EU Free Trade Agreements Research Articles

Review of the Book “The Pursuit of Sustainable Agriculture in EU Free Trade Agreements” by Luchino Ferraris

Review of the Book “The Pursuit of Sustainable Agriculture in EU Free Trade Agreements” by Luchino Ferraris

Impacts of regional integration and maritime transport on trade: with special reference to RCEP

Purpose The proposed Regional Comprehensive Economic Partnership (RCEP) will become a large trade agreement in Asia, which has brought together the ten members of Association of Southeast Asian Nations (ASEAN) and five of the neighbors’ countries. Under the trend of globalization, the progress of the transportation industry and regional integration will increase the volume of trade, therefore maritime performance is intrinsically linked to trade. In fact, few studies have examined regional integration in the context of seaborne. This paper aims to use the cluster analysis and Poisson quasi-maximum likelihood (PQML) gravity model to investigate the trading bloc phenomenon and relation between trade and marine transportation. Design/methodology/approach In this paper, hierarchical clustering analysis and tree diagrams are used to identify functional areas characterized by bilateral trade intensity and bilateral liner shipping connectivity indices. Regional reorganizations that have occurred within Asian countries were studied. This study illustrates that these trading blocs have a positive impact on trade when maritime transport, production and trading networks have developed between regions. A gravity model was constructed using worldwide trade data for 2007, 2010 and 2015. The study considered free trade agreement (FTA)/common market (CM) of EU, RCEP and North American Free Trade Agreement (NAFTA) as regional dummies and designed a real trade bloc induction variable. In addition, the study did not use the commonly adopted ordinary least squares (OLS) estimation but used the PQML method to estimate the gravity equation to overcome the problem of a large number of zero trade observations. Preliminary results show that regional integration cannot guarantee the establishment of intraregional trade but depends on the stage of economic development and regional industrial characteristics. Findings The major findings are summarized as follows. Both liner shipping connectivity and logistics performance have significant advantages with positive coefficients in each regression results. The creation of intraregional trade is not guaranteed, depending on the characteristics of the trade and the stage of economic development of the region. For RCEP, the effect created by intra-regional trade is better than the EU. Instead, the “nominal” intra-RCEP trade was significantly below the “real” trading blocs. For RCEP, the effect created by intra-regional trade is better than that of the EU. Instead, “nominal” intra-RCEP trade is much lower than “real” trading blocs. The real trading bloc between East Asia and Taiwan clearly exists, and the bloc phenomenon is becoming more and more significant. This result shows that Taiwan’s trade flow with East Asia is higher than the normal level relationship implied by its corresponding economic and geographical conditions. Originality/value This paper focuses on new empirical work done for this study is on the potential impact on trade. Earlier studies that have discussed and/or provided estimates of the benefits to the RCEP plan from improved transport and supply chain connectivity are cited. Marine transportation performance inherently links to economies of commerce. Few studies have examined regional integration in the context of maritime transportation, which reflects the lack of a mix of trade economists and maritime logistics research in the existing literature. This paper attempts to investigate the trading bloc phenomenon formed by regional integration (such as RCEP) and the relation between trade and marine transportation. With the official entry into force of the RCEP in 2020, it will promote increased trade and demand for logistics and maritime transport services in East Asia.

Let’s Play? An Examination of the ‘Level Playing Field’ in EU Free Trade Agreements

Free Trade Agreements to which the European Union is a party increasingly contain minimum obligations with respect to taxation, subsidies, and labour and environmental standards. Those obligations have been termed, in a highly pervasive and rhetorically effective metaphor, the ‘level playing field’. This article is directly concerned with the concept of the level playing field. Specifically, it examines the level playing field concept vis-a-vis ‘free trade’, how it has been implemented in recent EU FTAs, particularly with respect to labour and environmental standards, why the concept seems to be gaining in influence and authority, and what that might mean for the liberal trading regime.

