What State Policy Makers Need to Know Trade Policy Leadership Seminar Atlanta, GA ~ December 10, 2008
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1 What State Policy Makers Need to Know Trade Policy Leadership Seminar Atlanta, GA ~ December 10, 2008 Robert Stumberg Harrison Institute for Public Law Georgetown University Law Center
2 Need to know Empower your state Constrain your state
3 Need to know Empower your state Constrain your state
4 Need to know Empower your state Constrain your state
5 Need to know Empower your state Constrain your state
6 Need to know Empower your state Constrain your state
7 Need to know Empower your state Constrain your state State
8 Need to know Empower your state Constrain your state National State
9 International Need to know Empower your state Constrain your state National State
10
11 International
12 U.S. Trade Agreements
13 U.S. Trade Agreements U.S. Trade Agreements WTO nations 20 agreements Trade disputes - yes Investor disputes - no Ongoing negotiations - yes
14 U.S. Trade Agreements U.S. Trade Agreements WTO nations 20 agreements Trade disputes - yes Investor disputes - no Ongoing negotiations - yes FTAs pending 20+ chapters Trade disputes - yes Investor arbitration - yes Ongoing negotiations - yes
15 U.S. Trade Agreements U.S. Trade Agreements WTO nations 20 agreements Trade disputes - yes Investor disputes - no Ongoing negotiations - yes FTAs pending 20+ chapters Trade disputes - yes Investor arbitration - yes Ongoing negotiations - yes
16 U.S. Trade Agreements U.S. Trade Agreements WTO nations 20 agreements Trade disputes - yes Investor disputes - no Ongoing negotiations - yes FTAs pending 20+ chapters Trade disputes - yes Investor arbitration - yes Ongoing negotiations - yes
17 U.S. Trade Agreements U.S. Trade Agreements WTO nations 20 agreements Trade disputes - yes Investor disputes - no Ongoing negotiations - yes FTAs pending 20+ chapters Trade disputes - yes Investor arbitration - yes Ongoing negotiations - yes BITs - 39 US treaties Single function Trade disputes - no Investor arbitration - yes Ongoing negotiations - yes
18 U.S. Trade Agreements U.S. Trade Agreements WTO nations 20 agreements Trade disputes - yes Investor disputes - no Ongoing negotiations - yes FTAs pending 20+ chapters Trade disputes - yes Investor arbitration - yes Ongoing negotiations - yes BITs - 39 US treaties Single function Trade disputes - no Investor arbitration - yes Ongoing negotiations - yes
19 Agreements that Affect States Directly
20 Agreements that Affect States Directly Agreements Trade Rules
21 Agreements that Affect States Directly Agreements Goods Services Trade Rules Procurement Subsidies Investment
22 Agreements that Affect States Directly Agreements Goods Services Trade Rules Procurement Subsidies Investment WTO Agreements x x x x
23 Agreements that Affect States Directly Agreements Goods Services Trade Rules Procurement Subsidies Investment WTO Agreements x x x x Free Trade Agreements x x x x
24 Agreements that Affect States Directly Agreements Goods Services Trade Rules Procurement Subsidies Investment WTO Agreements x x x x Free Trade Agreements x x x x Bilateral Investment Treaties x
25 Example - trade rules & fuels Selected Policy Options Trade Agreements Subsidies Goods Services Procurem t Investment Tariffs Taxation & regulation Market participation Research & development
26 Example - trade rules & fuels Selected Policy Options Tariffs Taxation & regulation Market participation Research & development Trade Agreements Subsidies Goods Services Procurem t Investment T D D R S D R S D D D R D D Examples of Trade rules Limits on tariffs (T) Prohibitions on discrimination (D) Limits on non-discriminatory taxes and regulations Relevance to the service (proposed) (R) Based on international standards (S)
27 Example - trade rules & fuels Selected Policy Options Tariffs Taxation & regulation Market participation Research & development Trade Agreements Subsidies Goods Services Procurem t Investment T D D R S D R S D D D R D D Examples of Trade rules Limits on tariffs (T) Prohibitions on discrimination (D) Limits on non-discriminatory taxes and regulations Relevance to the service (proposed) (R) Based on international standards (S)
28 Example - trade rules & fuels Selected Policy Options Tariffs Taxation & regulation Market participation Research & development Trade Agreements Subsidies Goods Services Procurem t Investment T D D R S D R S D D D R D D Examples of Trade rules Limits on tariffs (T) Prohibitions on discrimination (D) Limits on non-discriminatory taxes and regulations Relevance to the service (proposed) (R) Based on international standards (S)
