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Simon Lester
Florida
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In terms of internal EU politics, I really don't have a good sense of things. If they can't into the EU, though, there is always EFTA/EEA: http://www.efta.int/eea
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Thanks, Mark. There is a real mix of issues here. Some appear to about alleged de facto discrimination. Some are more about inefficiencies of unilateral regulation. Some relate to a harmonized global standard. I'm not sure why any of the issues should be excluded from the TTIP talks. However, I doubt much progress can be made on most of these.
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Nothing. If we're already fully open in this regard, there is nothing more that needs to be done. I haven't checked GATS commitments on this. I've been assuming that if the EU wants financial services in TTIP, there must be something left to open. Do you know what they are after?
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Thanks. I won't try to rephrase you anymore -- I'll just let your explanations stand!
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Thanks for your insights, Mark. It sounds like you are saying that the US government view is the following: Because someone once proposed TTIP financial services rules that might undermine Dodd-Frank, we now reject any and all TTIP financial services rules regardless of their impact on Dodd-Frank. I'm still baffled by all this. It's really not very difficult to draft trade rules that allow foreign competition into your market, but do not undermine regulation. It seems like, at the least, we could get a commitment to provide national treatment in the financial services sector.
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Marc, See this old post of mine: http://worldtradelaw.typepad.com/ielpblog/2012/07/standards-of-appellate-review.html I can't get the link to the journal to work right now, but hopefully it's just temporarily down, and will be back up soon.
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This may help explain things: "Currently, the majority of off-winery stores -- such as those in grocery stores -- are operated by the two largest Canadian winemakers. Constellation Brands runs more than 160 Wine Rack stores and Andrew Peller Ltd. has 100 Wine Shop outlets. Those stores were grandfathered in after the 1987 Free Trade Agreement with the U.S. Since that time, ontario put a moratorium on stores and new winemakers can only sell product in the LCBo or at their wineries." http://www.thoroldedition.ca/2014/08/25/wine-council-backs-call-for-private-stores
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See also Article 804, para. 2 of the Canada-US FTA: http://www.worldtradelaw.net/nafta/Cusfta.pdf But I can't figure out what the actual measures look like.
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Canada's industry minister just made a new proposal on these issues: http://www.ic.gc.ca/eic/site/081.nsf/eng/h_00007.html I only skimmed it quickly, but it doesn't seem to get into concrete details about how to put the broader goals into effect.
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Thanks, Chris. It seems like there are several options here: -- a nation-wide TILMA -- constitutional amendment/new constitutional interpretations -- a revised AIT with private right of action -- federal action of the sort you propose (maybe you just need to re-brand it -- Canadians may be unlikely to support "nuclear" approaches!) I don't know where this is going, but I like to see people thinking about the fundamentals of economic integration, so I hope it keeps making headlines.
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It may depend on who you mean by "anyone." If you are thinking of international lawyers, you may be right. But did national legislatures have any sense of this? I suspect they did not. And the vagueness comes about because of the scope of this provision. What exactly is "targeted racial discrimination"? Domestic law and policy here varies, and thus its application in investment tribunals has considerable uncertainty.
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Julia, I don't know those details. I'm eager to hear from anyone with expertise on this!
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Jari, To give you one example, the CETA text refers to: "Targeted discrimination on manifestly wrongful grounds, such as gender, race or religious belief" I think we can all agree that gender, race and religious discrimination are wrong, but also that they are still pretty rampant. (And these are just examples. What other types of discrimination are covered?) Do we want international investment obligations to serve as a remedy for this discrimination? How much does this broaden the scope of the investment regime?
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Mona, I did wonder why "minimum standard of treatment" was not used in the text -- it wasn't clear to me what the significance of this omission is.
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For the original text, see page 371 of the PDF version of the panel report here: http://www.worldtradelaw.net/reports/wtopanelsfull/china-rareearths(panel)(full).pdf.download
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Maegan, Thanks for pointing this out! It's difficult to analyze this issue in the abstract. Maybe some day we will have an actual FTA dispute where provisions such as these are applied. Simon
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I can see how the Appellate Body's statement in Rare Earths is implicit in the Clove Cigarettes reasoning. But saying, "Article XX of the GATT 1994 has been found by the Appellate Body not to be available" seems too strong.
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I don't doubt that investors want the strongest investment obligations they can get. But there has been a lot of push back, so the practical issue, as I see it, is finding an acceptable balance.
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Federico, I think that is well-stated. It's the package as a whole that leads to controversy. Looked at individually, the elements don't seem problematic. But when you put them all together, they create something quite broad in its impact.
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And a further question: What should international law have to say about this?
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Sungjoon, If the prudential exception ends up looking like the chapeau or the even-handedness test, that would probably reassure some of the critics.
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No, I meant that the existing German system discriminates against German drivers, because only they pay. Is that right?
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Sungjoon, This is the kind of decision that calls out for remand authority!
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Rob, Whenever I hear compulsory licensing offered as a solution to high drug prices, I wonder if that is just nibbling around the edges, and ignores a more direct action: Lowering the 20 year patent term. I've looked, and I can't find good evidence supporting a term this long. Maybe it's time to rethink it.
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