Legal Framework for Cross-Regional Networks: The Case of Services and Migration

Paper prepared by Marion Panizzon and Charlotte Sieber-Gasser for the International Conference on the Political Economy of Liberalising Trade in Services, Hebrew University of Jerusalem, 14-15 June 2010 Recent literature has shed light on the economic potential of cross-border networks. These networks, consisting of expatriates and their acquaintances from abroad and at home, provide the basis for the creation of cross-border value added chains and therewith the means for turning brain drain into brain circulation. Both aspects are potentially valuable for economic growth in the developing world. Unilateral co-development policies operating through co-funding of expatriate business ventures, but also bilateral agreements liberalising circular migration for a limited set of per-sons testify to the increasing awareness of governments about the potential, which expatriate networks hold for economic growth in developing countries. Whereas such punctual efforts are valuable, viewed from a long term perspective, these top-down, government mandated Diaspora stimulation programs, will not replace, this paper argues, the market-driven liberalisation of infrastructure and other services in developing countries. Nor will they carry, in the case of circular labour migration, the political momentum to liberalise labour market admission for those non-nationals, who will eventually emerge as the future transnational entrepreneurs. It will take a combination of mode 4 and infrastructure services openings-cum regulation for countries at both sides of the spectrum to provide the basis and precondition for transnational business and entrepreneurial networks to emerge and translate into cross-border, value added production chains. Two key issues are of particular relevance in this context: (i) the services sector, especially in infrastructure, tends to suffer from inefficiencies, particularly in developing countries, and (ii) labour migration, a highly complex issue, still faces disproportionately rigid barriers despite well-documented global welfare gains. Both are hindrances for emerging markets to fully take advantage of the potential of these cross-border networks. Adapting the legal framework for enhancing the regulatory and institutional frameworks for services trade, especially in infrastructure services sectors (ISS) and labour migration could provide the incentives necessary for brain circulation and strengthen cross-border value added chains by lowering transaction costs. This paper analyses the shortfalls of the global legal framework – the shallow status quo of GATS commitments in ISS and mode 4 particular – in relation to stimulating brain circulation and the creation of cross-border value added chains in emerging markets. It highlights the necessity of adapting the legal framework, both on the global and the regional level, to stimulate broader and wider market access in the four key ISS sectors (telecommunications, transport, professional and financial services) in developing countries, as domestic supply capacity, global competitiveness and economic diversification in ISS sectors are necessary for mobilising expatriate re-turns, both physical and virtual. The paper argues that industrialised, labour receiving countries need to offer mode 4 market access to wider categories of persons, especially to students, graduate trainees and young professionals from abroad. Further-more, free trade in semi-finished products and mode 4 market access are crucial for the creation of cross-border value added chains across the developing world. Finally, the paper discusses on the basis of a case study on Jordan why the key features of trade agreements, which promote circular migration and the creation of cross-border value added chains, consist of trade liberalisation in services and liberal migration policies.

Legal Implications of the Use of Export Taxes in Addressing Carbon Leakage: Competing Border Adjustment Measures

The prevailing uncertainties about the future of the post-Kyoto international legal framework for climate mitigation and adaptation increase the likelihood of unilateral trade interventions that aim to address climate policy concerns, as exemplified by the controversial European Union initiative to include the aviation industry in its emissions trading system. The emerging literature suggests that border carbon adjustment (BCA) measures imposed by importing countries would lead to substantial legal complications in relation to World Trade Organization law and hence to possible trade disputes. Lack of legal clarity on BCAs is exacerbated by potential counter or pre-emptive export restrictions that exporting countries might impose on carbon-intensive products. In this context, this paper investigates the interface between legal and welfare implications of competing unilateral BCA measures. It argues that carbon export taxes will be an inevitable part of the future climate change regime in the absence of a multilateral agreement. It also describes the channels through which competing BCAs may lead to trade conflicts and political complications as a result of their distributional and welfare impacts at the domestic and global levels.

