‘Nuff said

Should the system of investor-state dispute settlement (ISDS) be reformed?

/ Andrea M. Ewart, Esq. / Leave a comment

Should the system of investor-state dispute settlement (ISDS) be reformed? That is the question being considered by the United Nations Commission on Trade Law (UNCITRAL).

ISDS provisions are contained in about 3,000 investment treaties and investment chapters of free trade agreements. The provisions permit a foreign investor in the form of a company or individual to bring a claim directly against a State where the investor believes that its investment is being threatened by an action of the State.Foreign-Direct-Investment

FDI and ISDS

FDI can be a valuable tool to exploit resources and build production facilities while creating jobs and infrastructure, particularly in developing countries. Investment agreements aim to create an enabling environment for foreign investors. Among other things, the provisions protect them against expropriation without adequate compensation and guarantee their ability to freely move assets in and out of the country. Sovereign States, on the other hand, need to govern with a multiplicity of interests in mind and their actions can, inadvertently or deliberately, deprive the foreign investor of an intended benefit. ISDS procedures provide the mechanism by which such disputes are resolved.

The most common procedures are drawn from the world of commercial arbitration, used to determine disputes between two commercial parties. They involve the use of an arbitral tribunal which gives equal standing to the investor and the State and whose decisions are binding.

The majority of developing countries rely on foreign direct investment to foster economic growth and development. The overwhelming majority of defendants in arbitral proceedings are the governments of developing and emerging economies. The outcome of ISDS arbitral tribunals can and do impact the ability of governments to develop and implement policy.

Concerns Regarding ISDS

A note by the UNCITRAL Secretariat – “Possible reform of investor-State dispute settlement” and the Report of its Working Group on ISDS summarize expressed concerns regarding ISDS. They include:

  • Inconsistency of arbitral decisions – instances where the host State is sued by different investors on the same issue but with different outcomes from different tribunals;
  • Lengthy duration and extensive cost of ISDS – States that have been sued may not have the resources to adequately defend its policies and actions or to pay arbitral awards;
  • Lack of transparency – States are using public funds and tribunal decisions may be sealed;
  • Lack of an early dismissal mechanism to address unfounded claims;
  • Lack of a mechanism to address counterclaims by respondent States;
  • Heavy reliance on arbitrators from the investor States and who may not understand policy.

Questions at the heart of these concerns address the overall legitimacy of the process. Should a system created to address disputes between two commercial parties be used to resolve policy issues that may impact millions of people? Is it acceptable to exclude domestic investors from the same recourse available to foreign investors?

Proponents of ISDS acknowledge the validity of some of these concerns and say they can be addressed by reforming the current system of ISDS. They also point to the underlying concerns that led to the use of ISDS in the first place – politicization from the use of diplomacy to address dispute and the slow judicial processes in some countries’ domestic legal system.

Concerns are not limited to those expressed by emerging economies. The EU’s submission to the UNCITRAL Working Group highlights systemic issues it believes warrants establishment of a multilateral investment court that would replace the use of arbitral tribunals. A March 2018 ruling of the European Court of Justice concluded that the ISDS clauses in an intra-EU investment treaty were incompatible with EU law.

The Trump Administration has also inserted its perspective on ISDS in the context of the NAFTA re-negotiations. The U.S. Government has consistently expressed its displeasure at being required to abide by the decisions of international panel decisions it finds not to its liking. In August 2017, the Trump Administration floated the idea of opting out of NAFTA ISDS provisions (Chapter 11). Should the US remove itself from the NAFTA ISDS provisions this would be a major departure in US policy and a disappointment for US corporations but a shot in the arm for opponents of ISDS.

Investment Facilitation

UNCITRAL will continue its deliberations. A growing consensus appears to be that while ISDS serves a role the system needs to be reformed. Meanwhile, in December 2017, 70 WTO members agreed to begin discussions to develop the framework for a Multilateral Investment Facilitation Agreement. Discussions will not address ISDS reform, but the purpose will be to minimize the likelihood of disputes by creating a more transparent, efficient, and predictable environment for facilitating cross-border investment.

