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Multilateral investment court: Framework options

03-06-2021

The Council of the EU has authorised the European Commission to represent the EU and its Member States in the intergovernmental talks at the United Nations Commission on International Trade Law (UNCITRAL), with a view to reforming the existing investor-state dispute settlement (ISDS) system. The latter provides a procedural framework for disputes between international investors and host states in relation to international investment agreements, and relies on arbitration procedures. The system has ...

The Council of the EU has authorised the European Commission to represent the EU and its Member States in the intergovernmental talks at the United Nations Commission on International Trade Law (UNCITRAL), with a view to reforming the existing investor-state dispute settlement (ISDS) system. The latter provides a procedural framework for disputes between international investors and host states in relation to international investment agreements, and relies on arbitration procedures. The system has raised serious concerns among stakeholders across the EU, especially in relation to the transparency and consistency of decisions, the independence of arbitrators, and the cost and duration of arbitral procedures. The intergovernmental talks at UNCITRAL are aimed at reforming the system in a manner that would address these concerns; the overarching goal of the Council mandate is to establish a full-fledged permanent multilateral investment court with an appellate mechanism and tenured judges. UNICTRAL talks started in 2017; in April 2019, the working group identified three areas of concerns, namely a) consistency and predictability of arbitral decisions; b) integrity of arbitrators and decision-makers; and c) cost and duration of ISDS disputes. The states then tabled reform proposals that provided the framework for the discussions launched in October 2019. The UNCITRAL Secretariat has circulated two documents summarising the proposals regarding the selection and appointment of ISDS members, the establishment and scope of an appellate mechanism, and the enforcement mechanism. The proposals range from perfecting the current ISDS to setting up formal investment courts comprised of first-instance and appellate tribunals. The documents include questions to the government delegations. In its reply to the initial draft, the delegation at UNCITRAL for the EU and its Member States supports the establishment of a multilateral investment court composed of a first-instance and an appellate tribunal staffed by full-time adjudicators.

The level playing-field for labour and environment in EU-UK relations

26-04-2021

The level playing-field (LPF) provisions of the Trade and Cooperation Agreement (TCA) between the European Union (EU) and the United Kingdom (UK) constitute a key part of the agreement, and became a major source of divergence between the negotiators. LPF provisions establish rules to safeguard fair competition between the parties' businesses. A notable component are the rules on social provisions, labour, environment and climate change, often referred to as the 'trade and sustainable development' ...

The level playing-field (LPF) provisions of the Trade and Cooperation Agreement (TCA) between the European Union (EU) and the United Kingdom (UK) constitute a key part of the agreement, and became a major source of divergence between the negotiators. LPF provisions establish rules to safeguard fair competition between the parties' businesses. A notable component are the rules on social provisions, labour, environment and climate change, often referred to as the 'trade and sustainable development' (TSD) chapters in other free trade agreements (FTAs). The trading relationship between the EU and the UK is fundamentally different from that with other non-EU countries since, on the one hand, EU laws were applicable to the UK until the end of the transition period on 31 December 2020 and, on the other, these two economies neighbour each other and are strongly interconnected. The TCA is therefore designed to maintain sufficiently 'convergent' standards to safeguard fair competition, while providing each party with the freedom to implement its own approach to social and environmental protection. To this end, the TCA requires that parties do not weaken or reduce their levels of social, labour and environmental standards as of the end of 2020 (non-regression); the EU commitments on climate change, in particular on climate neutrality by 2050, will also remain for both parties. In addition, the TCA introduces rebalancing provisions creating a mechanism whereby a party can take 'proportionate measures' in order to offset any (adverse) 'material impacts on trade or investment' resulting from 'significant divergences' between parties. It also allows either party to request a review with a view to amending the agreement, and either party can opt to terminate the trade chapters if the amendment is not satisfactory. Although the TCA LPF provisions on labour and environment are in many respects similar to those in the EU's new generation FTAs, they strengthen the enforcement of non-regression provisions by allowing for remedial measures, and also reinforce the precautionary approach. The TCA also represents a notable innovation with its rebalancing and review provisions.

