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Donnelly Speaks Up for Business at UN Trade Meetings

Published on May 1, 2018
Shaun Donnelly

USCIB Vice President for Investment Policy Shaun Donnelly single-handedly represented the views of the business community at last week’s meetings of the United Nations Commission on International Trade Law (UNCITRAL) Working Group III on Investor-State Dispute Settlement (ISDS).  The week-long meetings at UN Headquarters in New York were, according to Donnelly, “a painstaking death march through a draft UNCITRAL document on real or perceived problems with the existing ISDS system.” Eighty UN member governments (sixty of whom serve terms as full UNCITRAL members, plus 20 observer governments) were generally critical of the current systems and numerous NGO observers were always happy to chime in to attack ISDS investment arbitration and businesses which use those protections, reported Donnelly.

It fell to a relative handful of government delegations plus Donnelly and one European business representative, as well as fellow observer representatives from leading law and arbitration bodies such as the American Bar Association,  the American Society of International Law, and the American Arbitration Association to defend the well-established ISDS arbitration system.

“Clearly ISDS is under assault from NGOs and many developing countries,” said Donnelly. “The European Union and its member states are pushing hard for early negotiations on a new permanent multilateral investment court to replace the whole ISDS system.” Donnelly and other observers continued to emphasize in formal interventions and in corridor conversations with key delegations the proven strengths of the current ISDS system and, by implication, serious problems with some of the more state-dominated “reform” proposals.

“Frankly, it’s frustrating, “ Donnelly said, “to see UNCITRAL and many of its member governments so intent on rushing hell-bent to replace a proven system of independent, expert arbitrators to resolve complex investment disputes. Ideas from the EU and others to replace ISDS with some sort of state-dominated permanent court seem explicitly designed to be hostile to investors and are not helpful.”

UNCITRAL is scheduled to continue semi-annual WG meetings, alternating between Vienna and New York, and will be turning to debating specific alternative systems. These issues will need more attention from US and international business going forward, both at the sessions and intersessionally with national governments.

The Hill: Trump Aiming to Make NAFTA Like a Football Game Without Referees

Published on April 26, 2018

Op-Ed by USCIB President and CEO Peter Robinson as appeared on TheHill.com

The business community is broadly supportive of efforts to update and strengthen the North American Free Trade Agreement (NAFTA). NAFTA has been a major success for the United States, as well as our Canadian and Mexican partners.

But it’s now a quarter-century old and lacks rules in important new areas like digital trade, data flows and treatment of state-owned enterprises. A modernization that will bring NAFTA into the 21st century would be a welcome development, provided that it keeps what is already working in the agreement.

Since we are living in an age where the benefits of global economic integration are not well understood or appreciated, it’s worth backing up a bit to ask: What is a free trade agreement (FTA) anyway? Also, why would countries want to enter into an FTA?

The United States currently has FTAs with 20 countries, but other countries around the world have entered into several hundred bilateral and regional FTAs since the end of World War II.

They have done so not to cede sovereignty or export jobs overseas — two of the widely held misconceptions about trade agreements. Rather, they enter into FTAs in order to grow their economies through mutually beneficial cross-border trade and investment.

FTAs historically have provided preferences to the negotiating parties primarily centered around tariff-free trade. More recent trade agreements, including NAFTA, also include provisions on customs and trade facilitation, investment protection, regulatory standards, environment and labor and many other issues.

The key to reaping the benefits of an FTA and ensuring that it benefits U.S. companies, workers and consumers is to enforce the rules of the agreement in the event of a breach. In short, a new NAFTA must be fully enforceable.

Unfortunately, it seems that the Trump administration may want to weaken NAFTA’s core enforcement provisions. Such a change would spell disaster, akin to playing football or any other sport without a referee.

NAFTA currently has three strong chapters that provide for enforcement and redress: Chapter 11, which covers disputes between investors and states; Chapter 19, which covers anti-dumping measures and countervailing duties; and Chapter 20, which covers state-to-state disputes.