To the extent that disputes arise because of tension between development-oriented policies of host States and investor goals, conflicts can best be minimized by incorporating a true development dimension into whatever frameworks are used to manage the FDI inflows into developing countries.

(Cross-posted from DevelopTradeLaw blog.)

Trump Trade Agenda

/ Andrea M. Ewart, Esq. / Leave a comment

The Trump trade agenda is in the news. Since January (2018), the Trump Administration has imposed tariffs on steel and aluminum imports, started a trade war with China, and re-negotiated the 6-year old Korea-US Free Trade Agreement (KORUS). The Administration also continues NAFTA re-negotiations and most recently is considering having the U.S. re-join the Trans Pacific Partnership (TPP) Agreement left within three days of Trump taking office.

Trade wars and trade deals appear contradictory. Can we look to some coherent agenda to explain these seemingly disparate actions? The Trump trade agenda is enunciated in its 2018 Trade Agenda Report, sent to Congress in February (2018).

The Trump Trade Agenda rests on the following five pillars:

Supporting US National Security: US trade policy and trade deals must –

  • Help to build a strong American economy, first and foremost;
  • Aggressively defend US national sovereignty in the face of multilateral trade obligations;
  • Respond to economic competitors, notably China;
  • Preserve the US lead in research and technology; and
  • Cooperate with countries that give the US reciprocal treatment and act to defend US interests against those that do not.

Strengthening the U.S. Economy: Key elements of this pillar are –

  • Anticipated benefits to corporations of the new tax regime; and
  • Reduction in regulatory burdens imposed by trade policy;

Negotiating Better Trade Deals:

  • Renegotiate NAFTA, KORUS, and any other trade deals the Administration considers bad for American workers and farmers with a view to –
  • Achieving outcomes that improve U.S. export opportunities and reduce the US trade deficit;
  • Resolving outstanding implementation issues that harm or undermine U.S. interests and U.S. export potential;
  • Rebalancing commitments on tariffs necessary to maintain a general level of reciprocal and mutually advantageous commitments under the agreement;
  • Reducing and eliminating barriers to exports of U.S. made motor vehicles and motor vehicle parts; and
  • Improving other terms to ensure the benefits of the agreement are more directly supportive of job creation in the United States.
  • Negotiate new trade agreements with other countries, noticeably, the United Kingdom and the countries of the Trans-Pacific; and
  • Focus on increasing US agricultural exports.

Enforcing and Defending U.S. Trade Laws:  Key elements of this pillar include –

  • Aggressive use of all tools available under US trade law to address violations;
  • Imposition of available remedies, as appropriate, including suspension of trade agreement concessions, imposition of tariffs, negotiation to remove the offending practice or for compensatory benefits to the United States, fees or restrictions on services; and
  • Investigation of China’s acts, policies and practices related to technology transfer, intellectual property, and innovation.

Strengthening the Multilateral Trading System: Key actions to be taken under this pillar include –

  • Vigorously defend use of US trade laws against complaints brought at the WTO, notably by China, Canada, the EU;
  • Aggressively challenge other countries’ trade laws and policies that negatively impact US exports, notably China, Canada, and India;
  • Address US concerns regarding the WTO Appellate Body, which makes final decisions on disputes brought before the organization;
  • Work with WTO Members who are ready and able to negotiate free, fair and reciprocal agreements commensurate with their status in the global economy;
  • Work to change how the WTO approaches questions of development, so that emerging economies like Brazil, China, India, and South Africa do not receive the same flexibilities as very low-income countries; and
  • Pursue negotiations on agriculture, fisheries subsidies, and digital trade at the WTO.

These pillars weave together a protectionist, America-first agenda that provides context for the seemingly disparate actions of trade wars alongside trade negotiations.

The strong anti-China bias exists because China is undoubtedly playing by its own set of rules, violating the spirit, if not the letter, of international trade law. It is not clear, however, that imposing tariffs is the solution.

More importantly, this protectionist agenda ignores the reality that all countries negotiate from their perceived national interests as well. This results in a balancing of compromises – give and take.

