Europe Day at the World Bank: Nuts and Bolts of EU Trade Policies

Submitted by Margaret M. Kim, JD Candidate, Washington College of Law

The European Union (EU), as a single entity, is currently the largest trading block in the world. However, over the next ten to fifteen years, it is estimated that 90% of world demand will be generated outside of Europe.  This is why the EU has set it a key priority to negotiate agreements with its strategic trading partners, in order to open up market opportunities for its businesses abroad.

LJD Week 2014: Economic Treaties: New Directions in EU Trade Policies

On Wednesday, October 22, 2014, the World Bank Group, led by International Centre for Settlement of Investment Disputes (ICSID), hosted a panel discussion titled, “Economic Treaties: New Directions in EU Trade Policies.”  This session was a part of the “Europe Day”, where the World Bank and its partners explored Europe’s legal, economic and social developments, and deliberated about solutions to its contemporary challenges.  The session was moderated by Anabel Gonzalez, the former Costa Rica’s Foreign Trade Minister, who currently holds a Senior Trade and Competitiveness Directorship at the Bank.  The panel consisted of highly distinguished diplomats and academics, representing diverse perspectives on the EU trade policy.  The speakers were: Mr. Collin Bird (Minister-Counsellor of Canadian Embassy to United States); Prof. Steve Charnovitz, (Professor at George Washington Law School); Prof. Jennifer Hillman (Professor at Georgetown Law School); Damien Levie (Head of Section, EU Delegation to the United States); and, Dan Mullaney (Assistant USTR for Europe and the Middle East).

CETA and TTIP: Ambitious Trade Agreements

The EU has demonstrated ambitious efforts in securing “Mega” trade agreements with its strategic partners.  For example, the EU recently signed the Comprehensive Economic and Trade Agreement (CETA) with Canada,[1] after a long negotiation process.  This makes Canada the first of G-7 countries to sign a trade deal with the EU.  CETA still must be approved by the European Council and the European Parliament, but when approved, the agreement will come into effect 2016, eliminating about 98% of the tariffs between the two parties.  Starting July 2013, the EU also engaged in the Transatlantic Trade and Investment Partnership (TTIP) negotiations with the US.  The two parties have undergone seven rounds of negotiations, the most recent one taking place from September 29 to October 3, 2014. 

This Post discusses four key areas of concerns and challenges emerging in the EU negotiation processes: 1) multi-member nature of the EU Bloc; 2) need for regulatory co-operation; 3) stakeholder participation and transparency; and, 4) the implication of ”mega” trade agreements in the context of multilateralism.

Concerns and Challenges of Negotiation with the EU

1. “28-Mothers-in-Laws”?

With respect to challenges in negotiating with the EU, both Canadian and US representatives discussed the importance of transparency and communication with “28 mothers-in-law”; namely, the 28 member countries of the EU.  While the European Commission—through its Deputy General of Trade—remains the official negotiator, recognizing how many divergent interests drive the negotiation is important for the success of the agreement.  After all, under the Treaty of Lisbon, all trade agreements must receive parliamentary consent, and the Commission must also keep the European Parliament informed of trade negotiations, details of which are “spelt out” in the Framework Agreement between the Parliament and the Commission.  This requires having a nuanced understanding of how the issues play from a country to country or at least those who have expressed their concerns more vocally such as Germany.  As Mr. Bird stated, “The importance of having the member state champions for the agreement was critical.”

2. Regulatory Cooperation and Coherence

Given how wide and deep these trade agreements’ aims are, successful negotiation would require a certain degree of creativity, and regulatory processes must also be streamlined, providing stakeholders with opportunities to participate.  The recognition of international regulatory cooperation is gaining greater attention in academia as well, as reflected by a recent ABA Conference’s adoption of a panel titled, “Regulatory coherence and cooperation under TTIP: charting the Way Forward.”  This study, partly financed by the EU, demonstrates a widening attempt of US and EU administrative lawyers to reconcile regulatory differences[2] rather than foreground distributive consequences and ideological tensions behind broad concepts such as participation and transparency.  In the current TTIP negotiation, the US and the EU both aim to achieve greater regulatory convergence, eliminating unnecessary regulatory disparities, while maintaining high levels of regulatory protection and cooperation that prevail on both sides of the Atlantic.

