European Union Free Trade Agreements Research Articles

Sustainable development and the environment in EU and Japanese free trade agreements: embedding anthropocentric narratives

ABSTRACT New generation’ free trade agreements now include ‘Trade and Sustainable Development’ (TSD) chapters designed to improve environmental provisions within overall trading arrangements. The wide-ranging European Union (EU)-Japan agreement of 2018 represents the culmination of a trend towards the greater inclusion of such TSD elements, and, as it covers one-third of global GDP, the significance of this agreement for trading relations cannot be understated. Comparing it with other agreements involving Japan and the EU, I argue that greater attention to sustainable development in trade connections, notwithstanding tangible significant environmental improvements, further embeds an anthropocentric narrative of trade-environment linkages and supports a ‘win–win’ linkage between enhancing economic growth and ensuring environmental protections. Through an eco-centric critique, I seek to challenge the fundamental anthropocentric assumptions underpinning such inclusions and explore the ways in which the language of environmental protection and climate change has been depoliticised by a particular framing of sustainable development.

Competing Regionalisms in the Asia-Pacific? Versatile Sustainable Development Issues in FTAs

The essay explores the inclusion of sustainability commitments in free trade agreements (FTAs) in the Asia-Pacific and the potential differences in their emphases that may reflect “competing regionalisms” in the region. Discussing the geo-economics of cross-border regionalism, the diverse trade agreements are compared as to provisions on sustainable development, and reflected with European Union FTAs. Findings indicate a lack of sustainable development issues in the Regional Comprehensive Economic Partnership and in China’s FTAs with regional neighbors, whereas the Trans-Pacific Partnership, and its successor, the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, have substantial commitments on environmental and labor protection. The results suggest that the role of advanced economies as norm setters in sustainability policies may be challenged by a shift toward other emphases in Asia-Pacific FTAs. This contributes to our understanding of the cross-currents in global trade regime leading to competing regionalisms, and therefore, the limits to multilateralizing sustainability issues.

El Acuerdo de Libre Comercio entre la Unión Europea y Nueva Zelanda: promoviendo una agenda climática global

All recent Free Trade Agreements (FTAs) concluded by the European Union (EU) include chapters on Trade and Sustainable Development (TSD) containing mutual commitments on labour and environmental issues. The environmental provisions refer explicitly to the multilateral agreements that each Party commits to implementing, such as the Paris Agreement on climate change. However, the lack of an effective enforcement mechanism in the event of non-compliance with the TSD provisions has undermined the credibility of sustainability commitments. The EU FTA with New Zealand marks a turning point in this trend, introducing a new model of enforcement system. In regard to climate commitments, in particular, the agreement includes ambitious goals which, along with the new enforcement approach, could be extended to future EU FTAs, making a significant contribution to combating global climate change.

Exporting environmental objectives or erecting trade barriers in recent EU free trade agreements

The European Union (EU) has historically sought to influence environmental policies of other countries through multilateral environmental agreements. Under its 7th Environmental Action Plan and Trade for All strategy it now seeks to extend its environmental policy projection through trade; its recent free trade agreements now contain chapters addressing environment and sustainable development. However, by adopting high environmental standards the EU can also advance its own economic interests suggesting an ambiguous motivation. The recent Korean, Japanese and Canadian FTAs and the Mercosur agreements are examined in order to place the extent of this environmental turn within the context of economic advantage. The finding is that while environmental protection provisions in these FTAs may have environmental benefits, they may also serve EU domestic economic interests. This motivation has implications for new FTA negotiations, such as those with New Zealand and Australia, and now the UK.

Die Zukunft umfassender und gemischter Abkommen der EU nach dem Singapur-Gutachten

The article explores some legal issues regarding comprehensive trade and mixed agreements of the European Union (EU). The concept of mixed agreements is special to the EU legal order and under strain after the opinion 2/15 of the Court of Justice of the European Union of 16 May 2017, in which the Court defined the exclusive competence of the EU for concluding “EU-only agreements” in the context of the common commercial policy. This led to a split-up of trade agreements of the Union into “EU-only agreements” and mixed agreements on investment issues whereas no change of policy had been established for association agreements to date. Besides creating greater legal certainty, some problems remain regarding the to-be-improved acceptance of EU free trade agreements in the Member States. The analysis focuses on the division of powers between the EU and the Member States and its impact on mixed agreements on a political and legal level. It concludes that “mixity” has not been ended by the jurisprudence of the Court of Justice and can still be seen as a useful tool in the process of negotiating and concluding future comprehensive international trade and association agreements.