For example, under the re-negotiated Korea FTA, the U.S. got to export more cars, but Korea won partial exemption from the steel tariffs. NAFTA re-negotiations are struggling to address unreasonable US demands. The United Kingdom, which is considered to be in a weak negotiating position as it also negotiates its new trading landscape outside of the EU, probably does not plan to roll over to aggressive US proposals either.

Then, there is the interconnectedness of today’s global markets. US imposition of tariffs on China threatens US manufacturers who rely on imported inputs. China’s retaliation threatens the livelihood of US farmers dependent on exports to the Chinese. Which is why the Administration may be exploring another approach – coming full circle to re-join the rejected Trans-Pacific Partnership (TPP), a 12-nation pact covering 40 percent of the global economy envisioned by the Obama Administration as a multilateral counterweight to China. The other 11 countries have moved on to conclude the Comprehensive & Progressive Agreement for Trans-Pacific Partnership (CPTPP) so this time, the U.S. would be the one negotiating its way back in.

(Crossposted from DevelopTradeLaw.)

Opportunity to Advance a Development Dimension to Investment Facilitation

/ Andrea M. Ewart, Esq. / Leave a comment

The Joint Ministerial Statement on Investment Facilitation for Development adopted on the last day of the 11th World Trade Organization (WTO) Ministerial Conference (for our discussion on the Ministerial click here), signals an opportunity to advance a development dimension to investment facilitation. The Joint Ministerial Statement called for the start of structured discussions with the aim of developing a multilateral framework for facilitating foreign direct investments (FDI).

The 70 WTO Member States that endorsed the Joint Ministerial Statement agreed to begin discussions early in 2018 to develop the elements of the framework to:

  • improve the transparency and predictability of investment measures;
  • streamline and speed up administrative procedures and requirements;
  • enhance international cooperation, information sharing, the exchange of best practices, and relations with relevant stakeholders, including dispute prevention; and
  • seek to clarify the framework’s relationship and interaction with existing WTO provisions, with current investment commitments among Members, and with the investment facilitation work of other international organizations.

The overall goal is to create a more “transparent, efficient, and predictable environment” for facilitating cross-border investment. These outlined elements appear to focus on creating a platform that will address the “resource curse” – the high levels of poverty and inequality present in many oil-rich countries and other developing/emerging economies with the “greatest natural resource endowments”.

The underlying assumption is that the framework is needed to provide greater accountability and transparency. We believe this is only a partial solution to the challenges that developing countries face with regards to FDI. These discussions provide an opportunity to advance a development dimension to investment facilitation by also providing rules of engagement to enhance development-oriented and sustainable outcomes for FDI.

FDI & Developing Countries

The majority of developing countries need foreign direct investment to foster economic growth and development. FDI can be a valuable tool to exploit resources and build production facilities while creating jobs and infrastructure in these countries. At the same time, because for the most part this investment is introduced and controlled by private companies, there is a tension that can, and often does, arise between the goals of private international capital and a country’s development needs.

In an earlier post, we discussed the PBS documentary, The Big Men, which tells the story of the discovery of the first commercial oil field in Ghana’s history. As events unfold, the Texan-based venture capitalists who bore all the financial risk butt heads with a newly-elected government whose officials refuse to endorse the initial agreement allocating to the investors the overwhelming majority of the profits. Juxtaposed with these events is the story and images from Nigeria’s Niger Delta where the “resource curse” is plain for all to see. The dire poverty, environmental degradation and the violence in that oil-rich region add poignancy to the position of the Ghanian officials, even as one wonders about their real motives.

For the Texan-based investors (which included a Ghanian who had initially discovered the resource but lacked the capital to fully exploit it) the issue was couched in the language of risk, adequate return on their investment, as well as respect for the initial contract signed with the Ghanian government. For the Ghanians, the issue was discussed in terms of their need to be able to use the resources located on their sovereign land to properly house, feed, and educate the populace.

