Participation in a New Regulatory Paradigm: Collaboration and Constraint in TTIP's Regulatory Cooperation (original) (raw)
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Regulatory Cooperation under TTIP
2015
verfassungsblog.de /regulatory-cooperation-under-ttip-democracy-on-this-side-of-the-bridge/ A week ago, the EU Commission announced that investor-state dispute settlement (ISDS) will no longer be part of its proposals on TTIP. This was the Commission's response to public contestation and fears that such a mechanism could place unjustified constraints on democratic institutions and on the capacity of states and of the EU to preserve their regulatory autonomy. The change announced by the Commission may be a step in the right direction. But there are other reasons of concern in the current Commission proposals, which have been overshadowed by the discussion on ISDS. Once the agreement is in place, how will decisions be made on the differences between EU and US regulation that could be usefully overcome? On which technical requirements are unnecessarily duplicated? On which standards should remain in place because they contend with health safety in a way that would not be compatible with EU standards? On which areas are too distinct to justify attempts at mutual recognition? Such issues will be decided, in a first instance, via regulatory cooperation between the EU and the US. Thus far there has been little debate on this chapter of TTIP. Yet, regulatory cooperation may remove decision-making further away from parliamentary oversight and impact on existing institutional balances in the EU.
One of the paradoxes of economic globalisation is that ever closer economic ties mean that any significant global agreement would fundamentally reshape the entire picture, which renders highly desired agreements difficult to reach. As a result, regionalisation of trade and investment agreements increases transaction costs business, hence the need for regulatory convergence. Although the easiest route of universal regulation does not appear available any soon, it does not mean that we are doomed to regulatory havoc. There are alternatives, including the trickle-up process under TTIP, whereby parties undertake to review and compare relevant domestic regulation and to cooperate towards development of new rules. Most of all, however, TTIP regulatory cooperation is about broader vision of economics and politics. By adopting the TTIP Chapter on regulatory cooperation the EU and the US hope to acquire an advantage of the market standard-setter, as both negotiating parties undertake to “promote international standards”.
Regulatory Cooperation Under TTIP. If You Can Read This, You’re Too Close.
E. Czarny, A. Kuźnar, J. Menkes (eds.), The Impact of the Transatlantic Trade and Investment Partnership on International Cooperation, Peter Lang, Frankfurt am Main 2017, pp. 55-63., 2017
One of the paradoxes of economic globalisation is that ever closer economic ties mean that any significant global agreement would fundamentally reshape the entire picture, which renders highly desired agreements difficult to reach. As a result, regionalisation of trade and investment agreements increases transaction costs business, hence the need for regulatory convergence. The easiest, and perhaps the most democratic, way would be to adopt a quasi-universal agreement, where at least all the states could voice their concerns. Although the easiest route does not appear available any soon, it does not mean that we are doomed to regulatory havoc. There are at least two alternatives: the trickle-up or the trickledown process. Tha latter could be the case of the Transatlantic Trade and Investment Partnership (TTIP), whereby the parties undertake to review and compare relevant domestic regulation and to cooperate towards development of new rules. Since, largely due to GATT/WTO achievements, tariffs constitute a negligible obstacle to international trade, regulatory cooperation means striking down the other villain that is the non-tariff barriers to trade (NTB). Sceptics fear that it is an instrument of large pan-Atlantic capital, possibly attempting to oust China (as the main challenger to the US domination) and Brazil (which questioned certain cooperation model by rejecting the ISDS). Two fundamental questions rising here, are, what if these voices are wrong, and what if they are right. As for the former, the alternative for failing to conclude the agreement is to see the Atlantic economic influence in the world wane. TTIP provides an opportunity to jump-start Atlantic economy, even though this may materialise at the cost of intra-EU and intra-NAFTA trade. If they are right, gradual loss of international status may still occur; the question is though how shall we manage the process. By adopting the TTIP Chapter on regulatory cooperation the EU and the US hope to acquire an advantage of the market standard-setter, as both negotiating parties undertake to “promote international standards”.