Externalising Europe’s energy policy in EU Free Trade Agreements: A cognitive dissonance between promoting sustainable development and ensuring security of supply?

It is no secret that while the European Union (EU) has taken up commitments to combat climate change under the United Nations Framework Convention on Climate Change Paris Agreement and its own 2020 and 2030 climate and energy package strategy, the Union continues to be heavily dependent on the import of fossil fuels from abroad. One may even say that this leads to a cognitive dissonance, i.e. the discomfort which ensues if one holds two contradictory values, with respect to the externalisation of the Union’s energy and sustainable development policy. On the one hand, the EU aims to become a global frontrunner in the field of promoting renewable energy and sustainable development. This expresses itself through the inclusion of specific chapters on Trade and Sustainable Development in the EU’s Free Trade Agreements (FTAs) (standard since the 2011 EU-South Korea FTA). On the other, the EU realises that it is imperative to secure the Union’s security of energy supply, still largely guaranteed by fossil fuels. Therefore, the Union in parallel attempts to eliminate discriminatory practices in international fossil fuel trade in its bilateral agreements (e.g. in the EU-Ukraine Deep and Comprehensive Free Trade Agreement). This paper will explore the root causes of this cognitive dissonance and research what elements could contribute to ensuring more coherence in EU external energy policy. The objectives of sustainable development and security of supply are not necessarily contradictory per se. However, clearer delineations between the two objectives are necessary in EU external relations in general, and in the Union’s FTAs more specifically. This also applies to relations between Member States and the Union in this area, as well as to the interactions between the relevant EU institutions tasked with energy, sustainable development and the environment.

The Trade-Labour Nexus: Global Value Chains and Labour Provisions in European Union Free Trade Agreements

Labour standards provisions contained within the European Union’s (EU) free trade agreements (FTAs) are a major iteration of attempts to regulate working conditions in the global economy. This article develops an analysis of how the legal and institutional mechanisms established by these FTAs intersect with global value chain governance dynamics in counoutries with contrasting political economies. The article formulates an original analytical framework to explore how governance arrangements and power relations between lead firms in core markets and suppliers in FTA signatory countries shape and constrain the effectiveness of labour provisions in FTAs. This analysis demonstrates how the common framework of labour provisions in EU trade agreements, when applied in a uniform manner across differentiated political-economic contexts, face serious difficulties in creating meaningful change for workers in global value chains.

Is the WTO Dispute Settlement System a Model for EU FTA Investor-State Disputes?

Is the WTO dispute settlement system (DSS) is a suitable model for investor-state disputes arising under European Union Free Trade Agreements (EU FTAs)? Although previous attempts to replicate the system have failed at the multilateral level, the DSS is highly suitable to the specific nature of the EU. First, the WTO has helped create an integrative system, involving all stakeholders, i.e. disputants, States, and the organization itself. Second, a close analysis of the DSS shows that it is strongly focused on economic cooperation and not merely on litigation. Finally, unlike investment arbitration, the DSS has seemingly preserved the rule of law by allowing appeals. In this respect, the Appellate Body has gradually developed into a ‘rebellious’ judiciary, immune from political considerations. Transferring these key institutional features to the investment sphere would not only constitute structural improvements to the current system but also provide the EU with an instrument of global governance.

A Supply Chain Approach to Trade and Labor Provisions

As labor provisions in trade agreements have become increasingly ubiquitous, there remain questions about whether or not these provisions have been effective in improving working conditions in trading partner countries. Through an analysis of sample labor provisions in United States and European Union free trade agreements, this paper shows that both approaches, albeit using different methods, aim primarily to improve <em>de jure</em> labor law and <em>de facto</em> enforcement of that law by government regulatory institutions. This paper argues that instead, labor provisions ought to be grounded in a supply chain approach. A supply chain approach shifts the focus from impacting <em>de jure</em> and <em>de facto</em> labor law as administered by the state though sanctions or dialogue, and towards context specific, experimental, and coordinated private and public regulatory interventions that operate in key export industries that are implicated in trading partners’ supply chains. It does so in part by recognizing the potential regulatory power of consumer citizenship.