The events that unfold in Ghana illustrate the tensions that can exist between the goals of private international capital and a country’s development needs. On the one hand, we have the private venture capitalists who invested where no one else would probably have. Ghana was not known for its oil resources. In return, however, they demanded a hefty return on their investment. But, does any government have the right to sell a country’s birthright to these investors? Yet, of what use to the country is the oil, or the diamond, or the gold left unmined?

How does the framework provide an opportunity to advance a development dimension to investment facilitation?

The Framework’s Development Dimension

The Joint Ministerial Statement recognizes the “dynamic links between investment, trade and development”. The Members also agreed that “facilitating greater developing and least-developed Members’ participation in global investment flows should constitute a core objective of the framework”.

To this end, the Members will seek to assess the needs of developing and least developed country Members to implement the multilateral framework so that technical assistance and capacity building support can be made available to address these identified needs. An integral part of the framework will be the right of Members to meet their policy objectives.

The policy objectives of responsible governments include helping their citizens gain access to jobs, decent housing, roads, education and other social services. Rich-oil countries with energy-deprived citizens is an untenable outcome. So are hotels built with foreign capital and by workers who live in shacks across the street.

Rules are needed to provide guidelines to help honest governments and fair-minded investors determine an equitable distribution of profits derived from exploitation of a country’s resources. These rules should provide tools to help countries negotiate fair deals. These rules should provide a pathway towards more development-oriented and sustainable outcomes for FDI.

These rules can and should be incorporated within the elements of the multilateral framework for facilitating foreign direct investments.

(Cross-posted from DevelopTradeLaw blog)

Dispatch from the Women’s March in Washington

/ Beth Van Schaack / 4 Comments

Wow.  What an experience.

img_9288Like Diane, I am not much of a marcher.  I respect and support direct action, but—as an academic—my contributions to social change tend to involve disseminating the written word more than chanting in the streets.

But this was an event to remember.  I am so thrilled that I was able to be here in img_9250Washington, D.C. (having flown from California in a plane FULL of women) with my mom, sister, daughter, and a number of students and friends from all stages of my life.  Thanks to our cell phones (and notwithstanding the overwhelmed cell towers), we were miraculously able to connect at random points along the way.

img_9287The Rally and March offered a beautiful display of American diversity—all ages, races, orientations, and genders were represented.  There were families with children everywhere—marching, chanting, frolicking, and sharing their own messages (“Grown-ups: WTF??” & “I Am 8 Years Old & I Have Better Manners & Fewer Tantrums”). Although this was billed as “The Woman’s March,” thousands and thousands of supportive men were in attendance, all advocating for women’s rights and inclusiveness (“Men of Quality Do Not Fear Equality”).

Although there were incredible speakers and performers (including Gloria Steinem, Michael Moore, Ashley Judd, andimg_9232 Madonna), this was really about building community and solidarity in the streets.  The roar of the crowds was incredible—and deafening—at times.

As usual, the ubiquitous hand-made signs, all emphasizing social justice themes and the power of resistance, were a highlight. They were full of creative double entendres (“Electile dysfunction”) and clever puns (“Donald Dump” (with poop emoji) – “Trump Puts The ‘Twit’ in Twitter” & “We Shall Overcomb”).  Even Trump’s bizarre appearance did not escape reference (“Orange is the New Blech”).

The messages were pro-immigrant (“To All Immigrants: img_9268Thanks for Choosing America”), pro-diversity, pro-social justice, pro-human rights (“Women Just Want to Have FUNdamental Rights”) and pro-reproductive rights.  Indeed, I’ve never seen so many unique renderings of the female uterus in one place (“Shed Walls, Don’t Build Them”).