Chapters relating to regulatory coherence or cooperation are likely to be significant features of new preferential trade agreements, including the Trans-Pacific Partnership (TPP). While the potential for harmonisation of standards or institutional cooperation to impact on the regulatory autonomy of treaty parties has been well considered, this article focuses on those elements of regulatory coherence that relate to domestic processes for the development of regulations. It examines whether the adoption of 'good regulatory practices' in accordance with the TPP will help to ensure that measures states enact to protect non-economic interests (such as the environment or public health) are consistent with other key obligations of international trade and investment law. Although many elements of good regulatory practice mirror the criteria used to distinguish legitimate regulatory measures from disguised protectionism, there is no guarantee that a tribunal will come to the same conclusions as those reached during a domestic impact assessment.
Regulatory cooperation and TBT in TTIP
In this paper, we analyse the objectives and basic principles regarding regulatory cooperation in the draft version of the TTIP. We also evaluate what the most far-reaching elements regarding regulatory cooperation are likely to be, as well as identify the limits that are clearly set. We finally underline the aspects that are the most likely to evolve during the negotiations.
The Transatlantic Trade and Investment Partnership (TTIP), the new trade agreement between the EU and the US, has a great ambition: not only if measured by the size of the emergent market, but also the potential spill over of its regulatory standards to the global level. The cooperation between the partners is envisaged on an ongoing basis in a range of fields-such as pharmaceuticals, chemicals, public procurement or motor vehicles. The TTIP differs from the standard trade agreements. Not only by the size of the market it intends to create, or the potential spill over effect of its regulation, but foremost by the level of envisaged institutionalisation. While the negotiations themselves are ambitious in its scope, the most contentious and salient issues will be left as a future agenda to the new institutions of the TTIP, such as the Regulatory Cooperation Council with rule-making capacity. This raises a number of questions. First whether this agreement may be legitimately classified as a conventional international trade instrument at all, not least for the purposes of the procedures that apply to its approval and ratification, pursuant to Article 218 TFEU. Secondly, and more fundamentally, it poses the question as to who sets the normative agenda for these far-reaching negotiations and how this specific agenda reflects EU values and standards as an aspiring democracy. The paper considers who has set the normative agenda in the negotiation of the Transatlantic Trade and Investment Partnership (TTIP), reflecting upon both the actors and processes thereof. We focus on the questions of 1) participation in crafting the TTIP, 2) the role of knowledge in justifying this enterprise, 3) the objectives of the TTIP and 4) the institutions that should underpin it. We argue that the parliamentary legitimation, including approval and information rights, are inadequate in light of the institutionalisation processes which forms the goal of the TTIP.
The Transatlantic Trade and Investment Partnership (TTIP) and Parliamentary Regulatory Cooperation
2014
While searching for information for a study on the envisaged Transatlantic Trade and Investment Partnership (TTIP), I found a lot of brief studies on the Internet, but located neither a comprehensive assessment of the likely consequences of TTIP nor an explicit analysis of the impact on labor. However, once the study was done, I discovered that a number of very interesting papers had been published in the meantime, which together do provide such a comprehensive assessment with a focus on the impact on workers and their organizations. Therefore, I asked the authors of these studies whether they would be interested in contributing an updated version of their studies to a volume on TTIP and its implications for labor. I am very pleased that the authors responded positively and also got permission from the organizations that previously published their studies as working papers. The contribution of Stephan Beck in this volume builds on a study which was published in German in the spring of 2014 with the financial support of the Hans-Böckler-Foundation (Beck / Scherrer, 2014: Das transatlantische Handels-und Investitionsabkommen (TTIP) zwischen der EU und den USA, Arbeitspapier Nr. 303, Hans Böckler Stiftung, Düsseldorf). The contribution of the team led by Werner Raza is taken from a study commissioned by the GUE-NGL group in the European Parliament (ASSESS_TTIP). To avoid overlap with other contributions to this volume, some passages of their study that are not directly related to the assessment of the econometric studies are not included in this volume.
This paper analyses the possible impact of TTIP's so-called Regulatory Cooperation on the implementation of the precautionary principle in the EU. The European Commission argues that regulatory cooperation will not impinge on the application of the precautionary principle because, first, it does not change the legislative framework of precautionary legislation and, second, the right to regulate will be safeguarded by the TTIPs horizontal chapters. In this paper I argue, however, that these guarantees are insufficient. Given the methodological and institutional constraints presented by the TTIP's institutional design, in the longer run regulatory cooperation will undermine the precautionary approach to regulation in the EU.