The Role of the European Union in the Systemic Reform of Investor-State Dispute Settlement in International and Regional Trade Agreements
(The Impacts of the European Institutions and the European Common Commercial Policy on the Complex Regime of Regional Trade Agreements and the Global Trade System)
The recent upheaval in international trade relations with the Comprehensive and Economic Trade Agreement between Canada and the European Union (« CETA ») and the near blockage of its signature by the Walloon Parliament in October 2016 is only one of many recent political events highlighting the change in negotiations and the shift in the European Union’s power. Has the EU become an untrustworthy partner, and lost credibility due to its inability to conclude the new major trade deals, as illustrated with CETA and the halt in the TTIP negotiations? Or has the modification of the traditional multilateral scheme, replaced by a clear interregionalism, had an impact on the EU’s CCP on trade negotiations between partners, in the design and content of international trade agreements? The current political context contributes to the underlying uncertainty surrounding trade agreements. The United Kingdom’s June 23, 2016 vote for its exit from the EU has raised the issue of negotiation of renewed trade deals with major partners. In addition, the long awaited CJEU legal opinion on the provisional application of mixed agreements under the EU-Singapore Free Trade Agreement was issued on May 16, 2017, and could have a lasting impact. After the United States’ withdrawal from the Transpacific Partnership (« TPP ») at the beginning of the year, the renegotiation of NAFTA was formally launched on May 18, 2017. Powerful actors are redefining their strategies in view of the shift in balance between approaches to multilateral, regional, interregional and bilateral relations. The EU’s CCP and the TFEU appear to have impacted not only on the EU’s position, but also on the global trade system altogether. Are European institutions still adapted to the changing landscape of international trade agreements and the shift in negotiation partners in the interregional relationships developed by the EU with Asia? The new generation trade deals have an undeniable political impact, and contribute to redefining the complex interaction between global, regional and national levels of governance in trade relations (Telò, 2016). The CCP has explicitly defined its increased participation in regional and bilateral trade agreements to be used as « stepping stones » to the multilateral negotiations of the WTO (EU Trade for all, 2015).
The objective of this research project is to « complete a legal analysis of the effects of the Common Commercial Policy on the design and content of the complex regime of international trade agreements. It will consider the fact that multiple dimensions of the EU’s CCP and the TFEU appear to have impacted not only on the EU’s position, but also on the global trade system altogether » (Gem-Stones call for applications). This will entail the assessment of the role of Preferential Trade Agreements (« PTA ») concluded by the EU and their impacts on the WTO. Finally, this will allow us to determine whether trade negotiations can be the same when the EU is involved. The design and content of international trade agreements can be evaluated, compared and contrasted through empirical network analysis. The legal regimes mobilized will be construed in the reality of « complex adaptive systems », and « network analysis » used as the research tool to empirically assess the data set and help rethink globalization from a complex system perspective (Pauwelyn, 2014).
As the focus of this research is the European Union CCP’s impact on the regime of international trade agreements, the objective will be to build on the existing dataset for empirical research to analyze new interregional relations and the impact of the EU’s trade policy on the global trade negotiations.
The objective of this research project will notably be to understand the shift in the negotiations of international trade agreements by regions with bilateral partners to regions amongst themselves. This can be evidenced by the explosion of the conclusion of PTAs, from 70 in 1990 to close to 300 in 2011 (Telò, 2016). PTAs are permitted under Article XXIV of the GATT, article 5 of the GATS and the Enabling clause (Pauwelyn, 2014 : 3)), and article 133 of the Treaty on the Functioning of the European Union (« TFEU »). The impact of this shift will then be transposed to the multilateral negotiations and relationships amongst Members of the WTO, to understand whether the bilateral, plurilateral and regional trade agreements negotiated amongst the regional partners may lead to a new way for the EU to participate in the multilateral negotiations at the WTO.
To be confirmed and currently considered, focusing on the investment chapters:
Canada-EU Comprehensive Economic and Trade Agreement (CETA)
Japan-EU Partnership Agreement (JEEPA)
EU-Vietnam Free Trade Agreement
Not yet determined.
As we stand at a turning point in international trade negotiations, the legal analysis of existing EU institutions will assist in understanding the shift in power to the east, and between the regions themselves. Indeed, ongoing negotiations between major partners will redefine the existing trade relations no matter whether they are concluded. The Regional Comprehensive Economic Partnership (« RCEP »), Transatlantic Trade and Investment Partnership (« TTIP »), TPP and CETA can be considered as the outcome of the EU’s CCP, its will to negotiate regional agreements, and contribute to the redefinition of a multipolar world into a multiregional partnership. The competition to conclude trade agreements with China both through EU and US partnerships (for the EU with the negotiation of the EU-China FTA, for the US, with the negotiation of the TPP, excluding China, and competing with China’s parallel initiative in the RCEP) also highlight the shift in international trade negotiations. This will lead to a refined understanding of the creation of the « Pacific century » as economic interests converge to that region of the world. While the US has a rule making approach, contrasted to the EU’s development of a legal model, the convergence of interest could lead to the center of the nodes of international trade agreements being moved to Asia. This will allow us to answer the second research objective as to whether trade negotiations can be the same when the EU is involved. The role of the European institutions needs to be analyzed to understand the impact of the EU’s involvement in trade negotiations. More specifically, an assessment of (1) the role of the CJEU, (2) the mandate of the Commission to negotiate international trade agreements, (3) the determination of an agreement as a mixed agreement (or not), (4) the vote of Member States on the signature of mixed agreements, and the related issues to the provisional application (whether or not it may be enforced in the case of mixed agreements, and if Member States have the power to halt it altogether, as many are claiming under CETA), is required to respond to the second research objective.