The United States has put forth proposals on each of these chapters, ranging from weakening the provision to entirely eliminating the chapter. If all of these proposals were to be included in NAFTA 2.0, there would be no provision available to provide legal recourse to an injured party against the party in breach of any of the substantive provisions.

Simply put, an agreement without enforceability would be bad for business. The Trump administration’s proposal for an “opt-in” approach to NAFTA’s existing dispute resolution mechanisms is no substitute for real, recognized, agreed and enforceable rules in this area.

Without substantive provisions protecting investment, including investor-state dispute settlement (ISDS), it’s very unlikely that the United States would gain the very tangible benefits it gets from open investment among the three NAFTA partners.

ISDS depoliticizes the enforcement of important investment rules by putting the dispute in the realm of neutral and legal arbitration.

U.S. investors, including the many smaller and medium-sized companies that have expanded sales and operations north and south of the border under NAFTA, would be far less willing to do business in Canada or Mexico if those governments couldn’t be held responsible for poor treatment or abuse of power.

The same goes for Canadian or Mexican investors in the United States, who have created many thousands of jobs here at home since NAFTA came into effect.

More broadly, you have to ask yourself: What good is a free trade agreement without enforcement provisions? The law of the Wild West is not the sort of formula needed to govern international trade and investment in today’s complex globalized international economy.

To extend the sports metaphor, the Trump administration seems to be more focused on playing defense than offense, preoccupied with eliminating tried-and-true principles because they impinge on our unilateral ability to block imports, discriminate against foreign products or projects and simply ignore inconvenient rules and regulations.

Historically, under both Republican and Democratic administrations, the United States has played offense. Indeed, we have been the star quarterback of the pro-growth team, leading international efforts to open markets, fight protectionism, promote greater international competition and uphold the rule of law.

A key part of this has been our insistence on strong enforcement provisions, i.e., referees with real whistles and real authority. For the U.S. now to focus on defense while also throwing away the rulebook is truly troubling.

Peter M. Robinson is president and CEO of the United States Council for International Business a business advocacy group that was founded in 1945 to promote free trade and help represent U.S. business in the then-new United Nations.

Donnelly Defends Strong Investment Protections at UNCITRAL Meeting in New York

Published on April 24, 2018

USCIB Vice President for Investment Policy Shaun Donnelly is on the front lines this week defending international investment protections, and Investor-State Dispute Settlement (ISDS) specifically, at the United Nations in New York City.  Donnelly is the only U.S. business representative with formal observer status at the April 23-27 meeting of the UN Commission on International Trade Law (UNCITRAL) Working Group III on “Investor-State Dispute Settlement Reform.”

“Yesterday’s opening session showed that we on the business side are facing real challenges on ISDS with developing countries and NGO activists pushing to overturn 60 years precedent of legal protections for foreign investors with access to expert neutral arbitration to resolve disputes,” said Donnelly. “The European Union’s defection from strong ISDS provisions in their broad networks of investment agreements has given ISDS critics an unfortunate boost. The EU is aggressively and unhelpfully pushing its ‘multilateral investment court system’ in the UNCITRAL meetings this week. And the shift in recent months in the U.S. Administration’s  views on ISDS, also reflected in the on-going NAFTA update negotiations, is a further complication.”

Throughout the week, Donnelly will be reminding government delegates and other participants that investment, including Foreign Direct Investment (FDI), is the driver of economic growth, competitiveness, exports and jobs. And strong investment agreements with effective enforcement provisions can play a critical role in facilitating private investment flows.

“ISDS has worked well; governments like the U.S. with open investment regimes and strong rule-of- law culture do not lose ISDS cases,” Donnelly added. “But governments which discriminate or abuse foreign investors, tilt or rewrite the rules, need to be disciplined; ISDS offers investors those vital protections.”

