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Pathways to Just, Equitable and Sustainable Trade and Investment Regimes

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Pathways to Just, Equitable and Sustainable Trade and Investment Regimes Schulich School of Law, Dalhousie University Schulich Law Scholars Reports & Public Policy Documents Faculty Scholarship 7-2021 Pathways to Just, Equitable and Sustainable Trade and Investment Regimes Tomaso Ferrando University of Antwerp, Belgium Nicolas Perrone University of Andres Bello, Chile Olabisi D. Akinkugbe Dalhousie University Schulich School of Law Kangping Du SISU, China Follow this and additional works at: https://digitalcommons.schulichlaw.dal.ca/reports Part of the Business Organizations Law Commons, Environmental Law Commons, Law and Gender Commons, and the Law and Society Commons Recommended Citation Tomaso Ferrando et al, "Pathways to Just, Equitable and Sustainable Trade and Investment Regimes" (Fairtrade Germany and Fairtrade Australia, 2021). This Report is brought to you for free and open access by the Faculty Scholarship at Schulich Law Scholars. It has been accepted for inclusion in Reports & Public Policy Documents by an authorized administrator of Schulich Law Scholars. For more information, please contact [email protected]. 1 Pathways to Just, Equitable and Sustainable Trade and Investment Regimes Authors: Dr. Tomaso Ferrando (University of Antwerp, Belgium) Dr. Nicolas Perrone (University Andres Bello, Chile) Dr. Olabisi Akinkugbe (Dalhouise University, Canada) Dr. Kangping Du (SISU, China) This study was commissioned by the Fairtrade Germany and Fairtrade Austria. The contents of this document are the sole responsibility of the authors and can under no circumstances be regarded as reflecting the position of these organisations. To get in touch with the authors, please write to Tomaso Ferrando at [email protected]. To get in touch with the commissioning organizations, please write to Peter Möhringer at [email protected] Electronic copy available at: https://ssrn.com/abstract=3895640 2 Outline Summary of content and recommendations ......................................................................................... 4 Intro: tools and directions for just, sustainable and equitable trade and investments .................... 19 1. Covid-19, trade and investments: between uncertainty and possibility ........................................ 24 1.1 International trade and State interventionism: opening new spaces of reflection or exceptional measure? ........................................................................................................................................... 27 1.2 Looking beyond Covid-19: the multiple pathways to trade and investment justice, equity and sustainability...................................................................................................................................... 28 2. The Vocabulary of International Trade and Investments ........................................................... 32 2.1 Free Trade and free investments as economic growth and prosperity ...................................... 32 2.2 Comparative advantage and specialization ................................................................................. 35 2.3 Fair Trade as Building a Level Playing Field ................................................................................. 37 2.4 Protectionism is a taboo: but protective measures could make a difference ...................... 40 3. Trade and investment justice: which approach do we choose? ..................................................... 44 3.1 The Fair Trade movement’s mission to transform trade for justice, equity and sustainability .. 46 3.2 Justice as individual freedom to exchange .................................................................................. 52 3.3 Justice as fair, uniform and transparent procedure .................................................................... 53 3.4 Trade and investment justice as distributive justice ................................................................... 55 3.5 Trade and investment through the lenses of reparatory and climate justice ............................. 60 3.5.a Reparatory Justice ................................................................................................................ 60 3.5.b Climate Justice ...................................................................................................................... 63 4. The Contemporary Free Trade and Investment Regimes: how did we get here and where are we going? .................................................................................................................................................... 68 4.1 The Overlooked History of International Trade and Investment ................................................ 68 4.2. Trade and investments in the colonial era ................................................................................. 69 4.3 The post-II World War, the Havana Charter and International Commodity Agreements .......... 72 4.4 The proliferation of International Commodity Agreements ....................................................... 76 4.5 Decolonization and the rise of the New International Economic Order. .................................... 79 5. The main legal structures behind the current global economy and the trade wars ...................... 84 5.1 The WTO as a jewel in the crown of free trade and globalization. ............................................. 84 5.2 The WTO is more than GATT, GATS and TRIPS ............................................................................ 86 5.3 The WTO dispute resolution mechanism as part of the trade regime ........................................ 89 5.4 The spaghetti bowl of Free Trade Agreements, Preferential Trade Agreements and Regional Trade Agreements ............................................................................................................................. 91 5.4.a The EU-Mercosur trade agreement: different levels of criticism ......................................... 94 5.5 Foreign Direct Investments, bilateral investment treaties and investors-state disputes resolution (ISDS) ................................................................................................................................ 96 Electronic copy available at: https://ssrn.com/abstract=3895640 3 6. A systemic and holistic approach to the socio-environmental impacts of trade and investment liberalization ....................................................................................................................................... 100 7. Multiple ways forwards for a just, equitable and sustainable trade and investment regime: 2030 and 2050 scenarios ............................................................................................................................. 107 7.1 Green trade, climate change and biodiversity loss ................................................................... 109 7.1.1 Business as usual: ‘Market will react. Market always reacts’. ........................................... 110 7.1.2 Trade and…: State should steer the transition towards a ‘green global market’ ............... 113 7.1.3. A systemic approach: are global green trade and investments compatible with planetary boundaries? ................................................................................................................................. 123 7.2 Trade liberalization as an opportunity for fair trade ................................................................. 129 7.2.1 Business as usual: more trade for more economic prosperity ............................................ 130 7.2.2 Trade and…: human rights and environmental Impact Assessment beyond the Fair Trade market ......................................................................................................................................... 134 7.2.3 A systemic approach to the push towards more liberalization .......................................... 141 7.3 Trade and gender ...................................................................................................................... 151 7.3.1 Business as usual: trade is gender neutral ......................................................................... 157 7.3.2 Trade and: empowering through market access ................................................................ 157 7.3.3 Systemic approach to trade and gender ............................................................................ 164 7.4 E-commerce as the Future of International Trade .................................................................... 169 7.4.1 A business as usual approach to the globalisation of e-commerce .................................... 171 7.4.2 A ‘Trade and…’ approach to e-commerce .......................................................................... 173 7.4.3 A Systemic Approach to the e-commerce revolution.......................................................... 176 7.5 Investment law and investment arbitration ............................................................................. 180 7.6 Blind spots and missing pieces: taxation, public procurement, informality, public services, financialization of global commodity chains, etc. ........................................................................... 187 7.6.1. Property, contracts and distribution of productive assets................................................. 188 7.6.2 Taxation .............................................................................................................................. 189 Taxation is ..................................................................................................................................
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