The Windsor Framework (WF) concluded between the UK and EU to resolve the difficulties associated with the Irish Border reflects a significant compromise, with the UK giving the most ground. The brainchild of a more pliant and technocratic Prime Minister than his two predecessors, Rishi Sunak’s WF is in many respects an agreement that should never have been needed. The new arrangement essentially compels the EU to do what it should have done under the original Northern Ireland Protocol, i.e. impose no unreasonable barriers to trade between Great Britain (GB) and Northern Ireland (NI) while maintaining sufficient safeguards that its Single Market would not be flooded with UK goods.
Category: David Collins (page 1 of 2)
The Energy Charter Treaty (ECT) is a multi-party investment treaty covering investment in the energy sector. Established in the 1990s, the ECT has over 50 signatories, including the UK. The ECT contains many of the traditional protections for foreign investment found in international investment agreements (IIAs), and much like international investment law generally, the treaty has been subjected to widespread criticism in recent years. The ECT has been particularly vilified for its alleged failure to deal with climate change by maintaining extensive protections for industries that supposedly contribute to this global problem.
Jed Odermatt and David Seymour
On 23 September 2022 the City Law School held its Research & Enterprise Day on the theme of Legal London. The event was an opportunity to highlight the research, teaching and scholarship at City Law School and to develop links across the University, professions and the wider community.
The 12th World Trade Organization (WTO) Ministerial Conference took place in Geneva last week with representatives of all 164 member countries in attendance – collectively comprising the WTO’s highest decision-making body. The stakes were high – there have been no major multilateral trade initiatives in decades, leaving the 27-year-old organization struggling to justify its existence in a world increasingly dominated by bilateralism or worse, economic isolationism. In the aftermath of the Covid-19 pandemic and the ongoing war in Ukraine, both of which have dealt significant blows to standards of living worldwide, the WTO was under much pressure to deliver tangible progress in trade liberalization. In the minds of many, failure was simply not an option.
Shortly after Russia’s invasion of Ukraine, several nations, led by Canada and Ukraine, suspended the application of the World Trade Organization’s Most Favoured Nation (MFN) treatment to Russian goods. MFN is a foundational principle of WTO law, contained in Article I of the General Agreement on Tariffs and Trade (GATT). It promises that all WTO members will receive the same treatment as each other – the lowest tariffs on all goods offered by each WTO member will be made available to all. The effect of this trade sanction against Russia will not be lost on its president – Vladimir Putin’s masters’ thesis was allegedly on the importance of the MFN principle to international trade. The actual impact of the revocation of MFN on Russia may be less significant and the legal issues behind it are complex and troubling.
As the UK continues to establish its own trade policy, it is vital that legal services, which provide more than £60 billion per year to the UK’s economy, are paid sufficient attention in trade negotiations. UK legal expertise is high demand around the world and the service of international clients is a key source of revenue for many UK lawyers. Lawyers rely on the possibility of short-term visits to foreign jurisdictions for the purposes of providing legal advice (sometimes described as fly-in fly-out, or FIFO) as well as temporary secondment/establishment rights in a jurisdiction. While there are many lucrative, fast-growing markets in Asia, the ability for lawyers to continue to provide advice in these ways in the EU is an issue of some importance. The Lawyer’s Establishment Directive ceased to apply to UK lawyers at the end of the transition period. Today UK lawyers seeking to provide legal advice in the EU must deal with 27 separate regulatory regimes.
Fortunately, the principle of home title practice was recognised in the EU-UK Trade and Cooperation Agreement (TCA), finalized at the end of last year. It should be pointed out that the inclusion of any material on legal services in a Free Trade Agreement is in itself a achievement since historically they have been ignored in international negotiations, with the Comprehensive Progressive Trans-Pacific Partnership (CPTPP) and the agreement in principle between the UK and Australia other notable exceptions. Under the home title principle, parties to the TCA agree to permit practice by lawyers of the other party under their home jurisdiction professional qualification with regards to advice on home country and public international law, as well as arbitration, conciliation and mediation. On their own these are already sizable areas of the legal services market for most UK lawyers serving clients in the EU.
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Formal talks on the UK’s accession to the 11-nation Comprehensive Progressive Trans-Pacific Partnership (CPTPP) began this week after several months of preliminary negotiations. The fast-growing Asia-Pacific region served by the CPTPP promises to eclipse the economic activity of the rest of Europe, if not the world, well into the 21st Century. More than that, the CPTPP may be poised to establish itself as a near-global regime for trade governance in conjunction, or perhaps in competition with the 164 nation World Trade Organization (WTO). Covering matters such as tariff and non-tariff barriers on goods, market access for services, intellectual property and subsidies like the WTO, the CPTPP also has rules on digital trade and investment which the 26-year-old WTO, with all of the problems associated with needing global consensus, does not. Whereas momentum in multilateral trade liberalisation has stalled in recent years with little to no progress on the key issues of agricultural subsidies, fisheries or dispute settlement, interest in the CPTPP is picking up speed. Continue reading
On the occasion of the UK’s ongoing re-negotiation of the placeholding UK-Canada Free Trade Continuity Agreement rolled over last year from the Comprehensive Economic and Trade Agreement (CETA) between Canada and the EU, it is useful to draw attention to Canada’s newly issued model Foreign Investment Promotion Agreement (FIPA). Upgraded from the 2014 version, the 2021 model FIPA sets out Canada’s starting asks for its trading partners in the field of investment – a key feature of modern Free Trade Agreements (FTAs) as well as a vital contributor to the economies of both countries. In 2019, the inward stock of foreign direct investment (FDI) in the UK from Canada was £20.0 billion accounting for 1.3% of the total UK inward FDI stock.
The Comprehensive Progressive Trans-Pacific Partnership (CPTPP) is a comprehensive free trade agreement which went into force in December 2018. Its membership consists of 11 Pacific Rim countries: Australia, Canada, Japan, Mexico, New Zealand, Singapore, Vietnam, Brunei, Chile, Malaysia and Peru, together comprising roughly 13 per cent of the world’s GDP. Despite having no geographical presence in the Pacific (unless you include the British Overseas Territory the Pitcairn Islands), the UK submitted formal notice to join the CPTPP in February 2021, a centrepiece of its ‘Global Britain’ trade strategy.
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