Marc, Yes, that's an excellent point. The US companies (and government) should be given an opportunity to restore trust in their ability to protect privacy.

Thanks, Ben. I'm going to say more about all this soon in a post about the ORC survey. For now, let me just note the following: My sense is that the COOL measure examined by the panel and the Appellate Body is a lot more complex than what I was suggesting, and imposes significant costs as a result.

To answer my own question, there is some survey data here: http://www.consumerfed.org/pdfs/CFA-COOL-poll-press-release-May-2013.pdf As is often the case, they didn't ask the questions I'd want them to ask. I'll discuss this in a future post.

AK, Given the lack of clarity regarding various WTO provisions, I don't think we can say that with too much certainty. Also, a lot depends on the language of a specific EU measure in this area. It's hard to say in the abstract.

Ben, No offense intended. Just trying to liven up the sometimes dreary and technical world of trade law! So let me ask you two questions: 1. What about a labelling measure that required a general statement along the lines of "processed in Countries X, Y or Z" on all meat products, simply listing all the countries where a step in the production process might have taken place. The processors would have to know generally where the animals they use came from, but wouldn't have to know where specific pieces of meat originated. So a processor who uses only Canadian and American cattle could just indicate "processed in Canada and/or the United States" on every product. Would that be good enough? 2. What would you think of a Canadian law that required labelling in a way that was intended to encourage Canadians to buy more Canadian meat and less American meat, and in fact had this effect?

Julia, Many people who follow this blog could probably give a better answer than I can. But I'll speculate anyway: The money has gone to new buildings (dorms, classrooms, cafeterias, etc.). Simon

Perry, Those are all very good points you make! I confess that I didn't put too much thought into the post. I just get annoyed by the argument that treaties like this one (and I heard the same thing with the disability rights treaty last year) will help American business. That may be true, but it seems to me that supporters should be careful about putting that in print. It could rub some other countries the wrong way.

Also, note that with trade agreements, there is mutual trade liberalization. With the UN Treaty, in relation to international competition aspects, it seems to be purely about helping "us" at the expense of "them".

Perry, I suppose that different people have different views on the purpose of trade agreements. And of course, the agreements probably reflect multiple purposes. But the purpose that I would like to see play the biggest role in trade agreements is increasing the international competition in goods and services trade. That could mean benefits to domestic producers in their attempts to sell in foreign markets, where foreign trade barriers are removed; and it could also mean that domestic producers face more foreign competition in their own market. The overall goal is more competition and benefits to consumers, not helping domestic industries. So, for me, using treaties to help domestic industries compete in foreign markets should not be a rationale for trade agreements. It may be an incidental effect, but it's not the goal. But you're right, maybe it is a main purpose in practice, and maybe that's how governments try to get public support. I question whether this is an effective approach, though, and in my view it may be one reason that getting trade agreements signed is so difficult these days. If that's how all governments approach these agreements, it makes it very difficult to find a balance that everyone can live with.

I'm not sure there is a definitive legal interpretation on this point, but see the reasoning of the EC - Vessels panel at paras. 7.76-91: http://www.worldtradelaw.net/reports/wtopanels/ec-vessels(panel).pdf

Thanks for these comments! Very helpful. I had in mind something a bit radical, with different patent terms for different products. But I've now abandoned it as impractical.

With regard to Article XI, the AB hasn't weighed in here, but the China - Raw Materials panel did say some interesting things. See paras. 7.862-950. As for Article XX, I can imagine arguments that such measures are necessary for "human life or health" and "public morals." It would be nice if all international legal instruments were clearly and neatly reconciled. But that may be too much to ask of negotiators.

Joel, I've been reading up a bit on this, although I'm still far from an expert. I looked at the report by Joost's colleagues; a paper by a critic; and Julian Ku's post at Opinio Juris. As far as I can tell, the main thing the treaty would do is require countries to have an export control regime that addresses concerns about weapons getting into the wrong hands. In terms of how WTO rules apply, I don't see anything in the treaty that inherently violates WTO obligations. It doesn't seem too difficult to set up a domestic export control regime in a way that complies with the rules. My understanding is that the U.S. (and probably others) already have something like this, and I've never heard of a possible legal challenge here. Of course, a particular government might implement the treaty in a way that does violate WTO rules. But any measure by a government may violate WTO rules in the way that it is implemented, so there's nothing new here. If I'm right about all that, is there any need for clarification of the Arms Trade Treaty's relationship with WTO rules? Or can we just wait for countries to act pursuant to the treaty (if, in fact, they do act), and judge their actual measures as implemented?

