Tag Archive | "Free Trade"

3 Ways the TPP Advances Human Rights Protections

by Jeremy S Goldstein*

[Denver, CO] Last week, signatory nations released the long-awaited full text of the Trans Pacific Partnership (TPP) agreement, which is poised to reshape the way that countries comprising 40% of the world’s economy conduct business. While the white-hot media spotlight has been searing hairs off trade provisions relating to the automotive, agricultural, pharmaceutical, and technology sectors, little attention has been placed on other chapters of the agreement. Few commentators have noticed that the TPP includes provisions which are quite unique in trade agreements, in many places heeding recommendations of the United Nations and other global civil society organizations in a manner which advances human rights. This is important because while many of the 12 nations currently signed to the agreement have substantial domestic human rights protections that will prevent violations resulting from business operations, such as the United States, Australia, New Zealand, Japan, Canada, Peru, Chile, Singapore and to an extent Mexico, others, specifically Vietnam, Malaysia, and Brunei, do not.

During negotiations, the White House released a document, Advancing Human Rights through the Trans-Pacific Partnership, where the administration acknowledged that the TPP “has provided the Administration with significant opportunities to make progress on human rights issues” and they would therefore be developing the agreement in a manner which ensures “that people everywhere are treated with dignity and respect.” The document discusses country and issue specific actions taken by US negotiators to make clear that “protecting human rights … is a core American value.” Even so, of the available publications discussing the administration’s implementation of these goals, most carry an opinion similar to that of a DIPLOMAT article titled Sure, TPP Is ‘Win-Win’… Unless You Care About Human Rights. These authors seemingly miss the point, because trade agreements are not, and have never been, fundamentally concerned with human rights protections. While the goal of many organizations may be to change that reality, relative to most other international trade and investment agreements the TPP stands up as a progressive document, which in many ways heeds recommendations of civil society and of the United Nations Guiding Principles on Business and Human Rights (UNGP). Specifically, there are three chapters in the treaty in which provisions fulfilling the administration’s promise to highlight the importance of human rights are located: Chapter 19 – Labour, Chapter 23 – Development, and Chapter 9 – Investment.

Labour – Chapter 19

Article 19.3 requires that all nations adopt and maintain laws, and take action to implement those laws, which are consistent with the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up. The agreement also includes a duplicate list of rights, such as freedom of association and collective bargaining, elimination of forced labor, abolition of child labour, and elimination of discrimination. The express protections listed in 19.3 do differ slightly from the ILO’s recommended protections, in that they do not include minimum wage or work hours, but are nonetheless sufficient, and specifically address a major issue for signatory nations, prohibiting the worst forms of child labour.

Article 19.7, Corporate Social Responsibility, goes a step further in responding to the demands of civil society in requiring that signatory parties “endeavor to encourage enterprises to voluntarily adopt corporate social responsibility initiatives on labour issues that have been endorsed or are supported by that Party.” This article is followed by others which further layout the required means of implementation and the preferred methods of reporting for corporations and state parties in implementing labour and CSR standards.

Finally, in annex to the text of the agreement, the US has initiated Labour Consistency Plans with Brunei and Malaysia mandating specific changes to the domestic national laws of each country, which will place them closer to compliance with the ILO requirements. The US and Vietnam have agreed to a similar document in annex to Chapter 19, which is specific enough to require Vietnam to “develop and implement a strategy for targeting inspection and other enforcement activities to sectors where forced labour or child labour has been identified through the National Child Labour Survey or otherwise, including at informal work sites and sub-contractors in the garment industry.” These provisions in the TPP are in line with recommendations from international human rights organizations, and will force improvements in labour standards in the manufacturing powerhouses of Malaysia and Vietnam, greatly reducing the worst labour rights violations in those countries, which are known to be prevalent.

Development – Chapter 23

In an unprecedented move in US trade agreement history, Chapter 23 goes beyond merely arguing that trade enhances development, stating that signatory parties “affirm their commitment to promote and strengthen an open trade and investment environment that seeks to improve welfare, reduce poverty, raise living standards and create new employment opportunities in support of development.” Not only do they affirm this commitment, but they “acknowledge the importance of development in promoting inclusive economic growth, as well as the instrumental role that trade and investment can play in contributing to economic development and prosperity.” This models the UNGP language closely, asserting that trade and development are vital to prosperity and poverty reduction, a key first step in advancing development policy in line with UNGP recommendations.

Most importantly, while the chapter only uses the term sustainable development twice, and one of those instances merely in indirect reference to the UN sustainable development goals, it does make express reference to the importance of women to development. Article 23.4 may not include mandatory requirements on signatory parties, however it does recognize the importance of women in development and suggests steps which may be taken to “enhance the ability of women, including workers and business owners, to fully access and benefit from the opportunities created by [the TPP].” While many may take this for what it is on its face, a hollow but hopeful statement, the chapter does include public recognition from all signatories, including Malaysia and Brunei, that “enhancing opportunities in their territories for women, including workers and business owners, to participate in the domestic and global economy contributes to economic development.”

Investment – Chapter 9

For decades, scholars have lamented the ways in which ambiguous terms of art in international investment agreements like “fair and equitable treatment” and “tantamount to expropriation”, have been used in investor-state arbitration proceedings to restrain states domestic policy space. Many other erudite scholars will argue that the investor-state investment dispute settlement provisions in Section B of Chapter 9 of the TPP have a potential to encourage frivolous claims against states for violations of the agreement, which have, in the past, led to enormous damage awards. However, due to the adoption of recommendations from the UN Guiding Principles on Business and Human Rights (UNGP) and civil society organizations such as the International Institute for Sustainable Development (IISD) in Section A of chapter 9 of the TPP, the danger of frivolous claims by investors is reduced significantly from investment agreements of the past.