29 Example - trade rules & fuels Selected Policy Options Tariffs Taxation & regulation Market participation Research & development Trade Agreements Subsidies Goods Services Procurem t Investment T D D R S D R S D D D R D D Examples of Trade rules Limits on tariffs (T) Prohibitions on discrimination (D) Limits on non-discriminatory taxes and regulations Relevance to the service (proposed) (R) Based on international standards (S)
30 Example - trade rules & fuels Selected Policy Options Tariffs Taxation & regulation Market participation Research & development Trade Agreements Subsidies Goods Services Procurem t Investment T D D R S D R S D D D R D D Examples of Trade rules Limits on tariffs (T) Prohibitions on discrimination (D) Limits on non-discriminatory taxes and regulations Relevance to the service (proposed) (R) Based on international standards (S)
31 Example - trade rules & fuels Selected Policy Options Tariffs Taxation & regulation Market participation Research & development Trade Agreements Subsidies Goods Services Procurem t Investment T D D R S D R S D D D R D D Examples of Trade rules Limits on tariffs (T) Prohibitions on discrimination (D) Limits on non-discriminatory taxes and regulations Relevance to the service (proposed) (R) Based on international standards (S)
32 Example - trade rules & fuels Selected Policy Options Tariffs Taxation & regulation Market participation Research & development Trade Agreements Subsidies Goods Services Procurem t Investment T D D R S D R S D D D R D D Examples of Trade rules Limits on tariffs (T) Prohibitions on discrimination (D) Limits on non-discriminatory taxes and regulations Relevance to the service (proposed) (R) Based on international standards (S)
33 Example - trade rules & fuels Selected Policy Options Tariffs Taxation & regulation Market participation Research & development Trade Agreements Subsidies Goods Services Procurem t Investment T D D R S D R S D D D R D D Examples of Trade rules Limits on tariffs (T) Prohibitions on discrimination (D) Limits on non-discriminatory taxes and regulations Relevance to the service (proposed) (R) Based on international standards (S)
34 Biofuels & trade policy 18 Trade Rules that Cover Fuel Measures These selected trade rules... Apply to these transportation fuel policies Rule Except? Tariffs Taxes Regulations Mkt. Part. Subsidies Tariff schedule E -.54/gal FTAs X E - 2.5% ad valorum FTAs X Prohibition of discrimination GATT - NT taxes / like or substitutable health, consv X GATT - NT regs / like or substitutable health, consv X GATT - Mixtures / domestic content health, consv X X GATS - NT like services/suppliers health X X X GPA - NT goods/services/suppliers n.a. X SCM - domestic content (red light) expired X SCM - serious prejudice (yellow light) expired X INV - NT investors/investments subsidies X X X Limits on non-discriminatory domestic law making TBT - necessity test / tech regs no X X TBT - use int l standards appropriate X X GATS - objectivity test health X X X GATS - relevance test health X X X GATS - pre-established health X X X GATS - simplicity test / licensing health X X X GATS - consider int l standards health X X X INV - minimum standard of treatment subsidies X X X
35 Trade policy focus: Jobs & promoting exports International National State
36 Trade policy focus: Jobs & promoting exports International Subsidy negotiations US proposals - Prohibit: Operating losses Non-standard loans Non-standard equity National State
37 Trade policy focus: Jobs & promoting exports International National State Subsidy negotiations US proposals - Prohibit: Operating losses Non-standard loans Non-standard equity Services negotiations GATS commitment - Research & development
38 Trade policy focus: Jobs & promoting exports International National State Subsidy negotiations US proposals - Prohibit: Operating losses Non-standard loans Non-standard equity Services negotiations GATS commitment - Research & development Data for developers Geographic coding, but No import data No service data
39 Trade policy focus: Foreign investor rights International National State
40 Trade policy focus: Foreign investor rights International US lawyers invent clarity Expropriation Minimum standard of treatment National State
41 Trade policy focus: Foreign investor rights International National US lawyers invent clarity Expropriation Minimum standard of treatment New negotiations China India State
42 Trade policy focus: Climate & energy International National State
43 Trade policy focus: Climate & energy International Cap & trade Regional state markets: WCI, RGGI National State
44 Trade policy focus: Climate & energy International National Cap & trade Regional state markets: WCI, RGGI Transportation fuels Low-carbon fuel standard - CA, MA International standard setting State
45 Trade policy focus: Domestic regulation International National State
46 Trade policy focus: Domestic regulation International Goods Transparency of law-making Global database National State
47 Trade policy focus: Domestic regulation International National Goods Transparency of law-making Global database Services Publication mandate (proposed) State
