and Rights at Work to ‘respect, promote and realise’ in their laws and practices the principles concerning the ILO fundamental rights. The parties also reaffirm their commitment to effectively enforce those ILO conventions that each party has already ratified and commits to ‘make efforts’ to ratify the fundamental and ‘up-to-date’ conventions. As to implementation and enforcement, the EU-Korea FTA, for example, requires the parties to commit to ‘reviewing, monitoring and assessing the impact of the implementation’ of the agreement. It also requires a civil society forum to be convened each year including representatives from ‘domestic advisory groups’, which include labour representatives. A party may request consultations and parties are to ‘make every attempt to arrive at a mutually satisfactory resolution’. If the party wants to press the matter further, it may request that the Committee on Trade and Sustainable Development be convened to find a resolution. If that fails, a panel of experts may be convened, which will examine the matter and issue a report with recommendations . However, if the party complained against refuses to act, there is no enforcement mechanism under the agreement to compel compliance. Under the CETA, a provision is included to review the effectiveness of the implementation of the trade and labour chapter, including a possible review of the measures for settling disputes. For good reason, trade unions in the US, EU and Canada continue to criticise the labour proI n 1994, the North American Free Trade Agreement (between Canada, Mexico and the United States) entered into force, marking the first ‘free’ trade agreement to include enforceable labour standards in addition to the numerous commercial provisions. The labour side agreement , the North American Agreement on Labour Cooperation (‘NAALC’), was a last-minute deal brokered by the Clinton White House in an effort to bring sceptical Democrats in the US Congress to support the agreement. It did not require countries to raise their labour standards to a common floor, but instead to enforce one’s own laws as they related to a number of principles, which include what are now defined by the International Labour Organisation (‘ILO’) as fundamental labour rights, and to ‘strive’ to improve those laws over time. The enforcement mechanism is also limited and only violations related to occupational safety and health, child labour or minimum wage technical labour standards can be taken all the way through the dispute settlement process. No case has ever advanced beyond the first step, ministerial consultations, though public hearings have been convened to allow the parties to present evidence and establish a record after which a public report is issued with recommendations . The rationale for the NAALC was to attempt to avoid unfair...

Environmental Provisions in American and EU Free Trade Agreements: A Preliminary Comparison and Research Agenda

Environmental provisions are included into bilateral trade agreements in increasingly creative ways. This article offers an initial exploration of the policy and legal dimensions of environmental provisions included in recent bilateral trade agreements concluded by the United States and by the European Union. Based primarily on a coding analysis of the environmental provisions contained in American and EU trade agreements since the mid‐2000s, the article illuminates the variable characteristics of these environmental provisions, including the different approaches of the United States and the EU (punitive versus cooperative) to their implementation. The article pays particular attention to the unprecedented links that these treaties create with multilateral environmental agreements. It concludes with a discussion of avenues for future research, including approaches that are comparative and interdisciplinary in nature.

Human Rights and Sustainable Development Obligations in EU Free Trade Agreements

Since the early 1990s, the EU's trade agreements have included a 'human rights clause' requiring the parties to respect human rights and democratic principles. More recently, beginning with the 2008 EU-Cariforum Economic Partnership Agreement, they have also included 'sustainable development' chapters, which contain obligations to respect labour and environmental standards. This article considers the extent to which, legally, these two sets of provisions give the EU the means of implementing its obligations to ensure that its external activities respect human rights and pursue the objective of promoting sustainable development. It also considers the desirability of these differences in the EU's approach to the human rights and democratic principles, on the one hand, and labour and environmental standards, on the other.