3. Stakeholder Participation and Transparency

Relatedly, the US representative noted that the concept of stakeholders does not just include Americans, but must be considered in a transatlantic context: it includes both civil societies, NGOs, small and large businesses and member states.  The academia has expressed a concern regarding the level of transparency and publicity in the negotiation process.  Trade agreements are cooperative gains, and can easily be enhanced if the current TTIP negotiators reveal the sources.  This would encourage democratic scrutiny.  In the session, all negotiators on the panel acknowledged that even though the text of TTIP has not been released, efforts to enhance stakeholder participation and transparency in regulatory decisionmaking have been new areas of focus in EU’s recent trade negotiations.

4. Mega FTAs: Undermining multilateralism at the WTO?

The proliferation of bilateral and plurilateral trade agreements have raised the concern of whether these trade agreements pose potential conflicts at a multilateral level.[3]  Most famously, Jagdish Bhagwati, the Columbia University economics professor, has described the “Spaghetti Bowl” effect of overlapping Free Trade Agreements (FTAs) creating different standards, leading to trade diversion.  As stated by Ambassador Julio Lacarte-Muro, Former Deputy Secretary of the GATT at its inception, in a recent remark, this phenomenon illustrates that our global trading system has gone in a “full circle” to pre-GATT Agreement days: where privileged treatment in between certain countries was widespread.

Technically speaking, EU’s FTAs are not aligned with the fundamental WTO principles, as they create trade privileges between EU and its counter party, contrary to the GATT Article 1’s Most-Favoured-Nation (MFN) treatment principle.  However, as Prof. Jennifer Hillman observed, the GATT Article 24 provides an exception for customs union and free-trade areas, allowing for a per se violation, if three pre-conditions are satisfied.[4]  First, elimination of duties and other restriction on substantially all trade. As long as the parties do not leave any sectors out, the preferential trade agreement would be acceptable. Second, the FTAs cannot result in higher duties or more restrictive regulation on the commerce on non-members than before.  If it has the “effect” of raising any other non-members’ standards, that would be unacceptable. Finally, elimination of barriers must be done in a reasonable time.  As Ambassador Lacarte-Muro has further noted, this “loophole” was actually created for European Economic Community in the Uruguay round.   

So far, there are 391 regional agreements, among which 213 are free trade agreements. There are currently 9 (please check) Mega FTAs involving US and EU.  In Prof. Hillman’s words, “everybody is guilty because everybody is doing it.”  In fact, only three countries among the WTO Member states are not involved.  As a matter of policy, any “WTO plus” issues that go beyond the disciplines of the WTO, such as in labour, environment, anti-corruption, State-Owned Enterprises (SOEs), and specific investor-state dispute settlement mechanisms (ISDS), pose greatest concerns.[5] 

           

Beyond EU: Relevance of Its Challenges

        These four challenges in trade negotiations with EU are not unique to EU’s trade agreements; these are phenomena that the international trade community must discuss and debate together, especially in light of the historic Trans-Pacific Partnership negotiation among twelve countries.  Economic Treaties: New Directions in EU Trade Policies was a particularly useful session, as it facilitated an honest dialogue between leaders in diplomacy, academia, and global governance.  The World Bank provided an excellent opportunity for this rich discussion to take place, and for that, I would say the Europe Day was an absolute success.

           

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[1] For a brief overview of why CETA is good for Canada, click here.  For the consolidated text of CETA, click here.