The Evolution of the EU External Trade Policy in Services – CETA, TTIP, and TiSA after Brexit

The conclusion of the Transatlantic Trade and Investment Partnership (TTIP) constitutes a priority and key component of the external trade policy of the European Union (EU). It is also an immediate follow-up to several years of regulatory cooperation between the two global trade powers. In an era of megaregionals, services is the only area where significant negotiating traction exists at the bilateral and multilateral level. However, recent events such as the imminent Brexit and the withdrawal of the USA from the Transpacific Partnership (TPP) cast doubt on the future of trade deals. Even so, services remain a key sector of export interest for the EU and thus completing agreements such as the TTIP or the Trade in Services Agreement (TiSA) is of crucial importance, allowing the EU to create new opportunities for service suppliers but also to reshape the regulatory philosophy governing the future regulation of global trade in services. With respect to TTIP, the EU Commission, backed by the EU executive, has advanced an ambitious agenda and submitted a conditional offer to the US, hoping for further liberalization on the two sides of the Atlantic. Against this backdrop, this article offers a critical account of the EU external trade policy, focusing on the EU’s recent external action with respect to services liberalization. The article advances three theses: first, that such ambitious agreements mark a new era of offensive services strategy which, however, is contained by internal conflicts and disagreements regarding certain still sensitive silos such as audiovisual or public services and Brexit shall exacerbate such internal conflicts in the medium run; second, that megaregionals can be used to accelerate domestic regulatory reform and openness in the service sector; and third, that TiSA will constitute a litmus test for the EU’s commitment to the World Trade Organization (WTO) cause. When appropriate, the article draws parallels with existing EU legislation and case law; other EU Free Trade Agreements such as the recently concluded Comprehensive Economic and Trade Agreement (CETA) with Canada; the General Agreement on Trade in Services (GATS); and TiSA.

The Evolution of the EU External Trade Policy in Services - CETA, TTIP and TiSA after Brexit

The conclusion of the Transatlantic Trade and Investment Partnership (TTIP) constitutes a priority and key component of the external trade policy of the European Union (EU). It is also an immediate follow-up to several years of regulatory cooperation between the two global trade powers. In an era of megaregionals, services is the only area where significant negotiating traction exists at the bilateral and multilateral level. However, recent events such as the imminent Brexit and the withdrawal of the US from the Transpacific Partnership (TPP) cast doubt on the future of trade deals. Even so, services remain a key sector of export interest for the EU and thus completing agreements such as the TTIP or the Trade in Services Agreement (TiSA) is of crucial importance, allowing the EU to create new opportunities for service suppliers but also to reshape the regulatory philosophy governing the future regulation of global trade in services. With respect to TTIP, the EU Commission, backed by the EU executive, has advanced an ambitious agenda and submitted a conditional offer to the US, hoping for further liberalization on the two sides of the Atlantic. Against this backdrop, this article offers a critical account of the EU external trade policy, focusing on the EU’s recent external action with respect to services liberalization. The article advances three theses: first, that such ambitious agreements mark a new era of offensive services strategy which however is contained by internal conflicts and disagreements regarding certain still sensitive silos such as audiovisual or public services – and Brexit shall exacerbate such internal conflicts in the medium run; second, that megaregionals can be used to accelerate domestic regulatory reform and openness in the service sector; and, third, that TiSA will constitute a litmus test for the EU’s commitment to the WTO cause. When appropriate, the article draws parallels with existing EU legislation and case-law; other EU Free Trade Agreements (FTAs) such as the recently concluded Comprehensive Economic and Trade Agreement (CETA) with Canada; the General Agreement on Trade in Services (GATS); and TiSA.

Can labour provisions work beyond the border? Evaluating the effects of EU free trade agreements

AbstractThe European Union (EU) has concluded close to 50 bilateral free trade agreements (FTAs), with around 10 more under negotiation. EU FTAs now include “trade and sustainable development” chapters, which contain labour provisions based on a “promotional” rather than “conditional” approach. In the context of the debate on the purpose and efficacy of the trade–labour linkage, the authors examine the possibilities and limitations of these provisions, drawing attention to the lack of research on their effect “on the ground”. To bridge this gap, they propose a new research agenda for evaluating the effects of labour provisions in EU FTAs.