Laurence Marquis is a Marie Sklodowska-Curie doctoral fellow with the LUISS University, in Rome, and the Université Laval, in Québec. Her research focuses on free trade agreements, and the impact and implementation of the EU investment policy by European institutions, in the European union as well as on the complex regime of international free-trade agreements.
As a lawyer called to the Quebec and Paris Bars, she obtained her law degree at the Université de Montréal and her master’s degree in international commercial law at the Université Paris 1-Sorbonne. She practiced law with the international arbitration group at Jones Day, and acted as deputy counsel for the International Chamber of Commerce in Paris. More recently, she was counsel to the Government of Canada in investor-State arbitrations under NAFTA Chapter 11, as well as with the negotiations of treaties on the protection and promotion of investments and other free-trade agreements.
She has lectured in international arbitration with the Université the Sherbrooke, and was Editor in chief by interim for the Quebec Journal of International Law at the Université du Québec à Montréal.
Stéphane Paquin, Laurence Marquis, “The role of Ontario and Québec in the renegotiation of NAFTA (USMCA)”, Canadian Journal of Political Science (to be published)
Laurence Marquis, “Christian Deblock, Joël Lebullenger, Génération TAFTA. Les nouveaux partenariats de la mondialisation”, Presses universitaires de Rennes, 2018, Issue 30.2 – 2018, Quebec Journal of International Law (to be published)
Laurence Marquis, “The EU Investment Policy Since the Lisbon Treaty: A Decade’s Evolution from Conservative to Innovative?”, Routledge, in The Supranational at Stake? The EU’s External Competences caught between Complexity and Fragmentation, Eds. Pr Anne Weyembergh & Pr. Mario Telo (to be published)
Mark Daku, Laurence Marquis, “Ethics in Research”, in Morin, Jean-Frédéric, Christian Olsson and Ece Özlem Atikcan (eds). Key Concepts in Research Methods. Oxford: Routledge (to be published).
Laurence Marquis, “L’Accord de partenariat stratégique Canada-Union européenne: Jumeau politique méconnu de l’Accord économique et commercial global”, RQDI Hors Série, 60 ans de l’Union européenne (to be published)
Laurence Marquis, « Christian Deblock, Joël Lebullenger et Stéphane Paquin, Un nouveau pont sur l’Atlantique : l’Accord économique et commercial global entre l’Union européenne et le Canada, Québec, Presses de l’Université du Québec, 2015 », Issue 28.2 - 2015, 31 Octobre 2016, Quebec Journal of International Law Revue québécoise de droit international
Laurence Marquis, Emmanuel Jolivet, “Arbitration and the Environment”, Paris Journal of International Arbitration 2011
Laurence Marquis, Jan Heiner Nedden, “Use of Technology by a Major International Arbitration Organization”, International Commercial Arbitration Practice: 21st Century, 2011
Laurence Marquis, Emmanuel Jolivet, “Provisional Enforcement of Awards in France”, Paris Journal of International Arbitration 2010
Laurence Marquis, Emmanuel Jolivet, “Pathological arbitration clauses”, Paris Journal of International Arbitration 2010
Laurence Marquis, Emmanuel Jolivet, “Costs in ICC Arbitration”, Paris Journal of International Arbitration 2010
Laurence Marquis, « An update on recent ICC Court Practice », YCAP Newsletter, Lex Arbitri, 2011
Academic conferences and activities
November 2018, De la porosité des frontières normatives en droit international: l’exemple du droit international économique, organizer of the panel for the Quebec Society of International Law, Ottawa, Canada (organizer)
November 2018, The Comprehensive and Economic and Trade Agreement: an overview, European Integration bachelor’s degree class, Université Laval, Quebec, Canada (lecture)
November 2018, CETA/NAFTA: Ouverture de nouveaux marchés!, with the Honorable Pierre-Marc Johnson and Raymond Bachand, organized by the French Chamber of Commerce, Montreal, Canada (moderator)
October 2018, The Strategic Partnership Agreement between Canada and the European Union, Double Masters Degree between Université Laval and Université de Bordeaux, Université Laval, Quebec, Canada (lecture)
May 2018, The (r)evolution of the EU investment policy – Lessons from the ICS in CETA to the EU-Japan proposal, European Union in International Affairs, Brussels, Belgium (academic conference)
April 2018, The future of investment arbitration, Masters degree seminar, invited by professor Kun Fan, McGill University, Montreal, Canada (lecture)
March 2018, Panel moderator for the Student Circle conference, Quebec Society of International Law, McGill University, Montreal, Canada (moderator)
February 2018, Implementing CETA – impending doom for the EU’s investment policy?, Gem-Stones Annual Conference, Hamburg, Germany (conference)
October 2017, The Strategic Partnership Agreement between Canada and the European Union, Autumn School in European Law, Jean Monnet Chair in European Integration, Laval University, Quebec, Canada (academic conference)