[2] An anecdotal example of such “regulatory differences” between the US and the EU is the recent recall of Fireball Whisky in three European Countries (Sweden, Finland, and Norway (a non-EU country)).  The EU enforces a stricter guideline on recommended levels of propylene glycol, and Fireball shipped its North American formula to Europe, which was found to be out of compliance with European regulations. The Food and Drug Administration (FDA) in the US has “no plans to ban sales of the drink”.

[3] Recall that the World Trade Organization hosted a Public Forum in 2012 addressing this question in greater depth under the title, “Is Multilateralism in Crisis?,” available at http://www.wto.org/english/forums_e/public_forum12_e/public_forum12_e.htm (last visited Oct. 29, 2014).
[4] For services, Article 5 of the General Agreement on Trade in Services (GATS) provides the exemption to the first principle.  See Article V: Economic Integration, General Agreement on Trade in Services, World Trade Organization, available at http://www.wto.org/english/docs_e/legal_e/26-gats_01_e.htm#articleV. 
[5] For detailed discussion on “WTO plus” obligations, see International Law Association, International Trade Law, Conference Report Washington 2014, Int’l L. Assoc., available at: http://www.ila-hq.org/download.cfm/docid/B70C8EC3-1EEA-4152-B2297DEA26732A17.

Gender, Sexuality, and the Changing Development Paradigm at the LJD Week

Submitted by Emelyne Calimoutou, PhD & LLM Candidate, Washington College of Law & Adjua Adjei-Danso 

On Thursday October, 21 at the LJD Week a panel on Gender, Sexuality, and the Changing Development Paradigm brought together as main speakers Kate Bedford, Reader in Law, Kent Law School, Fareda Banda, Professor of Law, University of London, Joseph Vess, Senior Program Officer, Promundo. This interactive discussion was moderated by the World Bank Group Senior Director on Gender Caren Grown, and co-organized by Professor Fernanda G. Nicola, Director of the Program on International Organizations, Law and Diplomacy at the Washington College of Law, American University. This discussion had a particular resonance because it occurred two days after doctor Denis Mukwege from the Democratic Republic of Congo became recipient of the Sakharov prize, Europe's top human rights prize for helping thousands of gang rape victims in the country. Doctor Denis Mukwege set up the Panzi hospital in eastern DR Congo in 1999 to treat women subjected to horrific sexual violence.

Two short video presentations introduced the topic of discussion on how gender and sexuality are treated in the policies of development finance institutions, looking at economic, emotional and feminist perspectives, domestic violence, and male inclusion. Each speaker during this session focused on socio-cultural influences on incidences and opportunities for work on prevention of both gender-based violence and Female Genital Cutting (FGM). The discussion was focused on states with burgeoning and/or fragile peace and the strongest correlation to male acts of violence against women related to wider community legacies of violence from war, as a manifestation of the trauma experienced by men as secondary victims of violence. In addition to socio-cultural influences, lack of enforcement and the economic burden acts of gender-based violence and FGM have on families and national healthcare systems were raised as central themes. The lack of focus on gender violence in the Millennium Development Goals was also mentioned as a concern. Each speaker noted that passive acceptance of acts of gender-based violence and FGM are generally related to socio-cultural practices and continuing influence, and are also coupled with a lack of legal enforcement.  

These discussions highlighted some progress in the area of prevention of violence as well as in reparations for victims. There was a shift in international institutions, which are now more and more willing to finance programs on sexual minorities and recognize a sexual and economic rights. The discussion emphasized on the projects financed by the World Bank such as the Great Lakes Emergency Sexual and Gender Based Violence and Women’s Health Project (US$107 million), which includes the Democratic Republic of Congo (DRC), Rwanda and Burundi. Additionally, it is now common to see interdisciplinary approaches to the elimination of violence against women. Panelists also recognized that there is an enormous amount of normative legal protections regarding violence against women and pointed out the lack of implementation. Mr. Vess talked about a gender-transformative approach to integrate men in the prevention of violence against women especially when post-conflict was presented. Working with men to understand and change their role in the family is instrumental to end the intergenerational legacy of violence against women.

