Leaked TISA Financial Services text: A glimpse into the future of services liberalization

This repository item contains a policy brief from the Boston University Global Economic Governance Initiative. The Global Economic Governance Initiative (GEGI) is a research program of the Center for Finance, Law & Policy, the Frederick S. Pardee Center for the Study of the Longer-Range Future, and the Frederick S. Pardee School of Global Studies. It was founded in 2008 to advance policy-relevant knowledge about governance for financial stability, human development, and the environment.News of the leaked draft text of the financial services annex of the Trade in Services Agreement (TISA) has enlivened critics and given them opportunity to discuss the substantive shortcomings of the agreement. This brief addresses how the leaked text could impact host state regulation of foreign direct investment (FDI). The TISA negotiations are attempting to make progress in services liberalization outside of the stalled WTO proceedings. Proponents recognize potential importance of such an agreement in today’s services-driven economy. However, services liberalization has not resulted in the same consistent growth as liberalizing goods trade did in the mid-20th century. Here I discuss four key provisions in the leaked draft text that threaten to destabilize the global economy by exceeding the scope and coverage of the existing services liberalization as applied to FDI. First, by extending the “right of establishment” to foreign financial service providers, they would be granted almost automatic entry into any host state that is a party to the agreement. Second, by establishing automatic coverage of any “new financial service, host states may not protect themselves from new, untested financial services in the future. Third, by prohibiting even nondiscriminatory measures, foreign financial services providers receive special protection from any regulatory measures that may affect them, even if they affect national providers similarly. Finally, under the guise of “transparency”, this new draft text gives foreign providers political power in the host state to shape future financial services regulation

Preferential trade agreements: free trade at what cost?

This repository item contains a single issue of Issues in Brief, a series of policy briefs that began publishing in 2008 by the Boston University Frederick S. Pardee Center for the Study of the Longer-Range Future.This paper looks at the broader aspects of legal incompatibility among various agreements and argues that in the long run, increased reliance on PTAs for trade liberalizations will force countries to maintain inconsistent legal standards

21st century trade agreements: implications for long-run development policy

This repository item contains a single issue of The Pardee Papers, a series papers that began publishing in 2008 by the Boston University Frederick S. Pardee Center for the Study of the Longer-Range Future. The Pardee Papers series features working papers by Pardee Center Fellows and other invited authors. Papers in this series explore current and future challenges by anticipating the pathways to human progress, human development, and human well-being. This series includes papers on a wide range of topics, with a special emphasis on interdisciplinary perspectives and a development orientation.This paper examines the extent to which the emerging world trading regime leaves nations the “policy space” to deploy effective policy for long-run diversification and development and the extent to which there is a convergence of such policy space under global and regional trade regimes. We examine the economic theory of trade and long-run growth and underscore the fact that traditional theories lose luster in the presence of the need for long-run dynamic comparative advantages and when market failures are rife. We then review a “toolbox” of policies that have been deployed by developed and developing countries past and present to kick-start diversity and development with the hope of achieving longrun growth. Next, we examine the extent to which rules under the World Trade Organization (WTO), trade agreements between the European Union (EU) and developing countries, trade agreements between the United States (US) and developing countries, and those among developing countries (South-South, or S-S, agreements) allow for the use of such policies. We demonstrate that there is a great divergence among trade regimes over this question. While S-S agreements provide ample policy space for industrial development, the WTO and EU agreements largely represent the middle of the spectrum in terms of constraining policy space choices. On the far end, opposite S-S agreements, US agreements place considerably more constraints by binding parties both broadly and deeply in their trade commitments. Rachel Denae Thrasher holds a master’s degree in International Relations and a law degree, both from Boston University, and she is a Research Fellow at the Frederick S. Pardee Center for the Study of the Longer-Range Future. Her recent research has focused on policy issues related to regional trade agreements, multilateral environmental agreements (MEAs) and on global forests governance. Kevin P. Gallagher is an Assistant Professor in the Department of International Relations and Research Fellow at the Frederick S. Pardee Center for the Study of the Longer-Range Future, both at Boston University. He is also a fellow at the Global Development and Environment Institute at Tufts University. He has written extensively on trade and global development. Also see related publication The Future of the WTO, by Kevin Gallagher

The Regulation of Third Party Funding: Gathering Data for Future Analysis and Reform

Third-party funding (TPF) is a relatively new phenomenon in the field of international investment arbitration. TPF takes place when a non-party to a dispute provides funding to one of the parties (usually the claimant) in return for a percentage of the amount recovered. International investment arbitration is a unique context, however, because investor-states dispute settlement puts States always in the role of respondent and private investors in the role of claimants. Despite this apparent imbalance, TPF proponents argue, among other things, that it provides much needed access to justice for poorer clients and adds value to the system by providing a more disinterested evaluation of legal arguments. Those claims do not stand up to the facts as we have them, however. There have been several efforts to regulate TPF, including mandatory disclosure rules (applied only to the identity of the funder) and more expansive discretionary disclosure. These efforts do not go far enough. Instead, we need mandatory expansive disclosure of the identity of the funder and key terms of the funding agreement. This will provide scaffolding to the international investment arbitration system by avoiding conflicts of interest, aligning with institutional interests in transparency, and providing data for ongoing empirical research

Expansive Disclosure: Regulating Third-Party Funding for Future Analysis and Reform

Third-party funding (TPF) is a relatively new phenomenon in the field of international investment arbitration. TPF takes place when a non-party to a dispute provides funding to one of the parties (usually the claimant) in return for a percentage of the amount recovered. International investment arbitration is a unique context, however, because investor-states dispute settlement puts States always in the role of respondent and private investors in the role of claimants. Despite this apparent imbalance, TPF proponents argue, among other things, that it provides much needed access to justice for poorer clients and adds value to the system by providing a more disinterested evaluation of legal arguments. Those claims do not stand up to the facts as we have them, however. There have been several efforts to regulate TPF, including mandatory disclosure rules (applied only to the identity of the funder) and more expansive discretionary disclosure. These efforts do not go far enough. Instead, we need mandatory expansive disclosure of the identity of the funder and key terms of the funding agreement. This will provide scaffolding to the international investment arbitration system by avoiding conflicts of interest, aligning with institutional interests in transparency, and providing data for ongoing empirical research

Reforming International Investment Law: Opportunities, Challenges, Paradigms

Transcription of a panel discussion

TPF and ISDS: A Public Comment on the Draft Report of the ICCA/Queen Mary Task Force on Third Party Funding in International Arbitration

Transcription of a panel at the conference Reforming International Investment Law: Opportunities, Challenges, Paradigms , sponsored by Boston College Law School and the Pontifical Catholic University of Chile. This transcription was presented in April 2018 as a public comment on the Draft Report of the ICCA/Queen Mary Task Force on Third Party Funding in International Arbitration