Indigene Landrechte in Zeiten des Klimawandels und der Verhandlung um das Freihandelsabkommen Mercosur am Beispiel Brasilien

How to assess the issue of indigenous land rights in the face of man-m⁠a⁠d⁠e climate change and Amazon fires? How to classify the EU free trade agreement „Mercosur“ and relevant climate, environmental and indigenous rights? What are legal opportunities for indigenous people(s) on the international, inter-American and EU level, to prevent the loss of land and forests, and to protect themselves from climate change? On the basis of indigenous land and environmental rights in Brazil and reactions to the Amazon fires, environmental regulations of the "Mercosur Pact" as well as concerned human and indigenous rights are discussed. Further, this article deals with relevant inter-American law (individual indigenous land rights) and international law (collective land rights). Environmental and climate law provide legal and political options for indigenous people(s), for instance in Brasil. Negative impacts of climate actions on indigenous peoples, the competition between environmental protection areas and indigenous territories, the inclusion of indigenous knowledge in sustainable environmental protection and the allocation of Global Public Goods are discussed. There are various interactions between climate and biodiversity protection, human rights, indigenous peoples rights, and free trade between the EU and South America. While protecting forests as a carbon sink, negative environmental or social consequences must be avoided. Like trade agreements, environmental standards for the protection of the Brazilian Amazon rain forest should be enforceable. To reduce deforestation and to confine the effects of climate change, indigenous peoples rights have to be strengthened. The free, prior, and informed consent of indigenous peoples to projects that may affect their territories is essential. It requires effective, coordinated solutions to protect human rights and indigenous land rights, and it needs a sustainable preservation of climate and forests - nationally and internationally. A collapse of the Amazon forest ecosystem would have global climate effects. In Brazil, alternatives to deforestation and destruction are: strengthening the rule of law and agro-ecology, and to defend indigenous territories.

The Common Commercial Policy after Opinion 2/15: No Simple Way to Make Life Easier for Free Trade Agreements in the EU

On 16 May 2017, the Court of Justice of the EU (CJEU) delivered a long-awaited opinion on the legal nature of the free trade agreement between the EU and Singapore (Opinion 2/15). This decision was highly anticipated as it was expected to clarify uncertainties of several aspects of the EU Common Commercial Policy (CCP) which has broadened in scope after the Lisbon Treaty. The CJEU’s conclusion on the division of competences and its possible impacts on the CCP immediately sparked a debate within the Union’s institutions about its future direction. In particular, the architecture of EU free trade agreements, the dominant tool of the CCP at the beginning of the 21st century, is now under scrutiny. Trade deals without investment provisions could potentially simplify many steps which now burden the treaty-making process. This paper discusses Opinion 2/15 and its significance for the future development of the CCP. It explores and analyses the implications for shaping the post-Lisbon CCP with regard to two specific areas: investment protection and sustainable development. The paper concludes that a new architecture for EU trade agreements could be further improved as there is a potential to preserve the CCP as both an operational and ambitious trade policy. In this respect, comprehensive FTAs encompassing trade, investment and sustainability deserve a second thought in the EU. Keywords: Common Commercial Policy, free trade agreement, competence, investment protection, sustainable development. This work is licensed under the Creative Commons Attribution − Non-Commercial − No Derivatives 4.0 International License. Suggested citation: O Svoboda, ‘The Common Commercial Policy after Opinion 2/15: No Simple Way to Make Life Easier for Free Trade Agreements in the EU’ (2019) 15 CYELP 189.

Digital Trade in EU FTAs: Are EU FTAs Allowing Cross Border Digital Trade to Reach Its Full Potential?

Digital trade has been increasing in importance as the ways of conducting trade have advanced in tandem with technological progress. In view of the EU’s recent successes in negotiating trade agreements with third countries the question arises as to whether EU Free Trade Agreements (FTAs) cater for digital trade in a way that allows it to reach its full potential. This article attempts to reply to this question by evaluating how digital trade has been tackled in a holistic manner in the EU’s FTAs from the EU-Korea FTA onwards. The results show that even though a lot of progress was made, there is still more to be done. The article identifies the most urgent issue as being that of having trade agreements cater for allowing efficient cross border data flows between the parties to the agreement. It subsequently proposes a next step that could be taken in order to address this issue in a realistic manner taking into consideration the value of data protection.

Transparency and participatory aspects of investor-state dispute settlement in the EU ‘new wave’ trade agreements

AbstractThis article scrutinizes the investment chapters in the new EU Free Trade Agreements from a transparency perspective. The article examines the claims that the dispute settlement mechanisms in the new treaties are sufficiently participatory and more transparent than their predecessors. Procedural standards related to confidentiality of proceedings shall be analysed in the context of existing transparency safeguards in investment arbitration. In addition to procedural guarantees of transparency, the article examines relevant substantive rules affecting participatory aspects of dispute settlement. Furthermore, the article discusses forum-shopping strategies of the parties in the field of investment-related disputes, including internal forum-shopping and parallel proceedings using different procedural mechanisms. In this context, lessons from other fields such as international commercial arbitration related to transparency (in cases in which public interest is present) are highlighted. The proposal for the establishment of an integrated, multilateral court for investment cases is also invoked.

