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Simon Lester
Florida
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Just to be clear, I'm not arguing that this should be a violation of Article 2.2. But I can imagine that a tobacco-exporting country would argue that it violates Article 2.2.
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Chris, That's a bold vision for the TPP, and I always respect bold visions. I have my doubts, though, that we can expect the TPP to accomplish things like that. It's hard to imagine governments giving a Secretariat such powers, and if the governments themselves wanted to cooperate on such matters, they could just do that now.
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But wait. You say the complaint is not in accordance with the GATT, but we don't know that for sure until a panel finds the measure to be compliant with XX, right? So the complaint is fine under GATT at the time it is brought, but later, a panel might determine that the complaint is actually not in accordance with GATT. My head is spinning! I agree with you that XX should be available as a defense. But I'm skeptical that a WTO complaint as an action would ever not be in accordance with GATT. I'll have to give that one some more thought.
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Even if a WTO complaint were a "specific action" of this type, wouldn't it be in accordance with the GATT? I can't see how it violates the GATT to bring a complaint. The subsidy may or may not be justified under GATT XX, but that can only be decided in WTO DS.
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That's the kind of situation where I imagined GATT XX might come into play. What I'm not sure about, though, is the relevance of SCM 32.1 here. What is the "specific action against a subsidy" in your examples? Are you thinking somebody might impose CVDs on exports of those goods?
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Joel, If I could jump in, do you have an example of the kind of measure you have in mind?
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Chris, Could you elaborate a bit? What kind of political integration do you envision for the region? Simon
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Thanks, there are some really interesting issues with the treatment of local government measures that have never really been dealt with. Some day a case will come along and we will have to sort it out!
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I agree those are interesting questions! But I don't have an answer.
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Bryan, Can you give some details? Where exactly have they pulled back from what was agreed? And do you think there are implications for how the Republicans proceed?
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Thanks, Jari. I'm no human rights expert, but my sense is that the right of individuals to sue governments for human rights violations is not widely available (there are only a couple regional courts of this kind). And it is rare that a human rights court can offer real remedies. To take an example of the difference, under the NAFTA, foreign investors can sue host governments, but there is no human rights equivalent. So, for those who support these investor rights, my question is: Should there also be a North American human rights tribunal, where individuals can bring claims and there are real remedies?
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John, What do you mean when you say "all tribunal proceedings are posted on-line"? I'm pretty sure that's not the case right now. Many are, but some aren't. There is a movement to post more online, but I don't think we're quite there yet in terms of transparency for all of these proceedings.
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Hi Andrew, I didn't comment on this part because I can't figure out what he meant either! Did he mean that ISDS inherently interferes with national court jurisdiction, by allowing cases to leave the national sphere and move to the international, and thus should never be allowed? Or did he mean that if not structured properly, ISDS could limit national court jurisdiction? Or something else entirely? Very hard to say.
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David, Thanks, that's probably a good place to start, in terms of thinking about how international agreements can provide a better investment environment.
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Brett, I guess I was focusing on Article 26.1(b), which says: "where a measure has been found to nullify or impair benefits under, or impede the attainment of objectives, of the relevant covered agreement without violation thereof, there is no obligation to withdraw the measure." Because it's clear you can't get the measure withdrawn, the incentive to bring a case is weakened. I'm not quite sure how the recommendation for a "mutually satisfactory adjustment," and resulting retaliation, would play out in practice. Maybe we'll find out some day!
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Thanks, Brett. You may very well have been right about the "non-violation" nature of the case -- I've heard others say the same thing. I'm just not sure what this is based on. I'd want to hear more from others who take this view. Simon
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OK, Benn, I read your latest comment as a general criticism of investment treaties, rather than an argument for a carve out of tobacco, so I'm going to declare victory and get out of this discussion! ;)
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But isn't an investment treaty just "a minimum obligation" set through an international process? Why distinguish? If you say that such international protections are not needed at all, I can see the point. But if you're saying, such protections are generally needed, but should not be given to tobacco, that doesn't make sense to me. If that's your position, I don't see why it wouldn't apply to domestic constitutions.