48 WORLD TRADE ORGANIZATION Committee on Technical Barriers to Trade G/TBT/N/USA/ January 2008 ( ) Original: English NOTIFICATION The following notification is being circulated in accordance with Article Member to Agreement notifying: UNITED STATES If applicable, name of local government involved (Articles 3.2 and 7.2): Vermont State of 2. Agency responsible: State of Vermont (351) Name and address (including telephone and fax numbers, and web-site addresses, if available) of agency or authority designated to handle comments regarding the notification shall be indicated if different from above: Senator Virginia Lyons 241 White Birch Lane Williston, VT USA Tel: +(802) url: 3. Notified under Article [ ], [ ], [ ], [ ], other: Products covered (HS or CCCN where applicable, otherwise national tariff heading. ICS numbers may be provided in addition, where applicable): Electronic devices (ICS: , ) 5. Title, number of pages and language(s) of the notified document: An Act Relating to the Disposal of Electronic Waste, S256 (14 pages, in English). 6. Description of content: Proposes a system for the collection and recycling of electronic devices. 7. Objective and rationale, including the nature of urgent problems where applicable: Protection of human health and the environment 8. Relevant documents: - 9. Proposed date of adoption: Proposed date of entry into force: - 1 July Final date for comments: Texts available from: National enquiry point [ X ] or address, telephone and fax numbers, and web-site addresses, if available of the other body: Internet URLs:
49 WORLD TRADE ORGANIZATION Committee on Technical Barriers to Trade NOTIFICATION G/TBT/N/USA/ January 2008 ( ) Original: English The following notification is being circulated in accordance with Article Member to Agreement notifying: UNITED STATES If applicable, name of local government involved (Articles 3.2 and 7.2): Vermont State of 2. Agency responsible: State of Vermont (351) Name and address (including telephone and fax numbers, and web-site addresses, if available) of agency or authority designated to handle comments regarding the notification shall be indicated if different from above: Senator Virginia Lyons 241 White Birch Lane Williston, VT USA Tel: +(802) url: 3. Notified under Article [ ], [ ], [ ], [ ], other: Products covered (HS or CCCN where applicable, otherwise national tariff heading. ICS numbers may be provided in addition, where applicable): Electronic devices (ICS: , ) WPDR draft Mandate to publish, in addition to laws, details about laws: licensing requirements qualification requirements technical standards appeal procedures enforcement process public involvement 5. Title, number of pages and language(s) of the notified document: An Act Relating to the Disposal of Electronic Waste, S256 (14 pages, in English). 6. Description of content: Proposes a system for the collection and recycling of electronic devices. 7. Objective and rationale, including the nature of urgent problems where applicable: Protection of human health and the environment 8. Relevant documents: - 9. Proposed date of adoption: Proposed date of entry into force: - 1 July Final date for comments: Texts available from: National enquiry point [ X ] or address, telephone and fax numbers, and web-site addresses, if available of the other body: Internet URLs:
50
51 For Bias Against the People
52 Rufus Peckham 1905 Lochner v. New York Economic regulation interferes with "the freedom of master and employee to contract with each other"
53 Rufus Peckham Lochner Era 1905 Lochner v. New York Economic regulation interferes with "the freedom of master and employee to contract with each other"
54 Rufus Peckham Lochner Era Great Depression Lochner v. New York Economic regulation interferes with "the freedom of master and employee to contract with each other"
55 Rufus Peckham Owen Roberts Lochner Era Great Depression Lochner v. New York Economic regulation interferes with "the freedom of master and employee to contract with each other" West Coast Hotel v. Parrish "Compelling" state interest in protecting workers from the "exploitation" of "unconscionable employers"
56
57 Since 1937 In the United States Constitutional revolution - Due process is not economic - Burden on business not a test - legislation need only be rational, not arbitrary In other nations Repudiated the US model Canada, South Africa & others
58 Since 1937 In the United States Constitutional revolution - Due process is not economic - Burden on business not a test - legislation need only be rational, not arbitrary In other nations Repudiated the US model Canada, South Africa & others
59 Necessity test... ensure that [regulations] are no more burdensome than necessary to achieve domestic policy objectives, including to ensure the quality of the service...