Donnelly, a retired U.S. diplomat and trade negotiator before joining USCIB, made similar points in his presentation in a public “Open Form” session at the Grand Hyatt on April 23 hosted by Columbia University’s Center for Sustainable Investment for UNCITRAL participants, invited guests and the media.

Donnelly noted, “Now is the time for business representatives to speak up on the importance of strong international investment agreements.  Foreign investment, and especially ISDS, are under orchestrated attacks including a lot of disinformation. USCIB will be taking the lead in getting the facts our about foreign investment issues and ISDS. The best, strongest trade and investment agreements only deliver results when they include strong enforcement provisions to ensure compliance by all parties. ISDS is a proven formula to deliver effective, apolitical, fair enforcement.”

Over 100 Business Representatives Lobby Senate on NAFTA

Published on April 17, 2018

Following previous successful NAFTA Senate Lobby Days, USCIB once again participated last week, joining more than 100 representatives from the agriculture and business community to talk about private sector concerns and perspectives regarding the ongoing negotiations to modernize NAFTA. The Senate Lobby Day, as in the past, was coordinated as a larger Coalition effort by the U.S. Chamber of Commerce.

“The purpose of this day was to increase support in light of the high-level talks among the NAFTA countries currently taking place in DC,” noted Eva Hampl, USCIB director for investment, trade and financial services. “There is concern in the business community about the Administration’s alleged push to conclude an agreement on an accelerated timeline.”

Hampl led one of the groups that went up to the Hill last week, where she met with several Republican and Democratic Senate offices throughout the day.

“While the various offices are certainly focused on NAFTA, they do not appear to have a definite action plan on what to do in the event of the potential negative scenarios that may take place, such as withdrawal from NAFTA 1.0 or an inadequate NAFTA 2.0.,” said Hampl.  “Also, while the Committee appears to get briefings from the Administration when they request it, the remainder of the Senators are not being briefed in a way that should be expected under TPA, given that the agreement is allegedly near conclusion.”

Hampl Advocates on SOE Issues at OECD Meetings

Published on April 2, 2018

USCIB Director for Investment, Trade and Financial Services Eva Hampl was in Paris the week of March 26 participating in various meetings surrounding the work of the OECD Working Party on State Ownership and Privatization Practices. The consultation with the SOE working party took place on March 27. Business at OECD (BIAC) used this platform to present comments on global reporting standards for internationally active SOEs, integrity and anti-corruption in state-owned enterprises, as well as the OECD working party’s program of work for 2019-2020.

“Addressing stakeholder and, particularly, business involvement is crucial,” said Hampl in her remarks. “The importance of the adherence to the OECD Anti-Bribery Convention to ensure government backing, the benefits of privatization, as well as the importance of a horizontal OECD work program cannot be overstated,” she said.

The SOE issue has been addressed in turn by various Committees of the OECD. During the consultation, BIAC learned that such horizontal activity is being pursued by the OECD. On March 28, BIAC participated in a discussion with members of the Working Party on the follow up to the special roundtable on SOEs and Integrity in October, and on the “building blocks” of future OECD Anti-Corruption and Integrity Guidelines for the state as owner of SOEs. Hampl reiterated the point about the importance of stakeholder input, highlighting that business is at the frontlines of these issues and should be regarded as a specifically relevant stakeholder. Following the discussion, Hampl attended a joint session with the Integrity Forum entitled Towards Anti-Corruption and Integrity Guidelines for State-Owned Enterprises.

Hampl Moderates Panel on Trade and Corruption in Paris

Published on April 2, 2018

USCIB Director for Investment, Trade and Financial Services Eva Hampl was in Paris the week of March 26, participating in the Organization for Economic Cooperation and Development’s (OECD) Global Anti-Corruption and Integrity Forum, during which she moderated a panel on “Integrity & Trade: No Need to Grease the Wheels,” which focused on the relationship between trade facilitation and opportunities for corruption at the border.