To conclude this conversation the panel emphasized on the fact that while many states have passed laws criminalizing gender-based violence and FGM, the gap in reducing incidences lies in the lack of implementation. According to the panel, weak or nonexistent implementation is partially created by the lack of accountability against leaders who do not make any efforts in ensuring the enforcement of the laws passed; while political capital exists to put such laws on the books, in many countries there is none ensuring the judicial system effectively implements the laws in order to punish current and thereby also deter future incidences of gender-based violence and FGM. From the perspective of one speaker working on the ground (Pia – Nairobi), the World Bank should take on reform of the judicial system in the African context, as was done previously in Latin America. This theme of a move to transformative equality through changing attitudes within the judiciary was echoed by another speaker, who noted that the key to prevention lies in raising voices about the issue and building political will to ensure incremental changes. As one speaker put it, what was once considered non-justiciable because it resided in the realm of a nation’s cultural makeup must now be taken up in judicial systems as acts not tolerated by law. Common to each speaker’s view on actions for change were the themes of identifying champions in government, and active involvement by civil society in order to effect change in cultural practices. 

Europe Day at the LJDW: Judging at the European Court of Justice

Submitted by Emelyne Calimoutou, PhD & 
LLM Candidate, Washington College of Law 

Each year, LJD Week takes an in-depth look at legal, economic and social developments in a particular country or region. The past four years have focused on Brazil, China, India, and Africa. This year, LJD Week will focus on Europe. The day will include an exploration of how we think of “Europe” ranging from the European Union to accession countries, to all of continental Europe.

Subject to contributing partners’ inputs, Europe Day is proposed to include the following four themes:

1.Europe as a contributor to the global development agenda.

2.Addressing poverty and shared prosperity within Europe

3.The ongoing financial crisis in Europe.

4.Migration into and within Europe.

On Wednesday October 22, 2014, Judge Siniša Rodin will give a keynote presentation during the World Bank's European Week on Judging at the European Court of Justice of the European Union which will be live streaming at http://live.worldbank.org/law-justice-development-week-2014. 

Before his presentation at the World Bank, the Washington College of Law and the Program on International Organizations, Law and Diplomacy will have the honor to host a presentation of Judge Siniša Rodin on Judging at the European Court of Justice. 

October 21, 2014
1:30 PM - 3:00 PM
American University Washington College of Law
4801 Massachusetts Avenue, NW, Washington, DC, 20016
Room 600

The function of the European Court of Justice is stated in Article 220 Treaty of Rome; the court must "ensure that in the interpretation and application of the Treaty the law is observed". Provides the judicial safeguards necessary to ensure that the law is observed in the interpretation and application of the Treaties and all of the activities of the Union. 

The European Court of Justice interprets the common regulatory framework and settles disputes on the application of Community law. It can settle disputes between Member States, between EU institutions and Member States, between different EU institutions and between EU institutions and companies or individuals.

Judge Siniša Rodin was appointed judge of the Court of Justice of the European Union following accession of the Republic of Croatia to the European Union as a new Member State. IAfter implementing several needed reforms to access European Union,  Croatia became on the 1 July 2013, the 28th member of the EU. This accession had several positive aspects including to reinforce the stability in the Western Balkans, but also create new opportunities for creation of business and new markets.

Goals from the High Level Panel and Sustainable Development Solutions Network at the LJD Week

Submitted by Emelyne Calimoutou, PhD & 
LLM Candidate, Washington College of Law 

The Law, Justice and Development Week is starting today and will last until October 24, 2014 at the World Bank headquarters in Washington DC. As in previous years, the LJD Week 2014 is co-organized by the Legal Departments of the World Bank Group. The event is delivered in collaboration with the Global Forum on Law, Justice and Development, a collaboration that includes more than 150 global institutions.