60 Necessity test... ensure that [regulations] are no more burdensome than necessary to achieve domestic policy objectives, including to ensure the quality of the service...
61 Necessity test... ensure that [regulations] are no more burdensome than necessary to achieve domestic policy objectives, including to ensure the quality of the service... Procedural necessity test... ensure that licensing procedures... are as simple as possible...
62 Necessity test... ensure that [regulations] are no more burdensome than necessary to achieve domestic policy objectives, including to ensure the quality of the service... Procedural necessity test... ensure that licensing procedures... are as simple as possible... Battery of tests 11. Measures relating to licensing requirements and procedures, qualification requirements and procedures, and technical standards shall be preestablished, based on objective criteria and relevant to the supply of the services to which they apply.
63 Pre-established test Measures... shall be... pre-established... Stages of licensing process: operating a dam, power plant, etc. Before application Application Before approval Before renewal
64 Pre-established test Measures... shall be... pre-established... Stages of licensing process: operating a dam, power plant, etc. Before application Application Before approval Before renewal Government changes regulations Government denies based on community opposition Government imposes conditions for license
65 Pre-established test Measures... shall be... pre-established... Stages of licensing process: operating a dam, power plant, etc. Before application Application Before approval Before renewal Government changes regulations Government denies based on community opposition Government imposes conditions for license
66 Pre-established test Measures... shall be... pre-established... Stages of licensing process: operating a dam, power plant, etc. Before application Application Before approval Before renewal Potential meaning of proposed discipline Government changes regulations Government denies based on community opposition Government imposes conditions for license
67 Objective test Measures... shall be... based on objective criteria... Least Intrusive Most Intrusive
68 Objective test Measures... shall be... based on objective criteria... Not Arbitrary Least Intrusive Most Intrusive
69 Objective test Measures... shall be... based on objective criteria... Not Arbitrary Not Biased Least Intrusive Most Intrusive
70 Objective test Measures... shall be... based on objective criteria... Not Arbitrary Not Biased Relevant to Service Least Intrusive Most Intrusive
71 Objective test Measures... shall be... based on objective criteria... Not Arbitrary Not Biased Relevant to Service Not Subjective Least Intrusive Most Intrusive
72 Objective test Measures... shall be... based on objective criteria... Not Arbitrary Not Biased Relevant to Service Not Subjective Least Trade- Restrictive Least Intrusive Most Intrusive
73 Objective test Measures... shall be... based on objective criteria... Not Arbitrary Not Biased Relevant to Service Not Subjective Least Trade- Restrictive Least Intrusive Most Intrusive
74 Relevance test Measures... shall be... relevant to the supply of the services to which they apply. Licensing requirements for coastal development Most relevant to service Intrinsic to service External to service Least relevant to service
75 Relevance test Measures... shall be... relevant to the supply of the services to which they apply. Licensing requirements for coastal development Most relevant to service Intrinsic to service External to service Least relevant to service Locate near infrastructure Provide storage capacity
76 Relevance test Measures... shall be... relevant to the supply of the services to which they apply. Licensing requirements for coastal development Most relevant to service Intrinsic to service External to service Least relevant to service Locate near infrastructure Provide storage capacity Preserve environment Preserve coastal access
77 Relevance test Measures... shall be... relevant to the supply of the services to which they apply. Licensing requirements for coastal development Most relevant to service Intrinsic to service External to service Least relevant to service Locate near infrastructure Provide storage capacity Preserve environment Preserve coastal access Conserve historic values Preserve scenic vistas
78 Relevance test Measures... shall be... relevant to the supply of the services to which they apply. Licensing requirements for coastal development Most relevant to service Intrinsic to service External to service Least relevant to service Locate near infrastructure Provide storage capacity Preserve environment Preserve coastal access Conserve historic values Preserve scenic vistas
79
80
81 Showdown?
82 Showdown? or compromise? Remove or clarify disciplines: Simplicity Pre-establishment Objectivity Relevance Transparency
83 Capacity to Participate International National State
84 Capacity to Participate International National State
85 Capacity to Participate International Monitoring & analysis National State
86 Capacity to Participate International Monitoring & analysis Forum for consultation National State
87 Capacity to Participate International Monitoring & analysis Forum for consultation National Multi-state working groups State
88 Capacity to Participate International Monitoring & analysis Forum for consultation National Multi-state working groups State-level oversight State
89 Contact: Robert Stumberg Georgetown University Law Center
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