Online privacy concerns and legal assurance: a user perspective

Since the emergence of the Internet and Social Media, privacy concerns and need for regulation in this area have been a frequent subject on the agenda of numerous stakeholders and policy-makers worldwide. Contributing to this debate, this paper builds on the responses of 553 Internet users to uncover users’ current privacy concerns and their attitudes towards legal assurances in this context. Our findings suggest that users have a complex attitude towards these issues. While they express strong concerns about privacy when asked directly, they often have difficulties formulating the exact nature of these concerns. In the Facebook context, Facebook itself is often mentioned as the primary source of threat, closely followed by marketing organizations. Users feel ill-protected by existing legal framework, especially when using Social Networking Sites. Reasons include common beliefs that the law is unable to address complexities of the Internet; local character of laws; possibilities to disregard the law, particularly since enforcement is difficult. Overall, positive changes in legal framework are desirable, with many respondents willing to pay more in taxes to ensure progress in this area.

Capitalisation of Experiences of the Swiss Support to Sustainable Management of Natural Resources (SMNR) in Bulgaria

Following the collapse of the communist regime in 1989, Bulgaria has undergone dramatic political, economic and social transformations. The transition process of the past two decades was characterized by several reforms to support democratisation of the political system and the functioning of a free-market economy. Since 1992, Switzerland has been active in Bulgaria providing assistance to the transition process, with support to Sustainable Management of Natural Resources (SMNR) starting in 1995. The SMNR Capitalisation of Experiences (CapEx) took place between March and September 2007, in the context of SDC phasing out its programmes in Bulgaria by the end of 2007 due to the country’s accession to the European Union. The CapEx exercise has culminated in the identification of 17 lessons learned. In the view of the CapEx team, many of these lessons are relevant for countries that are in the process of joining the EU, facing similar democratisation challenges as Bulgaria. Overall, the Swiss SMNR projects have been effective entry points to support areas that are crucial to democratic transitions, namely participation in public goods management, decentralisation, human capacity development in research and management, and preparation for EU membership. The specificity of the Swiss support stems from an approach that combines a long-term commitment with a clear thematic focus (forestry, biodiversity conservation and organic agriculture). The multistakeholder approach and diversification of support between local, regional and national levels are also important elements that contributed to make a difference in relation to other donors supporting the Bulgarian transition. At the institutional level, there are a number of challenges where the contribution of SMNR activities was only modest, namely improving the legal framework and creating more transparency and accountability, both of which are time and resource-consuming processes. In addition, the emergence of competent and sustainable non-government organisations (NGOs) is a complex process that requires support to membership based organisations, a challenge that was hardly met in the case of SMNR. Finally, reform of government institutions involved in management of natural resources is difficult to achieve via project support only, as it requires leverage and commitment at the level of policy dialogue. At the programme management level, the CapEx team notes that corruption was not systematically addressed in SMNR projects, indicating that more attention should be given to this issue at the outset of any new project.

Subsidies, Clean Energy, and Climate Change

Estimates show that fossil fuel subsidies average USD 400–600 billion annually worldwide while renewable energy (RE) subsidies amounted to USD 66 billion in 2010 and are predicted to rise to USD 250 billion annually by 2035. Domestic political rationales for energy subsidies include promoting innovation, job creation and economic growth, energy security, and independence. Energy subsidies may also serve social and environmental goals. Whether and to what extent subsidies are effective to achieve these goals or instead lead to market distortions is a matter of much debate and the trade effects of energy subsidies are complex. This paper offers an overview of the types of energy subsidies that are used in the conventional and renewable energy sectors, and their relationship with climate change, in particular greenhouse gas emissions. While the WTO’s Agreement on Subsidies and Countervailing Measures (ASCM) is mostly concerned with harm to competitors, this paper considers the extent to which the Agreement could also discipline subsidies that cause harm to the environment as a global common. Beyond the existing legal framework, this paper surveys a number of alternatives for improving the ability of subsidies disciplines to internalize climate change costs of energy production and consumption. One option is a new multilateral agreement on subsidies or trade remedies (with an appropriate carve-out in the WTO regime to allow for it if such an agreement is concluded outside it). Alternatively, climate change-related subsidies could be included as part of another multilateral regime or as part of regional agreements. A third approach would be to incorporate rules on energy subsidies in sectorial agreements, including a Sustainable Energy Trade Agreement such as has been proposed in other ICTSD studies.