EU-UK Trade and Cooperation Agreement

22-04-2021

During the April plenary session, the European Parliament is due to vote on giving its consent to the Council decision concluding the Trade and Cooperation Agreement between the European Union and the United Kingdom. This Agreement, which has been provisionally applied since 1 January 2021, is the institutional framework, which, conditional on Parliament's consent, will govern the new EU-UK relationship. It establishes trade on zero-tariff/quota terms and covers a wide range of areas, including energy ...

During the April plenary session, the European Parliament is due to vote on giving its consent to the Council decision concluding the Trade and Cooperation Agreement between the European Union and the United Kingdom. This Agreement, which has been provisionally applied since 1 January 2021, is the institutional framework, which, conditional on Parliament's consent, will govern the new EU-UK relationship. It establishes trade on zero-tariff/quota terms and covers a wide range of areas, including energy, transport and fisheries.

EU-UK Trade and Cooperation Agreement: An analytical overview

02-02-2021

This EPRS publication seeks to provide an analytical overview of the Trade and Cooperation Agreement (TCA) between the European Union (EU) and the United Kingdom (UK), which was agreed between the two parties on 24 December and signed by them on 30 December 2020, and has been provisionally applied since 1 January 2021. The European Parliament is currently considering the Agreement with a view to voting on giving its consent to conclusion by the Council on behalf of the Union. The paper analyses many ...

This EPRS publication seeks to provide an analytical overview of the Trade and Cooperation Agreement (TCA) between the European Union (EU) and the United Kingdom (UK), which was agreed between the two parties on 24 December and signed by them on 30 December 2020, and has been provisionally applied since 1 January 2021. The European Parliament is currently considering the Agreement with a view to voting on giving its consent to conclusion by the Council on behalf of the Union. The paper analyses many of the areas covered in the agreement, including the institutional framework and arrangements for dispute settlement, trade in goods, services and investment, digital trade, energy, the level playing field, transport, social security coordination and visas for short-term visits, fisheries, law enforcement and judicial coordination in criminal matters, and participation in Union programmes. It looks at the main provisions of the Agreement in each area, setting them in context, and also gives an overview of the two parties' published negotiating positions in the respective areas.

Excluding Northern Irish imports from EU tariff rate quotas

22-12-2020

The United Kingdom (UK) withdrew from the European Union (EU) on 1 February 2020. The Withdrawal Agreement, which entered into force on 1 February 2020, provides for a transition period during which the UK will remain in the EU's single market and customs union until 1 January 2021. The Withdrawal Agreement also includes a Protocol on Ireland/Northern Ireland, which states that Northern Ireland will be part of the UK's customs territory and internal market after the transition, but that goods originating ...

The United Kingdom (UK) withdrew from the European Union (EU) on 1 February 2020. The Withdrawal Agreement, which entered into force on 1 February 2020, provides for a transition period during which the UK will remain in the EU's single market and customs union until 1 January 2021. The Withdrawal Agreement also includes a Protocol on Ireland/Northern Ireland, which states that Northern Ireland will be part of the UK's customs territory and internal market after the transition, but that goods originating in Northern Ireland have access to the EU without tariffs or quotas, and that EU law relating to competition and trade is applicable to Northern Ireland. While the Protocol creates obligations between the UK and the EU, and specifically allows for the free movement of goods between Northern Ireland and the EU and vice versa, it does not create obligations vis-à-vis third countries. This could lead to circumvention of the use of EU tariff rate quotas and pose a risk to the proper functioning of the EU single market and the integrity of the common commercial policy. To address these risks and provide legal clarification, the European Commission adopted a legislative proposal on 14 August 2020 setting out that goods imported to Northern Ireland from non-EU countries would not benefit from the EU tariff rate quotas and other import quotas unless ultimately destined for the EU. With just a single amendment, to bring forward entry into force (but not change the date of application, 1 January 2021), corresponding to the Council's position, the European Parliament voted on the report in plenary on 25 November 2020. The regulation was then adopted by the Council at first reading, and signed by the Presidents of the two branches of the EU legislature on 16 December 2020.

UK trade agreements with third countries: Implications for the EU

22-12-2020

The United Kingdom (UK) left the European Union (EU) on 1 February 2020 and will regain competence for its own international trade policy as soon as the transition period concludes at the end of 2020. Freedom to determine its own trade relationships was a major reason for the UK's withdrawal from the EU: its new international trade policy is based on the goal of establishing 'global Britain', a country asserting that it is strongly committed to trade openness with international leadership. To this ...