Negotiating Services Liberalization within TTIP - The EU External Trade Policy at Crossroads

The conclusion of the Transatlantic Trade and Investment Partnership (TTIP) constitutes a priority and key component of the new external trade policy of the European Union (EU) and an immediate follow-up to several years of regulatory cooperation between the two global trade powers. In an era of megaregionals, services in the only area where significant negotiating traction exists at the bilateral and multilateral level. From an EU viewpoint, services is a key sector in these negotiations. As expected, the EU Commission, backed by the EU executive, has advanced an ambitious agenda and conditional offer to the US, hoping for further liberalization on the two sides of the Atlantic. Importantly, these negotiations are expected not only to generate additional liberalization, but should also reshape the regulatory philosophy as far as the regulation of trade in services is concerned. Against this backdrop, this article offers a critical account of the current TTIP negotiations relating to trade in services from an EU perspective. When needed, the article draws parallels with other EU Free Trade Agreements (FTAs) and the General Agreement on Trade in Services (GATS).

Free Movement of Companies under the New EU Free Trade Agreements

The European Union (EU) has recently concluded a number of ambitious Free Trade Agreements (FTAs) that inter alia include the right to make establishments. Based on the agreements concluded with Korea, Singapore and Canada, it is examined to what extent these agreements secure a free movement of companies that is comparable with the free movement of companies that has been achieved within the EU.

EU-Asia Free Trade Agreements as tools for social norm/legislation transfer

Article 21 of the Treaty of Lisbon mandates the European Union (EU) to foster its values (democracy, the rule of law, social rights, gender equality, etc.) in its external relations. The core concern of the EU’s multi-faceted relations with Asia is economic relations with rising markets. EU relations with the region have focused on the facilitation of trade and investment through the negotiation of free trade agreements (FTAs) with a number of Asian partners. EU FTAs are accompanied by a Political Cooperation Agreement (PCA), which links core EU values to trade through the ‘standard clause’, whereby under certain circumstances, human rights’ abuses can trigger a suspension of trade preferences. Using a qualitative case study methodology, and drawing on policy documents and interviews, this paper addresses the question of whether, and how, the EU can balance its internal legal obligations with its economic interests and its partners’ demands. The article provides a legal background of the EU’s obligations in terms of international value promotion. It then reviews EU trade policy strategies and reveals an absence of a concerted approach to the inclusion of values. The article investigates the sources of resistance to EU attempts at linking its trade policy with broader values including social rights with Asian partners. The analysis reveals that Asian resistance is centred on the legalistic approach of the EU rather than the values and suggests that a more effective norm export might be achieved through other means. The article concludes that the EU’s failure to push forward social issues in FTAs ultimately casts serious doubts about the EU’s international ‘actorness’ in the area of social rights.

In This Issue: EU Free Trade Agreements and Constitutional Rights

How are constitutional rights protected or undermined in free trade agreements (FTAs) involving the European Union (EU)? Such rights include the traditional firstgeneration civil and political rights; the secondgeneration social, economic and cultural rights, as well as thirdgeneration rights that include the environment. Over the past decade, there has been a clear increase in the number of FTAs entered into by the EU. In the majority of these agreements, respect for human rights is often presented as an essential element. From the EU’s perspective, focus has always been on using these agreements to foster its normative standing. This entailed a promotion of its core values on human rights and good governance. The critical factor has always been to use these agreements to check excesses of repressive regimes. But given that human rights are regarded as indivisible, there is also a strong desire from critics that greater attention is equally placed on socioeconomic rights. This argument is further stretched in those countries with constitutions that clearly stipulate the pro tection of second and thirdgeneration rights. There are many reasons why rights have been included in EU FTAs. From the EU’s perspective, not only are its normative values extended farther afield through such clauses, but it also signals that commercial policy cannot be conducted in isolation. Rather it is part of a package of tools in foreign affairs that the Union can use. From the perspective of partner countries, embracing such rights may actually be a strategy with which to sell a more burnished image that is attractive to foreign investors and visitors. What is more, some of these countries also embrace the clauses mindful of the salience accorded to human rights in their own national constitutions. The EU is not alone in using such provisions in its FTAs. The United States has also been keen to integrate human rights and soft political provisions in its trade deals as well as preferential schemes such as the one sanctioned under the African Growth and Opportunity Act. The approach used by the EU since the 1990s has been that of carrots and sticks: providing perks to good performers and forfeiting the same to renegades.

