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Simon Lester
Florida
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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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Rob, I get the sense they are not planning to take on trade remedy measures used against environmental goods, which is unfortunate: http://www.cato.org/publications/free-trade-bulletin/free-trade-environmental-goods-trade-remedy-problem
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That sounds right to me for expropriation. What about for regulatory expropriation? In domestic law, there aren't usually exceptions, are there? Is it better to have the policy justifications taken into account in the obligation itself? I'm agnostic on all of this. But I would like to see how it plays out in actual cases.
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Andrew, Do you think exceptions of this sort could ever be applied to actual expropriation, e.g., government seizure of a factory?
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Thanks, Fredrik. Glad to hear we agree on the incorporation of these principles into national law. I'm surprised this idea doesn't get more traction. You'd think the business community would love it. It would be interesting to see this raised in the TTIP context. The US and EU might be the ideal countries to talk about what should be part of national standards.
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I think I'm more focused on the "least harmful means" aspect of this. How do you evaluate harm/restrictiveness? What does the inquiry look like? Is it about a decrease imports? Something more abstract?
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Lorand, I wonder if you could clarify what a pure trade restrictiveness test under a "necessity" provision such as 2.2 should look like. How should this element be evaluated? Presumably disparate impact/effect/aim, etc. are all irrelevant here. So what is relevant?
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Just wanted to chime in to support Julia here -- I see it pretty much as she sees it.
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Roderick, Other priorities is definitely a big part of it. But beyond that, my sense is there is a reluctance to open up core issues like this. People would rather have a vague compromise then a clear debate. But maybe I'm wrong about that.
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