The fifteen-year Millennium Development Goals period will be completed at the end of 2015 and it is now time for the UN to address the financing and implementing of the Post-2015 Development Agenda, which is actually the theme for this year’s LJD Week. 

The UN Secretary-General Ban Ki-Moon’s initiatives to promote sustainable development and design and implementation of the Post-2015 Development Agenda relie on three different entities, which proposed three different approaches with different priorities. In fact, in addition to the Working Group on Sustainable Development, the UN Secretary-General Ban Ki-Moon launched the Sustainable Development Solutions Network (SDSN) and announced the 27 members of a High-level Panel to advise on the global development framework beyond 2015, the target date for the Millennium Development Goals (MDGs). 

The Sustainable Development Solutions Network (SDSN) aims at mobilizing scientific and technical expertise from academia, civil society, and the private sector in support of sustainable development problem solving at local, national, and global scales.

The objective of the Sustainable Development Solutions Network (SDSN) is to focus on a limited list of ten priorities and associated goals identified by the Leadership Council of the Sustainable Development Solutions Network. 

The following goals have two main characteristics interconnected to the four dimensions of sustainable development:

Goal 1: End extreme poverty including hunger.

Goal 2: Promote conomic growth and decent jobs within planetary boundaries.

  

Goal 3: Ensure effective learning for all children and youth for life and livelihood.

Goal 4: Achieve gender equality, Social inclusion, and human rights for all.

Goal 5: Achieve health and well-being at all ages.

Goal 6: Improve agriculture systems and raise rural prosperity.

Goal 7: Empower inclusive, productive and resilient cities.

Goal 8: Curb human-induced climate change and ensure sustainable energy.

Goal 9: Secure biodiversity, and ensure good management of water, oceans, forests, and natural resources.

Goal 10: Transform governance and technologies for sustainable development.

The High-Level Panel of eminent persons on the Post-2015 Development Agenda is part of the Secretary-General’s post-2015 initiative mandated by the 2010 MDG Summit to advance the development framework beyond 2015. The work of the Panel is to draw on experience gained in implementing the MDGs, both in terms of results achieved and areas for improvement. The Panel submitted an online report entitled “A New Global Partnership: Eradicate Poverty and Transform Economies through Sustainable Development” containing twelve goals to the Secretary-General on the Post-2015 Development Agenda in May 2013. 

These recommendations lead to draw a universal agenda driven by twelve goals.

Goal 1: End Poverty

Goal 2: Empower girls and women and achieve gender equality  

Goal 3: Provide quality education and lifelong leaving

Goal 4: Ensure healthy lives

Goal 5: Ensure food security and good nutrition

Goal 6: Achieve universal access to water and sanitation

Goal 7: Secure sustainable energy

Goal 8: Create jobs, sustainable livelihoods, and equitable growth

Goal 9: Manage natural resource assets sustainably

Goal 10: Ensure good governance and effective institutions

Goal 11: Ensure stable and peaceful societies

Goal 12: Create a global enabling environment and catalyse long-term finance

The Post-2015 Development agenda will lead to discuss both of these reports. A Post-2015 development agenda proposal will be tabled in September 2014 in the UN General Assembly, and a year of discussion and debate is anticipated to follow. LJD Week 2014, which will provide a timely opportunity to define the role of law and justice in the post-2015 development agenda. 