Not surprisingly, Trump’s unbridled misogyny and sordid history of sexual assault offered frequent themes (“No Sex Offenders in Public Housing” (with a picture of the White House)).  The pussy references were legion, even over and above the seas of pink knitted hats thanks to the Pussyhat Project.  I was thrilled to wear one knitted for me by one of my students. img_9281

Much of the anger was directed toward Trump (“Dump Trump”), but Mike Pence did not escape the crowd’s ire (“Pence Sucks Too”), particularly as we all marched past the EEOB where the Vice President has his office.  There were also plenty of references to Russia’s intervention in the election (“Nyet my President”) and images of Trump as Putin’s puppet or crybaby (“Make Daddy Vimg_9283ladimir Proud”).  Trump’s campaign slogans and vile comments were all turned inside out (“Make America Kind Again” – “Build a Wall Around Trump & We’ll Pay For It” – “Hate Does Not Make America Great” & “You Haven’t Seen Nasty Yet”).  Even Melania receivedimg_9207 some attention (“Free Melania” & “Melania, Blink Twice if You Need Help”).

Everyone was peaceful and loving. Notwithstanding the finality of yesterday’s inauguration, people were upbeat, strategizing for the coming resistance, and exchanging random acts of kindness, even in hot, crowded metro stops and the throngs on the streets.  We saw two people wearing “Trump” hats, but otherwise this was a crowd full of Hillary Clinton supporters (“Still With Her”).

In fact, there were so many references to Hillary that it was as if this were her inauguration celebration. It should have been (“The People’s President: She Got 2,864,974 More Votes”).

Onward.

‘Nuff said: Sebutinde on women judges, international courts

/ Diane Marie Amann / Leave a comment

sebutinde_hires“I’ve often heard people say, even women say, during the campaign and after, that it’s not a big deal for a women to be on this court. They have no idea what a deal it is. It is a big deal.”

So commented Judge Julia Sebutinde, reflecting on her tenure at the International Court of Justice. She was quoted in “Africa’s most senior female judge: ‘Would these men even listen to me?’, a November profile published in South Africa’s Daily Maverick. Sebutinde has served on the court since 2012, following a lengthy U.N. election process; she is the 4th woman, and the 1st African woman, to be elected in the court’s 70-year history.

Sebutinde began her distinguished career as a lawyer and judge in her native Uganda. She also has served as a judge both on the Special Court for Sierra Leone and on the International Criminal Court. In the Daily Maverick article, she not only speaks of her work at the ICJ, but also offers criticism of current opposition to the ICC. (credit for ICJ photo)

Beyond Trade & Travel: Normalizing US-Cuba Relations

/ Andrea M. Ewart, Esq. / 1 Comment

While much attention has been focused on the changes to ease travel and trade between the United States and Cuba, President Obama’s Policy Directive on US-Cuba Normalization lays out a broader vision for normalization of relations and mutual cooperation between the two neighbors. Issued October 14, 2016 (along with other regulatory changes discussed here) the Directive also lays out six priority objectives for normalization and actions to implement them.obama-castro-handshake

Among other things, the vision laid out by President Obama’s Policy Directive includes – travel to Cuba for U.S. persons that is safe and secure from natural and man-made hazards and regional cooperation with Cuba towards these goals, and a strengthened U.S. position in international systems by removing an irritant from its relationships with allies and partners and gaining support for a rules-based order.

The six U.S. medium-term objectives for US-Cuban policy are to:

  1. Continue high-level and technical engagement;
  2. Continue to encourage people-to-people linkages;
  3. Seek to expand opportunities for U.S. companies to engage with Cuba;
  4. Support further economic reforms by the Cuban government;
  5. Expand dialogue with Cuba in international fora; and
  6. Seek greater Cuban government respect for human rights while recognizing that the United States must leave the future of Cuba up to the Cuban people.

To facilitate the effective implementation of this Policy Directive, U.S. departments and agencies will have the following roles and responsibilities:

National Security Council (NSC) staff will provide ongoing policy coordination and oversight of the implementation of overall Cuba strategy and of the Directive.

The Department of State will continue to be responsible for formulating U.S. policy toward and coordinating relations with Cuba. This includes supporting the operations of Embassy Havana and ensuring it has adequate resources and staffing, issuing visas, refugee processing, promoting educational and cultural exchanges, coordinating democracy programs, and political and economic reporting.

The U.S. Mission to the United Nations (USUN) will coordinate with the State Department to oversee multilateral issues involving Cuba at the United Nations.