Dispute Settlement in EU Free Trade Agreements with Arab Countries

The dispute settlement mechanism in FTAs is necessary as they provide means to settle disagreements on interpretation or compliance with treaty obligations. The dispute settlement mechanism help ease tensions among FTA parties and maintain healthy relationships among trading partners. The dispute settlement process in the EU association agreements with Tunisia, Israel, Morocco, Jordan, and Egypt is short and similar in drafting. Only one article in each of these association agreements address dispute settlement.

The European Identity Rationale in the EU Free Trade Agreements: Economic rather than Cultural Objectives?

In recent years, we can observe an increase of the EU Free Trade Agreements (FTAs) addressing cultural matters. The focus of the Union seems to lie on the audiovisual services sector, which is excluded by the scope of all these Agreements. This so-called ‘cultural exception’ clause does not apply to other cultural sectors, which are however still regulated in EU FTAs. The regulation takes the form of either commitments and reservations made by the Parties to a specific sector, or cooperative provisions mainly found in the Protocols of Cultural Cooperation supplementing some EU FTAs. Although not explicitly mentioning culture, other EU FTA Chapters, such as Subsidies and Intellectual Property, also entail cultural considerations. Rhetorically, the EU has considered the inclusion of cultural aspects into its FTAs as a tool to protect and promote the European identity and cultural diversity. However, both the negotiations as well as the texts of these Agreements illustrate that the motives behind this exclusion are mainly economic and political.Received: 02 July 2018 Accepted: 16 July 2018 Published online: 27 February 2019

The European Identity Rationale in the EU Free Trade Agreements: Economic rather than Cultural Objectives?

<p>En los últimos años, podemos observar un aumento de los Tratados de Libre Comercio de la UE (TLC) que abordan cuestiones culturales. La Unión presta especial atención al sector audiovisual, que está excluido del ámbito de todos los Tratados. Esta cláusula de “excepción cultural”, no se aplica a otros sectores culturales, que, sin embargo, están regulados por los TLC de la UE. La regulación toma la forma de compromisos y reservas relativas a sectores concretos formuladas por las Partes, o disposiciones cooperativas que se encuentran principalmente en los Protocolos sobre Cooperación Cultural que complementan algunos TLC de la UE. Además, algunos Capítulos de TLC como los Subsidios y la Propiedad Intelectual, aunque no mencionan expresamente a cultura, también implican consideraciones culturales. Retóricamente, la UE considera la inclusión de aspectos culturales en sus TLC como un instrumento para proteger y promover la identidad europea y la diversidad cultural. Sin embargo, tanto las negociaciones como los textos de estos Tratados ilustran que los motivos de esta exclusión son también económicos y políticos.</p><p><strong>Recibido:</strong> 02 julio 2018<br /> <strong>Aceptado: </strong>16 julio 2018<br /> <strong>Publicación en línea: </strong>27 febrero 2019</p>

Mediating Investor-State Disputes in Free Trade Agreements: An Evaluation of the EU’s Proposal

Foreign investment is an important economic driver, and thus typically benefits from substantial legal protection under international investment agreements (IIAs). When a dispute arises between a foreign investor and a State, the main dispute settlement mechanism provided under IIAs is arbitration, a system which has raised controversy both within legal circles and public opinion. Against this background, the EU recently proposed to use mediation more frequently, especially for disputes arising out of the investment chapters of EU free trade agreements. This article argues that this proposal may be beneficial, primarily because it assuages the strict legalism which characterizes this area of the law. Yet, mediation is a subtle process which purports to instil a dialogue between disputants. This article takes the view that this dialogue may, however, be greatly hindered by political factors. It posits that two fundamental elements of mediation theory have been insufficiently considered within the EU’s proposal, namely, the nature of the relationship between the parties, i. e. the asymmetrical relationship between the investor and the State, and the influence that external stakeholders may have on the resolution process. In this respect, the role that the European Commission will play is axiomatic to the efficiency of this mechanism.