The United Kingdom (UK) left the European Union (EU) on 1 February 2020 and will regain competence for its own international trade policy as soon as the transition period concludes at the end of 2020. Freedom to determine its own trade relationships was a major reason for the UK's withdrawal from the EU: its new international trade policy is based on the goal of establishing 'global Britain', a country asserting that it is strongly committed to trade openness with international leadership. To this end, the UK has concluded as many continuity agreements as possible, in order to roll over existing EU free trade agreements (FTAs), such as that with South Korea. It has also renegotiated, rather than simply roll over, the provisions of EU FTAs, with partners who so demanded, including Japan. Beyond those countries with EU FTAs to which the UK has been party, it has expanded the range of its FTA negotiations to Australia, New Zealand and the United States (US), three of its major trading partners. When it comes to geographic scope, the UK has set the Pacific as a high priority, its objective being to access the newly established Comprehensive and Progressive Trans-Pacific Partnership (CPTPP). In addition, the UK aims to use its advantage in digital trade and services to become a 'world digital trade powerhouse', and has stressed that FTA provisions should promote digital trade and foster regulatory cooperation in the field. The EU represents 50 % of the UK's total trade, and the UK economy is integrated with and reliant on the EU. Therefore, although the UK is facing obstacles in signing trade agreements, its new strategy has a number of implications for the EU. The UK is committed to remaining an open country with respect to international trade and its focus on digital trade and services, which depend less on geography, is seen as a way to diversify away from the EU.

UK Internal Market Bill and the Withdrawal Agreement

20-11-2020

On 9 September 2020, the United Kingdom (UK) government tabled a bill in the House of Commons which would govern the country's internal market after the Brexit transition period ends. It aims to allow goods and services to flow freely between the four jurisdictions of the UK – England, Scotland, Wales and Northern Ireland – replacing the rules now in place through membership of the EU's single market. Certain parts of this UK Internal Market Bill are particularly controversial, as they explicitly ...

On 9 September 2020, the United Kingdom (UK) government tabled a bill in the House of Commons which would govern the country's internal market after the Brexit transition period ends. It aims to allow goods and services to flow freely between the four jurisdictions of the UK – England, Scotland, Wales and Northern Ireland – replacing the rules now in place through membership of the EU's single market. Certain parts of this UK Internal Market Bill are particularly controversial, as they explicitly contravene the Protocol on Ireland/Northern Ireland attached to the Withdrawal Agreement (WA) that was ratified in January 2020. First, the bill provides that the UK government may authorise Northern Ireland businesses not to complete exit summary declarations when sending goods to Great Britain, thereby breaching the Union Customs Code applicable to NI. The bill would also allow the UK government to interpret, dis-apply or modify the application of the State aid rules of the European Union, which are applicable to UK measures that affect trade between Northern Ireland and the EU. Last but not least, the bill provides that UK regulations in these areas will have effect notwithstanding their incompatibility with relevant domestic or international law, including the Withdrawal Agreement. The reaction of the European Commission to the bill was immediate, calling for an extraordinary meeting of the EU-UK Joint Committee, which was held the following day, 10 September. On 1 October, the Commission sent a letter of formal notice to the UK for breaching its obligations under the WA, marking the beginning of an infringement process against the UK. As the UK did not reply by the end of October, the Commission may now proceed with the process, sending a Reasoned Opinion to the UK. Meanwhile, the bill has passed third reading in the House of Commons, even if in the House of Lords the government has been heavily defeated, with amendments removing the controversial clauses. While the government has indicated its intention to re-table the clauses when the bill returns to the Commons in December, it would be open to it to no longer press for their inclusion, if and when agreement is reached in the ongoing negotiations on the future EU-UK relationship.

New EU-UK partnership

16-06-2020

Following the withdrawal of the United Kingdom from the European Union, the two parties are negotiating their future relationship, with a view to sealing an agreement that will enter into force after the transition period ends on 31 December 2020. After the fourth round of negotiations ending on 5 June 2020, a number of critical points of divergence remain, with only limited progress made so far towards resolving them. The European Parliament is expected to vote on a recommendation on the negotiations ...