The Department of the Treasury is responsible for implementation of the economic embargo restrictions and licensing policies.

 The Department of Commerce will continue to support the development of the Cuban private sector, entrepreneurship, commercial law development, and intellectual property rights as well as environmental protection and storm prediction.

The Department of Defense (DOD) will continue to take steps to expand the defense relationship with Cuba where it will advance U.S. interests, with an initial focus on humanitarian assistance, disaster relief, and counternarcotics in the Caribbean.

The Department of Homeland Security (DHS) will, together with the Department of Justice, engage with the Cuban government to combat terrorism and transnational organized crime.

The Department of Justice (DOJ) will, together with DHS, engage with the Cuban government to combat terrorism and transnational organized crime.

The Small Business Administration (SBA) will support exchanges with the Cuban government in areas of mutual interest, particularly on formalization of small businesses and to spur the growth of new enterprises.

The Office of the United States Trade Representative will provide trade policy coordination in international fora and prepare for negotiations to normalize and expand US-Cuba trade.

The Department of Agriculture (USDA) will work to increase U.S. food and agricultural exports to Cuba.

The Department of Health and Human Services (HHS), in accordance with the June 2016 Memorandum of Understanding between HHS and the Cuban Ministry of Public Health, will collaborate with Cuban counterparts in the areas of public health, research, and biomedical sciences, including collaboration to confront the Zika virus, dengue, chikungunya, and other arboviruses.

The United States Agency for International Development (USAID) will coordinate the U.S. response to natural and man-made environmental disasters.

The Department of Transportation (DOT) will continue to develop air and surface transportation links between the United States and Cuba and provide required regulatory and safety oversight of transportation providers and systems.

The Office of the Director of National Intelligence (DNI) will support efforts to normalize relations with Cuba and seek opportunities for engagement with Cuban counterparts on areas of common interest and information exchange on mutual threats.

The Department of the Interior (DOI) will continue to cooperate with Cuba on marine protected areas and to engage Cuban counterparts to finalize arrangements on wildlife conservation, terrestrial national protected areas, and seismic records.

In issuing the Directive, President Obama stated:

This new directive consolidates and builds upon the changes we’ve already made, promotes transparency by being clear about our policy and intentions, and encourages further engagement between our countries and our people.

This clarity and transparency is important given the long and complicated history of US-Cuba relations that dates back to the 1880s. The Directive is also aimed at ensuring the recent changes in US-Cuba policy outlive the Obama Administration. We can hope that the next Directive will implement the lifting of the outdated and ineffectual embargo, the low point in this history.

Trouble? Remembering the Belfast Agreement in the Brexit Aftermath

/ Kaitlin M. Ball / Leave a comment

Although Brexit resurfaced in the weekend’s newspapers with the revelation that Britain’s exit from the EU could be delayed until 2019, the referendum has largely taken a backseat to other news. Even at the height of the Brexit fervour there was little to no substantive debate on the effect a potential EU exit would have on Northern Ireland (which voted remain by a majority of 56%).

UK Passport

The passport for the United Kingdom of Great Britain and Northern Ireland

This oversight notwithstanding, Northern Ireland’s ties to the European Union are significant and merit consideration, especially in the context of the Belfast/Good Friday Agreement. Europe has paid £1.3 billion to the Northern Irish PEACE programmes alone since 1995. This figure does not include farm subsidies or the economic gain from Northern Ireland’s food and agricultural exports to the EU. Monetary ties aside, I will focus on the proliferation of the European Convention on Human Rights in the Belfast Agreement, the important role it plays in the peace process, and the right to citizenship and self-determination in the context of a post-Brexit border poll. Continue reading →

Trade Agreements & Jobs

/ Andrea M. Ewart, Esq. / Leave a comment

A few weeks ago I treated myself to a massage. As we got to know each other, my masseuse – let’s call her “Mary” — shared that 5 years before she had transitioned from an IT position with a major US corporation located, at that time, in Maryland. After working 14 years with the company, she was made redundant when the company was acquired and moved its operations – to Boston, Massachusetts, U.S A.