Fairness Screening of International Investments as an Instrument of EU External Trade and Investment Governance

In today’s multipolar world economy, the societal values and interests that underpin the European project are not shared and protected by all of the EU’s global economic partners. Economic advantage may entice countries to abandon the pursuit of political, social and economic fairness for purposes of attracting foreign investment. Recent EU free trade agreements, such as CETA, have pioneered limited protection against this risk in the area of basic labour and environmental standards. This paper explores a more ambitious, comprehensive framework for how individual rights associated with basic notions of societal fairness could be protected, not by treaty, but indirectly via multinational enterprises as the agents of globalization. It presents a proposal for a coordinated system of inward and outward investment screening to ensure the protection of such rights under existing international commitments and instruments. The paper outlines the areas of further research essential to rendering such a framework operational.

Withdrawal from the eu and Bilateral Free Trade Agreements

Ambiguity still remains around the legal effects of a Member State’s withdrawal from the eu in relation to the new generation of Free Trade Agreements (‘ftas’), which are concluded as bilateral mixed agreements. Such withdrawal may have secondary implications in relation to the international obligations towards the other party of the ratified agreement. According to article 70(1)(a) of the Vienna Convention on the Law of Treaties (‘ vclt ’), the termination of a treaty under its provision releases the parties from the obligation further to perform the treaty. However, mixed agreements that are signed by both the Member State and the eu may cause complications. The obligation of sincere cooperation could play a large role in respect of the Member State’s compliance with its commitments under the agreement. Indeed, there are many concerns regarding the effect of the withdrawal on the eu and the withdrawing Member State in respect to mixed ftas. Could a withdrawal lead to an automatic termination or renegotiation of a trade agreement? Would it be possible to argue for fundamentally changed circumstances? Or could the principle of continuity in the vclt in the context of succession of states affect the outcome?This contribution aims to clarify the legal situation in regard to bilateral mixed ftas that are ratified or provisionally applied—such as the eu-Canada Comprehensive Economic and Trade Agreement (‘ ceta ’)—in the event of a Member State’s withdrawal from the eu. It considers the Member State’s responsibilities and obligations when the withdrawal has been effectuated. Additionally, it explores the rights of the non-eu party to the agreements, as well as the consequences that the eu might face as a remaining party to the agreement.

Sustainable Development Chapters in the EU Free Trade Agreements: Searching for Effectiveness

The objective of this article is to discuss the current practice related to trade and sustainable development chapters (TSD) in the EU free trade agreements and compare it with the model promoted by the US. The paper provides an analysis of primary and secondary literature on TSD chapters and examines two cases based on the specific EU and US experiences. The major question is whether the EU should follow the US approach in order to strengthen the enforcement mechanism of its TSD chapters. As the case of dispute between US and Guatemala shows, the sanction-based approach has not proved as an adequate tool to address non-compliance with labour and environmental standards. On the contrary, cooperation between parties along with capacity building seems as a more relevant approach when it comes to compliance with international standards. This article argues that main challenges for enforcement of TSD chapters are related to strengthening of civil society participation, cooperation between the Parties and monitoring implementation.

A critique of the extraterritorial obligations of the EU in relation to human rights clauses and social norms in EU free trade agreements

This article examines the nature of the EU’s obligations in relation to human rights and social norms in its free trade agreements (FTAs) with a view to problematising the extent to which such clauses are justiciable and enforceable. While human rights do not fall within the area of exclusive EU competence, it is widely accepted that the EU may be liable for contributing to human rights violations in the context of trade agreements under international law and EU law. Conversely, it will be shown that social norms, including labour standards and principles such as sustainable development and environmental protection, which are increasingly set out in the Trade and Sustainable Development (TSD) chapters of FTAs, raise more complex questions regarding the territorial reach of EU law. It is submitted that EU FTAs are constructed in such a way as to exclude rights with the effect that the extraterritorial obligations of the EU in relation to human rights clauses and social norms are unlikely to be judicially enforceable in practice. However, in spite of the territorial limitations of EU law in relation to human rights clause and social norms, recent developments in the case law of the Court of Justice of the EU (CJEU) suggest that the EU is nevertheless under an obligation to ensure its trade agreements with developing countries are conducted in a ‘development-friendly’ manner. To conclude, this article advances the argument that the obligation to engage in ‘development-friendly’ trade may serve to extend the territorial reach of EU further, albeit within the confines of trade and cooperation agreements.