Just a quick response to this point: "allowing the free importation of foreign-printed books will cause publishers to abandon the discounts they currently offer on book sales in developing countries." In the alternative, allowing the free importation of foreign-printed books might cause publishers to abandon the premium charged on book sales in developed countries.

Tom, Thanks for these additional details. I guess what I had in mind was that complainants always seem to allege discrimination, even when it is not at all apparent that discrimination exists. There have been some broad interpretations of non-discrimination obligations in the past, so you can always make some argument in this regard. My sense is that people like to include a claim of this sort, even if just for PR purposes. So, I was surprised Malawi didn't even argue it. Of course, this is just a TBT Committee meeting, so they are not precluded from arguing the point if an actual dispute starts up. Simon

Thanks, Debra! I edited the post to reflect your correction. Simon

Rob, I agree that like products and burden of proof are very important issues here. The role of Canadian government policies in the analysis is an interesting one. I'm not sure what to make of it, and I'm curious to see how the panel deals with it. Simon

It sounds to me like you are saying the following: Generally speaking, U.S. laws are more favorable to foreign investors than investor-state provisions are; however, in some instances, the investor-state provisions are more favorable, and we should preserve this.

"US laws are generally more favorable to investors, including foreign investors, than has been the case under NAFTA, let alone the newer and less favorable agreements." Sounds like an argument that we don't need investor-state! ;) Simon

Joost, Let me make an observation and a comment. First, the observation. This is from the press release announcing Graham's appointment to the Appellate Body: "Mr. Graham served as Deputy General Counsel in the Office of the U.S. Trade Representative where he was instrumental in the negotiation of the Tokyo Round Agreement on Technical Barriers to Trade ..." http://www.wto.org/english/news_e/pres11_e/pr647_e.htm Second, the comment. I agree with Graham that the negotiating history could play a larger role than it currently does. It surprises me sometimes how little attention the parties and adjudicators pay to it. It's not that I think there are lots of clear answers to difficult interpretive questions in this history. But in the several areas I've looked into, there are informative details that would help shape the interpretation. And I think that ignoring these details, and placing so much emphasis on vague words in the text, does leave some decisions looking less credible.

Mark, Check out the following table: http://www.census.gov/compendia/statab/2012/tables/12s1291.pdf If I'm reading this correctly, EU investment in the U.S. is roughly 6 times the amount of Canadian investment. Will that mean 6 times more cases? Will there be similar levels of cases against the EU and its member states? If so, the international investment system might look a lot different to those who are currently pushing for it! But first they have to get this agreement done, which will be no easy task ...

Mark, I agree that the U.S. and EU have shown no sign of re-thinking investor-state, and the HLWG report suggests they will continue on the current path. But the following statement in the report struck me as significant: "the United States and the EU have directly invested more than $3.7 trillion/€ 2.8 trillion on both sides of the Atlantic." More investment means more opportunities for litigation, and based on those figures, there's a lot of investment! It's not clear to me that either the U.S. or EU leaders have thought much about how an investor-state loss would play domestically. Or maybe it's more accurate to say, they are not going to worry about this issue until they start seeing a few losses. With the amount of investment that would be covered in a U.S.-EU agreement, they might have to start contemplating the impact of losses.

Over at the Cato blog, I did a similar post, and then speculated a bit about what Krugman is doing. http://www.cato.org/blog/protectionism-not-dead-yet

Yes, I believe so.

In my paper, I relied on Article XVII. I worry about the scope of XVI in relation to domestic regulatory autonomy. But there may be specific examples of where XVI could be helpful here. With regard to subsidies for purchases from local providers, here's what I said: "Subsidies should be for students, not for domestic educational institutions. It is common for governments to give financial aid to students from lower- and middle-income families. However, these subsidies should not be used to discriminate against foreign online universities. If the purpose of these programs is to help students, they should be granted regardless of the institution, provided it is a legitimate one. In its initial negotiating offer as part of the Doha Round, the United States said: “Scholarships and grants may be limited to U.S. citizens and/or U.S. residents of particular states. Tuition rates may vary for in-state and out-of-state residents.” These policies are designed to help students directly, not educational institutions themselves, and are therefore acceptable. The offer further states: “To participate in the U.S. student loan program, foreign institutions established in the United States would need to meet the same requirements as U.S. institutions.” This principle is also fine, if applied equally to foreign and domestic online institutions."