“Mary” didn’t lose her job because of a trade agreement, or outsourcing. She lost her job because she was viewed as expendable by a corporation to which she had given 14 years.

Trade agreements are about making it easier to buy and sell goods and services globally. They remove or ease countries’ barriers to trade – import duties, regulations, etc. The rules are often skewed in favor of the richer, more powerful countries. And they are too often shaped by the interests of the powerful corporations at the table that can disenfranchise the poor, wherever they are located.

Trade agreements do make it easier for corporations to export their cultures and values to other countries. The down sides can include a stronger focus on corporate profit over community good. There are potential upsides as well – greater transparency and efficiencies. So, yes, trade agreements can be a mixed bag.

However, when it comes to jobs don’t blame trade or trade agreements. A company that is already pre-disposed to treating its employees as expendable will pack up and move with minimal regard for their years of service or their future with or without these agreements. Blame a corporate culture that says – it’s okay!

Putting the “Woman Question” front and centre: Professor Ruth Rubio Marín

/ Dieneke de Vos / 1 Comment

SOU-Ruth

On 5-7 May 2016, the European University Institute in Florence, Italy, hosted the sixth edition of the State of the Union, a space for high-level reflection on Europe. This year, these reflections revolved around the topic of Women in Europe and the World. There were many amazing and strong women who spoke at this conference, such as Valerie Amos and Patricia Sellers, and the various panels featured fascinating discussions on topics such as women in conflict, women and transition in the Middle East, migration, employment and social affairs, or sexual and reproductive politics. One particular highlight of the conference was the State of the Union address on day 2, given by Professor Ruth Rubio Marín (pictured above), who holds the chair of Constitutional and Public Comparative Law at the European University Institute. Her powerful speech was rewarded with what seemed like a never-ending standing ovation. It was well deserved. I highly recommend listening to the address in full, but here are some highlights.

In her speech, Professor Ruth Rubio Marín highlighted the injustices women and girls in Europe and the World face on a daily basis in a very straight forward manner. For those of us working on issues of gender equality and women’s emancipation and rights, the statistics Professor Rubio Marin provided were all too familiar. One in three women will suffer some form of physical or sexual violence at least once during their lifetime, and for one in five women, this violence occurs at the hands of a current or former partner. Yet, only 14 per cent of women report their most serious incident of intimate partner violence to the police. Women receive only 84 cents to every euro men earn, and the pension gap between women and men is 38 per cent. Working men devote only 9 hours a week to unpaid care and household duties, compared to 26 hours a week for working women. The gap in care responsibilities when high-wage women enter the labour market, is often filled by migrant women, thus perpetuating global (gender) inequalities. Women still account for only 20 per cent of company board members of the largest publicly listed companies, and on average only 28 percent of parliamentarians around the world are women. Androcentric values remain systematically privileged over those traditionally seen as ‘feminine’. As Professor Rubio Marín so rightfully stated: “Oppression does not only happen in cases of a cruel tyrant with bad intentions. Indeed, a well-intentioned liberal society can place system-wide constraints on groups and limit their freedom, relying not only on overt rules but also on unquestioned norms, habits and symbols.”

But what struck me most about her address was her courage and honesty. The personal became the general, the general the personal. When speaking about the by now well-known statistics about the number of women who have suffered some form of physical or sexual violence (1 out of 3), she bravely said: “Ladies and gentlemen, I have never said so publicly, but the time has come to unite and end any form of silence. I was one in the ones out of three.” And when addressing the gender pay gap, she directly addressed the president of the European University Institute, Professor Joseph H.H. Weiler, saying: “The gender pay gap is perpetuated by the generalised practice of lack of transparency around payment by almost every employer, including our beloved European University Institute. Dearest president, perhaps the time has come to change that?”

By drawing on these experiences, Professor Rubio Marín made the numbers we so often hear personal, perhaps making it a little easier for those more unfamiliar with the statistics to grasp their meaning. I could not help but notice that the majority of speakers on the second day of the conference, held at Palazzo Vecchio, were men (14 men versus 13 women spoke on day 2). I hope we can count on all of them in the struggle for gender equality, both in Europe and in the World. Women remain an oppressed group, and it is up to all of us together to change that. To paraphrase Professor Rubio Marín: Now, more than ever, we must put the “Woman Question” front and centre, both in Europe and in the World.

