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The quest for enforcement of
environmental provisions in Transatlantic
Trade and Investment Partnership (TTIP)
Ilaria Espa and Kateryna Holzer
World Trade Institute, Switzerland
ASIL Research Forum 2015
23 October 2015, Washington, D.C.
The National Centres of Competence in Research (NCCR)
are a research instrument of
the Swiss National Science Foundation (SNSF)
FTAs and race to the bottom concerns
• Influence of FTA negotiations on domestic levels of
environmental protection
– Tar sands, the EU FQD & CETA
• Potential negative consequences of preferential
trade deals for the environment
– Investor-state DS
– Alignment of environmental standards
– Failure to maintain domestic levels of environmental
protection
The National Centres of Competence in Research (NCCR)
are a research instrument of
the Swiss National Science Foundation (SNSF)
24.05.2017
1
Climate change relevance of TTIP
• US and EU are the 2nd and 3rd world largest
polluters with bilateral trade accounting for nearly a
third of world trade
• TTIP can address climate change through:
- elimination of barriers for environmental goods and
services
- prohibition of fossil fuel subsidies
- reduction in carbon footprint of bilateral trade
The National Centres of Competence in Research (NCCR)
are a research instrument of
the Swiss National Science Foundation (SNSF)
24.05.2017
2
Options for dealing with climate change-related
measures in TTIP
Placing in the Agreement
Enforceability
TBT chapter
sectorial annexes
(e.g. motor vehicles)
general DS
Energy
chapter
article on standards
general DS
Trade and
sustainable
development
chapter
e.g. provisions on
enforcement
of
domestic climate
laws
The National Centres of Competence in Research (NCCR)
are a research instrument of
the Swiss National Science Foundation (SNSF)
likely soft
enforcement
24.05.2017
3
Classical approach (I): soft enforcement
• Consultations
-
practically in all EU & US FTAs
a political state-state settlement
low effects on compliance
• NAFTA model of citizen submissions (e.g.
Art.14-15 NAAEC)
-
a fact-finding procedure but not a DS mechanism
small number of cases with a factual record
lack of meaningful solutions for environmental problems
The National Centres of Competence in Research (NCCR)
are a research instrument of
the Swiss National Science Foundation (SNSF)
24.05.2017
4
Classical approach (II): stronger enforcement
• Environmental arbitration (e.g. Art. 22-36 NAAEC,
US-Chile FTA, US-CAFTA-DR FTA)
- state-state ad hoc mechanism of dispute resolution
- scarce practice
- usually a longer and more burdensome procedure than
the normal arbitration
• Extension of general DS (e.g. US-Jordan FTA, TPP-?)
- scarce practice
- state-state DS mechanism
- risk of inaction due to political considerations
The National Centres of Competence in Research (NCCR)
are a research instrument of
the Swiss National Science Foundation (SNSF)
24.05.2017
5
Innovative approach to enforcement of
environmental provisions in TTIP
competent in
environmental matters
individual
-state
arbitration/
DS
analogue to
investor-state DS
(admissible for
non-state actors)
based on criteria
for admissibility of
claims and
procedural rules
having authority to
recommend remedies,
approve action plans
and monetary
enforcement
assessments
The National Centres of Competence in Research (NCCR)
are a research instrument of
the Swiss National Science Foundation (SNSF)
24.05.2017
6
Thank you!
[email protected]
The National Centres of Competence in Research (NCCR)
are a research instrument of
the Swiss National Science Foundation (SNSF)
24.05.2017
7