Following the withdrawal of the United Kingdom from the European Union, the two parties are negotiating their future relationship, with a view to sealing an agreement that will enter into force after the transition period ends on 31 December 2020. After the fourth round of negotiations ending on 5 June 2020, a number of critical points of divergence remain, with only limited progress made so far towards resolving them. The European Parliament is expected to vote on a recommendation on the negotiations during its June plenary session.

Three critical issues in EU-UK relations

08-06-2020

Following the withdrawal of the United Kingdom (UK) from the European Union (EU) on 1 February 2020, the EU and the UK launched negotiations on a new partnership agreement, to come into effect at the end of the transition period, scheduled for 31 December 2020. The negotiations are intended to address nearly all the domains covered in the Political Declaration negotiated by both parties alongside the Withdrawal Agreement, including trade and economics, fisheries, thematic cooperation, and internal ...

Following the withdrawal of the United Kingdom (UK) from the European Union (EU) on 1 February 2020, the EU and the UK launched negotiations on a new partnership agreement, to come into effect at the end of the transition period, scheduled for 31 December 2020. The negotiations are intended to address nearly all the domains covered in the Political Declaration negotiated by both parties alongside the Withdrawal Agreement, including trade and economics, fisheries, thematic cooperation, and internal and external security. As far as negotiations on the future economic relationship are concerned, while the parties agree in principle on an exceptional zero-tariff and zero-quota comprehensive and balanced free trade agreement (FTA) aiming for as 'frictionless' trade as possible, they still disagree on major aspects of the economic partnership, especially fisheries and level playing-field (LPF) commitments. The EU wants the future agreement in the fisheries domain to retain the status quo as far as possible, including reciprocal access to waters in return for access to markets and quota-shares that are based on historical fishing patterns. The EU also insists that an effective LPF would ensure fair competition. After the third round of talks, which took place in May 2020, the UK's chief negotiator, David Frost, said that the EU proposal on fisheries was ‘simply not realistic’, and it was unacceptable that the LPF binds the UK to EU law or standards; if need be, the UK would aim for a less ambitious FTA. The EU's chief negotiator, Michel Barnier, said that negotiating an FTA providing for tariffs would be far more time-consuming, and the EU would still demand the same LPF commitments because 'open and fair competition is not a "nice-to-have", it is a "must-have" '. Following the fourth round of negotiations, from 2 to 5 June, the positions therefore still seemed irreconcilable. However, the long stand-off in the earlier negotiations on UK withdrawal had seemed equally irreconcilable before the final agreement was reached and then ratified. One area in which the two sides did manage to agree in those negotiations is the financial settlement included in the Withdrawal Agreement. While that settlement is now being implemented, it had initially been seen as one of the more difficult areas of the withdrawal negotiations.

EU export authorisation scheme for personal protection equipment

26-05-2020

In the midst of the outbreak of the coronavirus pandemic, the European Commission issued an implementing regulation requiring authorisations for exports of personal protection equipment (PPE), effective as of 15 March 2020 for a six-week period. A second implementing regulation extended the period for another 30 days. The latter reduced the range of products subject to authorisation to three categories, namely mouth-nose protection, protective spectacles and visors, and protective garments; gloves ...

In the midst of the outbreak of the coronavirus pandemic, the European Commission issued an implementing regulation requiring authorisations for exports of personal protection equipment (PPE), effective as of 15 March 2020 for a six-week period. A second implementing regulation extended the period for another 30 days. The latter reduced the range of products subject to authorisation to three categories, namely mouth-nose protection, protective spectacles and visors, and protective garments; gloves and face shields were dropped from the list. The authorisations are granted by national competent authorities, and must be coordinated with the Commission's new 'clearing house for medical equipment' and the rescEU stockpile of medical equipment in order to verify that the PPE being exported is not needed by other EU Member States in their fight against coronavirus. The export authorisation regulations are among the EU coordination and solidarity mechanisms implemented by the European Commission. A mapping of exports and imports of PPE subject to authorisation shows that, even though the EU runs a large trade surplus for medical products in general, it had been running trade deficits on these specific products for the last decade. The scale of trade in these products is also very small since imports represented as little as 0.05 % of EU gross domestic product (GDP) in 2019. This all goes to show how what amounts to a tiny portion of international trade can have dramatic consequences.

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