Labour Standards Provisions in EU Free Trade Agreements: Reflections on the European Commission's Reform Agenda

AbstractLabour standards provisions within the Trade and Sustainable Development (TSD) chapters of EU Free Trade Agreements (FTAs) are presented as a key element of the EU's commitment to a ‘value-based trade agenda’. But criticism of TSD chapters has led the European Commission to commit to improving their implementation and enforcement, creating a critical juncture in the evolution of the EU's trade–labour linkage. This contribution synthesizes findings from academic studies that have examined the effectiveness of labour standards provisions in EU FTAs. It then considers the reform agenda as presented by the European Commission, and explains how some of the proposals could tackle failures identified. However, it also argues that there are various limitations with the Commission's current proposals, and outlines how legal obligations and institutional mechanisms created by trade agreements could better be harnessed to improve working conditions and rights at work around the world.

Delegation to treaty bodies in EU agreements: constitutional constraints and proposals for strengthening the European Parliament

EU Free Trade Agreements joint organs – Comprehensive powers beyond executive implementation – Democratic legitimacy concerns – Establishment of treaty bodies in CETA as a conferral of public powers – Limits to delegation prescribed by EU constitutional law – Mechanisms to strengthen the control of the European Parliament over the treaty bodies’ decision-making

The Registration of Descriptive Terms in International Trade

This contribution aims at showing how the registration of descriptive and generic terms as trade marks or geographical indications creates barriers to legitimate trade. This problem is particularly relevant in the EU, where the registration of foreign language terms as trade marks is allowed, even where these terms are descriptive of the goods or services for which they are registered. The Court of Justice of the European Union has ruled in its Matratzen judgment in 2006 that as long as the average consumer in the country of registration does not understand the meaning of the term, it is not descriptive and therefore can fulfill the distinctiveness function. I argue that trade marks on foreign terms do not comply with the protective function of trade mark law, which is to avoid the monopolization of terms that other competitors may want to use, and hence create barriers to legitimate trade. Similarly, for the area of geographical indications (GIs), the regime for GI protection included in recent EU free trade agreements seeks to protect terms in third countries that are considered generic in those countries. Traders in third countries will then not anymore be able to use the term referring to the type of product they have been using for years or decades to describe such products, which arguably creates barriers to legitimate trade. Third countries and their traders are well advised to make use of the exceptions to the protection of generic terms, which are included in the specific agreements.

Towards a Sustainable World Trade Law? The Commercial Policy of the European Union After Opinion 2/15 CJEU

Opinion 2/15 provides an undisputable exclusive competence to the EU for the inclusion of labour and environmental standards in EU Free Trade Agreements (FTAs). However, most of the possible policies to include sustainable development in world trade law would affect trade clauses of FTAs and World Trade Organization law for which the exclusive competence of the EU was not in doubt (e.g. free movement of goods and services, intellectual property). Accordingly, a holistic approach of the EU considering sustainability issues when negotiating any aspects of international trade treaties is required if sustainable development is to play a role in the future of world trade law. The article highlights potential consequences of Opinion 2/15 for the trade policy of the European Union in three areas: sustainable development clauses, trade negotiations and the participation of the EU in the WTO.

Dispute Settlement for Labour Provisions in EU Free Trade Agreements: Rethinking Current Approaches

While labour provisions have been inserted in a number of EU free trade agreements (FTAs), extant clauses are widely perceived as ineffective. This article argues that there is a need to rethink the dispute settlement mechanisms related to labour provisions if their effectiveness is to be increased. It proceeds in three steps. First, we look at the current state of the art of labour provisions in EU FTAs in terms of legal design and practice and argue that the current arrangements are ill-equipped to foster compliance with labour standards. Second, we explore avenues to enhance the design of FTA labour provisions by reconsidering basic elements of the dispute settlement structure. Examining US FTA labour provisions, we highlight the importance of a formal complaint mechanism, on the one hand, and the availability of economic sanctions, on the other. Based on a review of existing practice, we contend, however, that these elements alone are not sufficient to effectively enforce FTA labour provisions. We argue that for FTA labour provisions to be effective, the current state-to-state model of dispute settlement needs to be complemented by a third-party-state dimension and that, additionally, there are good reasons to consider a third party–third party dispute settlement component. We ground these reflections in experiences with already existing instruments in other areas, namely investor-state dispute settlement and voluntary sustainability standards. Thirdly, we discuss options to better connect the dispute settlement mechanisms of FTA labour provisions to other international instruments for labour standards protection with a view to creating synergies and avoiding fragmentation between the different regimes. The focus here is on the International Labour Organization’s supervisory mechanism and the framework of the OECD Guidelines for Multinational Enterprises.