Other speakers included Senior Trade Policy Analyst at the OECD Evdokia Moise, Policy Director of Trade Negotiations at the Ministry of Foreign Affairs of Norway Benedicte Fleischer, Capacity Building Director at the World Customs Organization (WCO) Ernani Checcucci, and Director, ABAC Governance and External Engagement at GlaxoSmithKline Gonzalo Guzman. Hampl noted the importance of trade running smoothly for USCIB member companies.

“Corruption is a cost to business and companies invest in compliance systems, however there are limitations to what business can effect internally,” said Hampl. “The customs border presents many opportunities for corruption. One vehicle to address these issues, of course, is the WTO Trade Facilitation Agreement. USCIB has been very active in promoting the ratification of the agreement with U.S. FTA partners, as well as within the Asia Pacific Economic Cooperation (APEC). As always, implementation is the key, and robust implementation is required to achieve the full benefits of the agreement.”

Moise presented preliminary work by the OECD that is being conducted in this space, addressing issues like automation and the relationship to corruption. Following the presentation, panelists and audience participated in a debate to address the various issues surrounding the topic, including transparency, the TFA and other global efforts.

“The general consensus after the panel was that while much is already being done, still more must be achieved, particularly when it comes to collaboration between governments, business, and civil society,” noted Hampl.

Donnelly and Claman Play Key Roles at OECD and BIAC Investment Meetings

Published on March 20, 2018
Shaun Donnelly speaks at OECD, joined by (on the left) BIAC investment Committee Chair Winand Quaedvlieg of VNO (Netherlands)

Citi Director of International Government Affairs Kimberley Claman joined USCIB Vice President Shaun Donnelly at the recent March 12-13 meetings of the Organization for Economic Cooperation and Development (OECD) and Business at OECD (BIAC) Investment Committee meetings in Paris.

Claman, a last-minute addition to the wrap-up panel for the OECD’s day-long annual Investment Treaties conference, offered business perspectives on the day’s debates on investment treaties and investment chapters as tools to protect and promote much-needed Foreign Direct Investment (FDI) flows around the world.

After BIAC’s in-house Investment Committee discussions and strategizing on March 13, Donnelly and Claman joined the BIAC delegation, as well as invited labor and civil society “stakeholders,” to participate in the OECD Investment Committee’s discussion of “National Security” provisions and exceptions in Investment agreements.

“This was a very timely topic in light of the Trump Administration’s invocation of ‘national security’ justification for steel and aluminum tariffs,” said Donnelly. “Business took a strong position that national security provisions and especially their ‘self-judging’ nature could be serious threats to the quality of investment treaty disciplines.”

Donnelly joined the Dutch BIAC Investment Committee Chair at the table for formal stakeholder consultations with the OECD Committee, where they outlined BIAC policy priorities and positions, presenting BIAC’s “Proactive Investment Agenda for 2018.”  The day concluded with Claman, Donnelly and the rest of the BIAC Investment leadership hosting an informal working dinner for the OECD’s Investment Committee leadership, a useful off-the-record forum for explanations, probing questions, and candid debate.

“It was a long and challenging couple of days but with challenges growing to investment agreements and especially Investor-State Dispute Settlement (ISDS), it’s critical that USCIB be there standing up for strong investment protections, including effective enforcement/dispute settlement provisions,” noted Donnelly. “We offer special thanks to Kimberley for bringing her unique company and former USG negotiator expertise to the discussions.”

“Illicit Trade” Work Heating up at OECD

Published on March 20, 2018

The Organization for Economic Cooperation and Development (OECD) Governance Committee’s Task Force on Illicit Trade is raising its profile and tempo of work and increasing its effort to include the private sector in that workstream.

USCIB Vice President Shaun Donnelly led Business at OECD’s (BIAC) participation in the first of two days of Task Force meetings in Paris on March 15-16 with strong participation from USCIB member companies and other private sector representatives.  Deputy Assistant Secretary at the U.S. Department of Homeland Security Christa Brzozowski is one of the two new co-chairs for this OECD Task Force, driving this important OECD work and providing strong senior-level U.S. government leadership.

