The geopoliticization of European trade and investment policy

First published: 27 October 2019The academic debate about trade policy in the EU has been dominated of late by claims about the new politicization of trade. After many decades of insulation from domestic politics, trade policy has erupted into public discourse with the unprecedented mobilization against the Transatlantic Trade and Investment Partnership (TTIP) and Wallonia's coup in blocking the implementation of the Comprehensive Economic and Trade Agreement (CETA) between the EU and Canada. As a result, a body of academic scholarship has emerged that looks at the causes and implications of this politicization and variations across time and issue areas, as well as the nature of agreements and likely trends for future policies. In this review contribution, we push back argue against this prevailing diagnosis on two counts. Firstly, internal politicization is nothing new. For decades trade agreements may not have had much public salience, nor played a role in creating political cleavages during electoral campaigns, but behind the scenes member states have been engaged in a hard political fight over competences and interests. Moreover, some salient and, arguably, successful public mobilization has happened before, notably in the late 1990s. Second, it is our contention that, rather than simple politicization, the most important recent development has been the geopoliticization of trade and investment policy. Call it the China syndrome or the Trump effect, tariffs, retaliatory measures and counter‐retaliation have featured prominently in the news in 2018, and the rhetoric of trade negotiations has given way to the language of economic battlefields and trade warfare. This geopoliticization of trade may pose a serious challenge to interdependence and multilateralism, which the EU has long safeguarded, but it is simply here to stay

Assessing the normative legitimacy of investment arbitration : the EU’s investment court system

The inclusion of an investment chapter in the Comprehensive Economic and Trade Agreement (CETA) and the Transatlantic Trade and Investment Partnership (TTIP) has encountered significant opposition, especially in relation to Investor-State Dispute Settlement (ISDS). In this context, the EU has proposed several changes to the traditional procedures, including the creation of an investment court. The need to reform ISDS has long been recognised, but the key question remains: What is required for such a dispute settlement mechanism to have legitimate authority? Drawing from insights in legal theory and political philosophy, we examine what could be adequate criteria for the normative legitimacy of ISDS. We argue that ISDS can only be minimally legitimate if there are sufficient procedural safeguards to ensure fair access to the proceedings and equal consideration of their interest for all those affected by investment tribunals’ or courts’ decisions. Furthermore, we emphasize the need to look beyond what potential beneficial and adverse consequences of ISDS are, and explain that the appointment of the judges by the state parties and the reintroduction of some control of the state parties over dispute settlement outcomes are not sufficient to guarantee the normative legitimacy of ISDS