Extending the Limits of Protection of Pharmaceutical Patents and Data Outside the EU – Is There a Need to Rebalance?

The European Union (EU) has instituted internal and external measures aimed at protecting and enforcing intellectual property rights. In the area of pharmaceutical patents, the Union has also sought to protect its industries through patent term extension and data exclusivity. Recent EU Free Trade Agreements (FTAs) with developing countries contain chapters on intellectual property that extend patent terms and data exclusivity for pharmaceutical products. Such acts further prolong the lifespan of protection given to existing products and limit generic market entry. This article identifies the issue as one of “cross-pollination” of laws and argues that since similar laws exist in the internal regime of the EU, incorporating them into the EU would not be technically too difficult. However, to an extent this regime is simulated in developing countries, implementation will bring major difficulties to the health sector and economies of these countries. The article thus proposes that developing countries should not be forced to adopt such laws through FTAs, and if they are, there should be the compulsory inclusion of both (1) a clause on transitional arrangements for developing countries specific to intellectual property; and (2) a clause that clearly links the objectives for intellectual property protection and enforcement (in this context, patent term extension and data exclusivity) to balancing between the promotion of technological innovation and access to medicines.

The Social Dimension of the New Generation of EU FTAs with Asia and Latin America: Ambitious Continuation for the Sake of Policy Coherence

This article examines the commitment of the European Union (EU) to advance social goals through the ‘new generation’ of Free Trade Agreements (FTAs) with partner countries in Asia and Latin America. It does so by analysing the positions of the relevant policy actors on the inclusion of social issues in these prospective agreements. The study finds that the EU is pursuing an ambitious social agenda for the future bilateral trade arrangements while building on existing EU initiatives to strengthen the Social Dimension of Globalization (SDG). It will be argued that this high level of social commitment should be attributed to the Commission’s pro-activeness and entrepreneurial ability in rallying the Member States behind the incorporation of social issues in the negotiating mandates. In asking why the Commission is so committed to promoting social justice through the new trade agreements, the article offers three explanations, one referring to the goal of increasing policy coherence in the social-trade nexus, one drawing on the issue of legitimacy and one relating to the pursuit of bureaucratic interests. The article concludes that the EU’s ambitious agenda nevertheless needs to be qualified. The Commission’s attempts to face policy incoherence between the trade and social spheres risk being hampered by a number of internal and external factors, including weak bureaucratic coordination, contradictory policy goals and opposition by the negotiating partners.

Political & Quasi-Adjudicative Dispute Settlement Models in European Union Free Trade Agreements - Is the Quasi-Adjudicative Model a Trend or is it Just Another Model?

In this paper, interpretation and application dispute settlement provisions of European Union (EU) Free Trade Agreements (FTAs) signed between 1963 and 2006 are analysed. This will be through the two models of Dispute Settlement in International Law: the political and adjudicative. Political elements of dispute settlement mechanisms in Public International Law and General Agreement of Tariffs and Trade (GATT) served to establish those of the EU FTAs. Adjudicative and quasi-adjudicative elements of dispute settlement mechanisms of Public International Law and World Trade Organization (WTO) Law were used as parameters to set up those of the EU FTAs. These parameters also helped to define a new and unique hybrid model. The features of this model were found in Agreements with trade issues other than FTAs. It is possible, however, for future FTAs to incorporate them. The hybrid model is based on an adjudicative framework and includes both political and adjudicative elements. In conclusion, it was found that even though WTO Members incorporated adjudicative elements in the Dispute Settlement Understanding (DSU), the EU did not incorporate them bilaterally for a further five years. Furthermore, since the creation of the DSU in 1995, the EU has established more FTAs based on a political model than on a quasi-adjudicative. Consequently, the quasi-adjudicative dispute settlement model has not represented a clear trend in EU FTAs.