“Illicit trade is a broad and elastic concept, including but not limited to pirated, counterfeit, “gray market”, and smuggled goods but also illicit movement of arms, drugs, antiquities and endangered species as well as and human trafficking,” commented Donnelly.  “As the OECD steps up its policy and coordination efforts to combat illicit trade, strong, broad and proactive private sector involvement will be essential.  BIAC and its national committees, including USCIB, will play the key role in making this process work.”

Colombians in Washington Lobby on OECD Accession

Published on March 12, 2018

Last week, USCIB was actively involved in various meetings with the Colombian government, business community and civil society on the issue of Colombia’s accession process to the Organization for Economic Cooperation and Development (OECD). USCIB Director for Investment, Trade and Financial Services Eva Hampl, who coordinates U.S. business input on OECD accession issues attended a number of these meetings, along with USCIB Senior Vice President for Policy and Government Affairs Rob Mulligan.

“With only two outstanding OECD Committees left to approve the accession, Colombia has ramped up lobbying efforts to the U.S. business community and government,” said Hampl. The outstanding committees are the Committee for Employment, Labor and Social Affairs (ELSA) and the Trade Committee. These committees are scheduled to deliberate in March and April, respectively.

In anticipation of the upcoming meeting of the Trade Committee, Colombia’s Minister of Trade Maria Lorena Gutierrez met with USCIB to discuss outstanding issues on pharmaceuticals, distilled spirits and truck scrapping, as outlined in the Business at OECD (BIAC) Pre-Accession Recommendations. Also part of the delegation was Colombia’s Minister of Finance and Public Credit Mauricio Cardenas Santamaria, who advocated strongly for Colombia to accede prior to the end of Colombia’s President Juan Manuel Santos term this summer.

USCIB also had a meeting with ANDI, the National Business Association of Colombia, to discuss outstanding issues for business. Bruce Mac Master, president of ANDI led a delegation of Colombian CEOs in this meeting with the U.S. business community, in an effort to make progress on issues like trucking and pharmaceuticals.

Hampl also addressed these critical issues to U.S. business with Colombian civil society in an interview on Colombian radio last week. The main concerns raised during that conversation were on the timing of the accession process given the expiring term of President Santos, and substantive issues on pharmaceuticals, including patents.

“The U.S. business community remains firm on the outstanding issues,” said Hampl. “The OECD is a group of like-minded countries when it comes to believing in open trade and investment and innovation. It is important for any new members to share those views. The Colombian market is important to U.S. industry and we value the U.S. relationship with Colombia, so we look forward to Colombia making the necessary regulatory changes to allow the accession process move forward.”

Post-Brexit Trade: An Opportunity to Set New Standards

Published on March 12, 2018

By Chris Southworth

As the United Kingdom prepares to leave the European Union, the country is at a crossroads. To deliver success means delivering trade deals fast, and the only way to do that is to be more innovative, explains Chris Southworth, the secretary general of ICC UK, USCIB’s partner in the global International Chamber of Commerce network. This was also the topic of a recent ICC UK podcast featuring USCIB’s Rob Mulligan. The views presented here are the author’s own and do not necessarily reflect USCIB policy positions.

ICC UK Secretary General Chris Southworth

The UK government has committed itself to renegotiate its entire stock of trade relationships and bring home the largest number of trade deals ever delivered in a short space of time – the task has no precedent.

The first round of post Brexit deals will be with 88 countries and nine trade blocs, covering non-EU countries with EU deals – almost half the world. The scale and pace at which this task must be delivered presents a unique opportunity to be innovative – it’s the only way the government will deliver on its promises of a “free trade model that works for everyone.”