Analysis of the prospects for updating the trade pillar of the European Union-Chile Association Agreement

The perception of the present state of trade relations with Chile is obscured by a lack of adequate understanding of its legal framework as well as of the policy behind it. This study attempts to clarify the present state of and future prospects for trade between the EU and Chile through an examination of previous agreements and the EU’s new approach to trade liberalisation. The authors agree with the large consensus existing on both the EU and Chilean sides regarding the efficacy of the Association Agreement, but note that any extension of an agreement with Chile should capture the spirit of older EU agreements rather than simply following the ‘NAFTA route’. The study also includes a comparative analysis between the EU-Chile agreement and current trade agreements being negotiated by the EU and Chile with third countries.

A high-resolution soil erosion risk map of Switzerland as strategic policy support system

Soil erosion models and soil erosion risk maps are often used as indicators to assess potential soil erosion in order to assist policy decisions. This paper shows the scientific basis of the soil erosion risk map of Switzerland and its application in policy and practice. Linking a USLE/RUSLE-based model approach (AVErosion) founded on multiple flow algorithms and the unit contributing area concept with an extremely precise and high-resolution digital terrain model (2 m × 2 m grid) using GIS allows for a realistic assessment of the potential soil erosion risk, on single plots, i.e. uniform and comprehensive for the agricultural area of Switzerland (862,579 ha in the valley area and the lower mountain regions). The national or small-scale soil erosion prognosis has thus reached a level heretofore possible only in smaller catchment areas or single plots. Validation was carried out using soil loss data from soil erosion damage mappings in the field from long-term monitoring in different test areas. 45% of the evaluated agricultural area of Switzerland was classified as low potential erosion risk, 12% as moderate potential erosion risk, and 43% as high potential erosion risk. However, many of the areas classified as high potential erosion risk are located at the transition from valley to mountain zone, where many areas are used as permanent grassland, which drastically lowers their current erosion risk. The present soil erosion risk map serves on the one hand to identify and prioritise the high-erosion risk areas, and on the other hand to promote awareness amongst farmers and authorities. It was published on the internet and will be made available to the authorities in digital form. It is intended as a tool for simplifying and standardising enforcement of the legal framework for soil erosion prevention in Switzerland. The work therefore provides a successful example of cooperation between science, policy and practice.

Rechtsmittel gegen Entscheide des juge d'appui bei der internationalen Schiedsgerichtsbarkeit der Schweiz

The author examines whether and by which means the decisions handed down by the State judge giving his support to the arbitral proceeding (juge d'appui) may be appealed. Every relevant Article in the PILA (Private International Law Act) is addressed and analyzed in this regard (Art. 179(2) and (3), Art. 180(3), Art. 183(2), Art. 184(3) and Art. 185) by reference to the present legal doctrine and case law. Concerning the stages of appeal, the view is held that by direct or analogous application of Art. 356(2) CPC (Civil Procedure Code) the juge d'appui has jurisdiction as the sole instance of the Canton to render decisions in support of the arbitral tribunal. On the federal level however, the parties shall have the right to appeal against these decisions by filing a civil law appeal before the Swiss Federal Supreme Court, with the exception of most decisions given by juge d'appui within the meaning of Art. 180(3) PILA. As to this federal appeal, it is established that the case law of the Swiss Federal Supreme Court under the FTA (Act on the Federal Tribunal) indicates the Court's inclination to qualify both negative and positive decisions issued by the juge d'appui as final decisions in terms of Art. 90 FTA. In reference to the upcoming revision of the PILA's 12th Chapter the author concludes that the legislator might implement some clarifications in the current legal framework. It seems particularly advisable to ensure that all relevant Articles in the PILA regarding decisions of the juge d'appui explicitly reference to Art. 356(2) CPC. Moreover, the author is of the opinion that it would also be expedient to specify the

Rezension zu: Inge Govaere and Hanns Ulrich (eds.): Intellectual Property, Public Policy and International Trade