  • Listen to Professor Ruth Rubio Marín’s speech in full
  • Get a written copy of the speech

WTO 10th Ministerial Conference: The Nairobi Package

/ Andrea M. Ewart, Esq. / Leave a comment

The World Trade Organization (WTO) 10th Ministerial Conference was held, for the first time in WTO history, in Africa – Nairobi, Kenya. WTO 10 Ministerial logo

Scheduled for December 15-18, 2015, extending discussions for a fifth day allowed the Ministers to reach consensus on the Nairobi Package.

In the Ministerial Declaration, WTO members reaffirmed the pre-eminence of the WTO as the global forum for negotiating trade rules and for trade governance and pledged to strengthen the multilateral trading system in a manner inclusive of prosperity and welfare for all Members. They also directly addressed the divergence of views on how to conduct the current round of trade negotiations while, essentially, endorsing the very incremental progress made to date.

Launched in 2001, the Doha Development Round was intended to negotiate new rules on a wide range of trade activities as part of a single undertaking – one package of trade rules to which everyone agrees at the end of the Round. However, the single undertaking has eluded the Members who have been unable to even agree on what they mean by the term “Development.” Agriculture trade rules have been at the heart of this impasse.

Director General Azevêdo, beginning with his first Ministerial in this role, has been identifying those portions of the Doha negotiating issues that can be agreed to in mini-packages. The highlight of the Bali Package from the 9th Ministerial in 2013 was the Trade Facilitation Agreement to expedite movement of goods across borders. The Nairobi Package contains Members’ consensus around the sticky Agriculture issues.

Nairobi Package on Agriculture:

Export Competition – This Decision introduces new rules to reform provision of financial support by WTO members for the export of their agricultural products.

  • All export subsidies are to be immediately eliminated by developed countries. Developing country members have until the end of 2018 to do so or in the case of cotton products by January 1, 2017, with exceptions with respect to support for producers of basic agricultural products until the end of 2023. For least developed countries (LDCs) and the thirty-one net-food importing developing countries these exceptions remain in place until the end of 2030. Developing countries are nevertheless required to ensure that their programs are not used to circumvent their obligations under this Decision.

 

  • Financial support in the form of export credits (but not working capital for suppliers), export credit guarantees and insurance programs can be provided for no more than eighteen (18) months and must be self-financing (covering long-term operating costs and losses), charging risk-based premiums. Developed countries must comply by the end of 2017. Developing country Member providers of export financing receive a four-year phase-in period (36-month term as of 2016, 27-month term by 2018) to achieve the 18-month term by the end of 2020. LDCs and net-food importing developing countries can receive payment terms of up to 54 months for procurement of basic foods, with extensions permitted under exceptional circumstances. Existing contracts that do not conform can be allowed to run their course, so long as they are not modified and are notified to the WTO Committee on Agriculture.

 

  • Agricultural Exporting State Trading Enterprises (STEs) must comply with these rules and refrain from using their monopoly powers to displace or impede the exports of other Members. STEs are governmental or non-governmental enterprises authorized to engage in trade with exclusive or special rights that allow them to influence the level or direction of imports or exports. STEs are prevalent in China and also function as marketing boards for specific products in many developing countries.

 

  • While reaffirming commitment to maintain adequate levels of International Food Aid, Members must ensure that such aid is needs-driven, provided as grants only, and is tied neither to the commercial exports or the market development objectives of the donors. Agricultural products provided as food aid are not, as a general rule, to be re-exported and must take into account local market conditions for the same or similar product – procuring locally or regionally where possible. Members are encouraged to provide cash-based food aid. Monetization of food aid – food exported and sold on the local market of the receiving country to support other projects – should be a last resort and be related to delivery of the aid or to address chronic hunger or malnutrition in LDCs and net food importing developing countries.

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