The government has begun the process of passing legislation to set up a new Trade Remedies Authority, share customs data and maintain an open procurement market, but there is currently no proposal for how the government will deliver so many deals in such a short space of time. The government says that the 60-plus countries with EU deals will roll over on the same trade terms, so no extra consultation is required, but that is highly unlikely according to the experts.

In a rare display of unity, business groups, NGOs, unions and consumer groups all agree that to move forward on trade, the UK needs a more transparent, inclusive and democratic framework to handle trade policy if there is any chance of ensuring trade benefits everyone.

The UK has become one of the most centralized G7 countries, with wide disparities across its regions, a stubborn trade deficit and a history of under-performance on productivity and competitiveness. London now dominates the UK economy, with every other region a long way behind. Brexit presents a golden opportunity for trade to play a central role in boosting regional economies as well as address the frustration and disparity that is all too clear to spot, but only if the mode of engagement changes.

If the government wants to deliver new trade deals at the pace and scale required, fresh thinking and reinvented processes are required – those who generate trade will need to be consulted on what works, not only because it is necessary, but because it is democratic. To deliver a trade model that works for everyone means giving stakeholders a say in the decisions.

The Trade Bill

The Trade Bill – currently under review in Parliament – sets out an initial framework for an independent trade policy: a Trade Remedies Authority, an open procurement market, rolling over terms with countries with third party EU agreements sharing customs data. Controversially, the bill also proposes “Henry VIII” powers giving the government the ability to overrule Parliament.

Being a member of the EU means that the UK has no formal structures or procedures for reviewing treaties, and Parliament does not have to debate, vote on or approve deals. Trade agreements are scrutinized via the usual Parliamentary means such as written questions and answers, internal debates and select committee inquiries.

If government negotiators have any chance of delivering trade deals on the scale and pace required, there needs to be a more structured approach that provides organised forums for the international community, business, unions, NGOs and civil society organisations to engage on the issues and make consensus based decisions.

There is a myth that consultation and transparency slows the decision-making process. But without dialogue there is scope for mistrust to grow, which if unchecked, has more than enough weight to derail trade negotiations – as we saw with the lack of public support for the Transatlantic Trade and Investment Partnership (TTIP). As hard is may be to hear, public services and food standards trumped trade and that is exactly how people expressed their views.

The TTIP negotiations collapsed, losing five to seven years of negotiation with no sign of an opportunity to restart discussions. It was a colossal waste of resources that could have been easily avoided if the engagement process had been better organised and more inclusive from the start.

The Canada-EU trade agreement (CETA) very nearly went the same way. The issues surrounding Wallonia’s role in Belgium that almost derailed CETA could very well apply in a host of UK regions. Good-quality engagement throughout the decision-making process would prevent such scenarios happening in the future and most importantly give people a stake in making trade a success.

Trade policy now influences all walks of life – it’s not possible to separate trade from public policy and it’s imperative to have the public on board if deals need to be done.

International Models

The US trade model is often cited as an option for the UK but it’s not the only country that has a better system of engagement. New Zealand has successfully integrated private sector groups, civil society and the Maori – its indigenous population – into its model for developing trade positions.

Beyond regular public meetings regarding trade policy, the government established a ministerial advisory group to oversee high-level consultations. The group consists of representatives from key export sectors, NGOs, business and minority groups to reflect the overall priorities of New Zealand’s trade agenda, and to provide feedback to the nation’s minister of trade. In short, it’s a more inclusive system.

The scale of the UK challenge provides an opportunity to set a new international benchmark – no country has it completely right. A deal with 27 EU countries, followed by 60-plus countries with EU agreements, and then the rest of the world is a lot of ground to cover in a short space of time – if the UK government is going to return the benefits of Brexit as promised.

In fact, the success or failure of Brexit will hinge on the government’s ability to deliver trade deals – this is central pillar of the Brexit strategy to offset costs incurred from leaving the EU, especially for SMEs. To do that, it means breaking from the past, opening up and building a model of engagement that is more transparent, consensual and democratic in approach – and doing it fast!

Published March 12, 2018