Website: http://www.worldbank.org/ljdweek2014

Registration: http://www.worldbank.org/ljdweekregister

Agenda: http://www.worldbank.org/ljdweekagenda

Contact: ljdweek@worldbank.org

LJD Week at a Glance

Annually, the World Bank Group hosts Law, Justice, and Development (LJD) week—an interactive week-long conference dedicated to bringing together World Bank Group staff, senior officials from other international financial institutions, international development practitioners, government officials, lawyers, judges, scholars and representatives from civil society. Keynote speakers include prominent members of the international legal community such as Jan Eliasson (Deputy Secreatary General, United Nations); Siniša Rodin (Judge, Court of Justice of the European Union). Live streaming of the opening plenary session led by remarks by Dr. Jim Yong Kim, President and World Bank Group Anne-Marie Leroy, Senior Vice President and World Bank Group General Counsel and with Deputy Secretary-General of the United Nations, Jan Eliasson delivering the keynote address can be found at http://live.worldbank.org/law-justice-development-week-2014

GLOBAL FORUM DAYS

The first two days (Monday 10/20 and Tuesday 10/21) of LJD Week will be devoted to the legal dimensions to the post-2015 development agenda, and will be organized into three parallel sub-themes:

§  Financing  (FIN) the post-2015 development agenda.

§  Implementing (IMP) the post-2015 development agenda.

§  Social and economic equity (SOC) in the post-2015 development agenda.

For detailed information about the various panels and discussion topics within the three sub-themes, please see the complete conference agenda here: https://www.conftool.pro/ljdweek2014/sessions.php

Wednesday (10/22) is Europe Day

Each year, LJD Week takes an in-depth look at legal, economic and social developments in a particular country or region. The past four years have focused on Brazil, China, India, and Africa. This year, LJD Week will focus on Europe. The day will include an interactive format to discuss various pressing issues in the region including strengthening domestic application of international standards on rule of law, fair trial, and judicial independence, crisis management and resolution, anti-corruption, threat of human trafficking to development and human rights, and much more.

Thursday is IFI Day

The annual General Counsel’ Roundtable will bring together the heads of the legal departments of International Financial Institutions (IFIs) to discuss a range of issues related to international development.

            Friday is World Bank Group Day

Friday is specifically reserved for lawyers working in the World Bank Group and will be devoted to issues of interest to them.

This event is open to everyone—practitioners, students, policymakers, activists, etc.

Late registration will be available on-site at 1818 H Street, NW, starting Monday October 20, 2014 at 8:00 AM. For more information, please visit www.worldbank.org/ljdweek2014. Email inquiries may be sent directly to ljdweek@worldbank.org.

Protecting Children From Cyber-crimes

Submitted by Emelyne Calimoutou, PhD & 

LLM Candidate, Washington College of Law  

There are now two days left until Law, Justice and Development (LJD) week which involves bringing together hundreds of international experts to share the legal challenges they encounter in their daily professional life. These discussions represent the perfect forum to define the role of law and justice in the post-2015 development agenda. Information about LJD Week is online at: http://www.worldbank.org/ljdweek2014.

One of the sessions that caught my attention will be held on Tuesday October, 21, where experts will use their knowledge and experience to raise awareness on recent developments in the fight against cyber-crime activities involving children in Latin America and Asia. Among the speakers of the session are Elda Moreno, Special Assistant and Director of the Office of the Special Representative of the United Nations Secretary-General on Violence against Children and Maud de Boer-Buquicchio, United Nations Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography. 

In this event, the panel will use a contextualized approach more tailored to each context to create stronger legislations and policies of prevention against cyber-crime. It will also address the conflicts that arise in the process of fighting cyber-crime such as the need to respect the right privacy of individuals and states’ sovereignty. I hope the panel will also discuss not only topics related to the sanction of cyber-crimes affecting children such as the role of electronic evidence, the training of prosecutors and judge, but also the establishment of child protection measures for child online activities.

The fight against cyber-crime activities affecting children is particularly relevant regarding the World Bank Millennium goal to reduce poverty all over the world. In fact, virtual crime often leads to child abuse and exploitation such as trafficking and sex tourism.  People in poverty are especially vulnerable to these illegal industries. With nearly two billion internet users worldwide criminal groups have now more opportunities to contact new victims to exploit, especially children. The objective of the panel is to discuss the complexities of fighting cyber-crimes through sanction and prevention.