The contemporary intellectual property rights (IPR) system is not a simple, smoothly working block of rules but is complex and full of ambiguities, and as many argue, imperfections. Some deficits relate on the one hand to the inherent centrality of authorship, originality and mercantilism to the ‘Western’ IP model, which leaves numerous non-Western, collaborative or folkloric modes of production outside the scope of protection. On the other hand, some imperfections stem from the way IPR are granted, whereby creators acquire a temporary monopoly over their works and thus exclude the public from having access to them. In this sense, it is often uncertain whether the existent IPR model appropriately reflects the precarious balance between private and public interests, and whether the best incentives to promote creativity and innovation - the initially stated objectives of intellectual property protection - are offered. The matter becomes still more complicated when one considers that the IPR system is not domestically contained but is globalised and strongly affected by rules at the regional and international levels. The question of whether the balance between private interests and public values is sustained within the international legal framework, epitomised by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO), is precisely the topic of the book reviewed here. Review of Intellectual Property, Public Policy, and International Trade, edited by Inge Govaere and Hanns Ullrich, P.I.E. Peter Lang, 2007.

The WTO and Food Security: What’s Wrong with the Rules?

The WTO Agreement on Agriculture (AoA) is the predominant multilateral legal framework governing agricultural trade. The objective of the AoA is to liberalise trade in agriculture through reductions in tariffs, domestic support and export subsidies. The AoA has not, however, ‘levelled the playing field’ and has not resulted in the equitable distribution of food, particularly for the poorer developing countries. On the other hand, support for small farmers does not ensure food security for the poor. While food security has no simple solutions such as “free trade is good for you”, reform proposals for trade rules which only address agricultural policy instruments fail to account for consumer and other interests: neither tariff reductions and subsidy disciplines, nor safeguards and other measures of producer protection can automatically increase food security. Rather, what is needed is the full and proper implementation of a number of commitments which the international community has already entered into in various human rights treaties, but which even the envisaged results of the now failed Doha Round negotiations could not ensure without revisiting relevant multilateral trade and investment rules.

An Enabling Regulatory Environment for Sustainable Investment: The Example of Trade Law

There is broad international agreement that investment flows to the agricultural sector in developing countries need to be increased. But there is also agreement that such investments need to be sustainable. For being sustainable, they must not only be beneficial to the public economy, but also to rural households and to the environment in the short and the long run. Whether sustainable investments take place, not least depends on the legal framework within which these investments are situated. This is true for the domestic legal frameworks of both the home country and of the host country of the investment. But also the international legal frameworks in which home and host states are embedded set either positive or negative incentives for investments to be sustainable. The paper presents an overview on regulatory frameworks which come to focus in this regard. It then elaborates on international agricultural trade regulation, by assuming that sustainable investments in agriculture presume a ‘sustainable trade regime’. By doing so, the paper presents parts of the debate about a sustainable agricultural trade regime, as it has been resumed and further developed by the author in recent years. Key words. Agricultural sector, sustainable investment, regulatory environment, sustainable trade regime.

A tephra lattice for Greenland and a reconstruction of volcanic events spanning 25–45 ka b2k

Tephra layers preserved within the Greenland ice-cores are crucial for the independent synchronisation of these high-resolution records to other palaeoclimatic archives. Here we present a new and detailed tephrochronological framework for the time period 25,000 e 45,000 a b2k that brings together results from 4 deep Greenland ice-cores. In total, 99 tephra deposits, the majority of which are preserved as cryptotephra, are described from the NGRIP, NEEM, GRIP and DYE-3 records. The major element signatures of single glass shards within these deposits indicate that 93 are basaltic in composition all originating from Iceland. Specifically, 43 originate from Grimsv € otn, 20 are thought to be sourced from the Katla volcanic system and 17 show affinity to the Kverkfj € oll system. Robust geochemical characterisations, independent ages derived from the GICC05 ice-core chronology, and the stratigraphic positions of these deposits relative to the Dansgaard-Oeschger climate events represent a key framework that provides new information on the frequency and nature of volcanic events in the North Atlantic region between GS-3 and GI-12. Of particular importance are 19 tephra deposits that lie on the rapid climatic transitions that punctuate the last glacial period. This framework of well-constrained, time-synchronous tie-lines represents an important step towards the independent synchronisation of marine, terrestrial and ice-core records from the North Atlantic region, in order to assess the phasing of rapid climatic changes during the last glacial period.