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Benn, Let me go deeper into one point you make (assuming you are still following this thread!). You said: "It is poor public policy for governments to provide incentives for investment in the tobacco sector, ..." And then later you said: "there is no question that investment treaties provide an incentive for investment in the form of additional legal protection." It is true that legal protections can provide incentives to invest. Where such protections exist, companies are more likely to take on the risk of an investment. Thus, if these protections exist in the tobacco sector, companies will invest more there than they otherwise would have. But taking away these general protections for particular sectors that people don't like seems odd to me. A suggestion that we should carve out tobacco from protections in the trade law context, in order to avoid providing incentives, strikes me as the same as saying we should carve tobacco out of the U.S. or Australian constitutions. So, you could say that, generally, takings/regulatory takings require compensation, but for tobacco they do not. Would you take the principle you seem to endorse -- if I'm understanding you correctly -- in the international context and apply it to the domestic context as well? Should tobacco be carved out of domestic constitutions? How is carving tobacco out of international economic agreements any different from that?
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Thanks, Benn. Addressing the points from your blog post, obviously I don't mean that there is no recourse for expropriation absent ISDS in TPP. Domestic law still applies. But presumably the point of international treaties having expropriation rules is that people consider domestic law insufficient in some cases. Thus, without expropriation rules in the TPP, there will be no recourse where countries don't have adequate domestic laws. The result is that in those countries, a government can expropriate tobacco factories without providing adequate compensation. Sorry if that wasn't clear, but I think now it is. On the tax point, if we're talking about an income tax, I'm not sure WTO law would apply. Also, the real issue is in countries with problematic domestic governance, so I'm not sure domestic remedies can help. I'm not sure I understood your third point. But the real issue is your last point, where you say: "I agree with Simon that fixing investment treaties as a whole should be the primary priority. However, this is not mutually exclusive with excluding tobacco from the TPP investment chapter." While it doesn't have to be mutually exclusive, it seems to me that in practice it is. Anti-tobacco folks are putting all their energy and resources into excluding tobacco, and not thinking more broadly about health issues. If they "win," we still have ISDS, and all other health regulation will experience the "legal chill" mentioned above. Is that really a good result from the perspective of the public health community? It seems to me that people arguing for reforming ISDS are finally making some progress (even the Economist is now taking this seriously!), and there's a real chance for changing course. But many anti-tobacco folks are saying, in effect, we don't care about any of that, just get tobacco out and we will be happy and stop bothering you. That seems like a very narrow and restricted way of engaging with the issues. Oh, one more thing: I disagree that ISDS provides incentives to invest in any industry, much less tobacco. There's just no evidence of a correlation between ISDS and investment, as far as I can see.
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Chris, I'm not sure why you say my argument fails to take into account "legal chill." I thought I was fixing legal chill for all policy areas, including tobacco but not limited to it. As I see it, it's the tobacco carve-out that fails to take into account legal chill, as it ignores it for all issues other than tobacco. Keep in mind that the vast majority of ISDS cases are not about tobacco. Along the same lines, you say you are not against dealing with issues other than tobacco. But calling for a carve-out for tobacco explicitly ignores those other issues. So, regardless of whether you mean to be against dealing with those other issues, I would say that, in practice, your approach leads to those issues not being dealt with.
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I'm not very familiar with those, but yes, if there are such rules, they would apply. Pretty sure they aren't enforceable, though.
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Thanks, Henning. This feels like it will end up in dispute settlement at some point, although it's hard to say when that might be.
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Thanks, Alan. I don't claim to have any great inside knowledge of this issue, but the message I hear from a majority of members of Congress is: No way are we giving in on GIs at all! But who knows, maybe that is posturing to some extent.
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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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