UNGP article 9 recommends that states draft investment agreements in a manner which prohibits them from having a reductive effect on the state’s domestic policy space to regulate human rights. The IISD Model Investment Agreement suggests that in order to implement the UNGP recommendations, states should, among other things, define and limit the minimum standard of treatment and create general exceptions provisions which retain policy space for the government to regulate in response environmental and human rights concerns.

An example of the traditional minimum standard of treatment provision in investment agreements follows as such; “Each Party shall accord to covered investments treatment in accordance with international law, including fair and equitable treatment and full protection and security.” Issues resulting from the vagueness of these terms include investors seeking remedy for regulatory efforts by states which do not conform to the investors’ ‘legitimate expectations’. In order to prevent these frivolous claims, and protect state’s domestic policy space, TPP article 9.6 clarifies that the minimum standard is to only include “treatment in accordance with applicable customary international law principles”, and that “the concepts of ‘fair and equitable treatment’ and ‘full protection and security’ do not require treatment in addition to or beyond that which is required by that standard, and do not create additional substantive rights.”

In addition, 9.6 states that ‘fair and equitable treatment’ includes only “the obligation not to deny justice in criminal, civil or administrative adjudicatory proceedings in accordance with the principle of due process embodied in the principal legal systems of the world”; and that ‘full protection and security’ only “requires each Party to provide the level of police protection required under customary international law.” Article 9.6(4) goes even further, stating that “the mere fact that a Party takes or fails to take an action that may be inconsistent with an investor’s expectations does not constitute a breach of this Article, even if there is loss or damage to the covered investment as a result,” expressly precluding claims based on an investor’s expectations. This significantly reduces restrictions on government policy space to regulate human rights abuses by reducing the frivolous claims which may be presented by harmed investors covered by the agreement.

Article 9.15 prohibits claims by investors relating to regulatory measures that a state party “considers appropriate to ensure that investment activity in its territory is undertaken in a manner sensitive to environmental, health or other regulatory objectives.” This is an express dictation of the UNGP article 9 requirement, reducing state’s fears that TPP provisions can be used to investors to restrict their policy space through threat of suit. Finally, as is common throughout other chapters of the TPP, Article 9.16 includes an affirmation of the “importance of each Party encouraging enterprises operating within its territory or subject to its jurisdiction to voluntarily incorporate into their internal policies those internationally recognized standards, guidelines and principles of corporate social responsibility that have been endorsed or are supported by that Party.”

Conclusion

The TPP will not eradicate all human rights violations by businesses in signatory nations, it was not intended to do so, and presumably no agreement could have this effect. The TPP does, however, heed recommendations of the UNGP and other civil society organizations, advancing progressive provisions to prevent human rights violations. The document should be challenged where it is faulty and applauded where it succeeds, not derided entirely for failing to meet unrealistic expectations. After all, the TPP increases trade, trade is essential to continued economic development, and economic development is core to achieving advancements in human rights in developing nations such as Vietnam and Malaysia, specifically those rights listed under the ICESCR. The three chapters examined above, which include more protective human rights provisions than any other multilateral trade agreement the US has entered into in its history, are a step in the right direction. The progressive language in this agreement shows the dedication of the international community to ending the cycle of human rights violations by businesses in the developing world. For this reason, I believe that these 12 courageous nations should be applauded; and for the same reason they should be simultaneously reminded that with great power, comes a great responsibility to ensure the TPP is used to advance human rights through sustainable development across the Pacific, and across the world.

*Jeremy S Goldstein is a 3L J.D. student at the University of Denver – Sturm College of Law and the Online Editor-in-chief of the Denver Journal of International Law and Policy.

TPP

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Don’t sit here!: A growing trend in international relations

Multilateralism has been the prevalent method to solve international issues since the end of the Second World War. The idea is that the inclusion of more than two parties to solve international issues ensures more legitimacy and long –term efficiency. Institutions such as the United Nations, the World Trade Organization (WTO) or the International Monetary Fund (IMF) are the renowned multilateral platforms of our time.

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In the past years, we have witnessed the resurgence and strengthening of bilateral and regional relations (see table below). In other words, the trend is to use a platform with a few selected participants rather than a multitude. The creation and the use of regional institutions, regional agreements and bilateral agreements are only the product of their geopolitical environment: the resurgence of bilateralism and regionalism stems from the incapacity of large multilateral institutions to create adequate solutions for the parties concerned. Multilateralism aimed at providing a platform for states with less political and economic influence to express their views; however, when facing stronger economies, it is easier to negotiate terms of an agreement as a group with a converging agenda such as the United Nations Regional Groups of Member States.

Logic would have that this phenomenon is due to the fact that dealing with regional issues is just easier on a regional level. Indeed, bilateralism and regionalism can be fairer and better platforms to solve issues. The purpose of multilateral institutions is to integrate more parties, it appears that smaller states can feel left out amongst bigger players and larger states slowed down by the myriad of negotiations.

The question is: Does the renaissance of a regional and bilateral relationships signal the beginning of the end of a multilateral world?

The most recent sign of a rusted multilateral system is the failure of the WTO Doha Round in December 2013. India´s refusal to adopt the legal text put a halt to the negotiations started in 2001 (the WTO decision-making system requires the consent of all members; consensus exists only when no member formally objects to the decision).

For a decade, the WTO has tried unsuccessfully to reach a consensus between its members on major agricultural and other trade-related issues. These issues are pivotal to the economic relations between developing and developed countries (agricultural subsidies­; trade facilitation procedures and non-tariff barriers). The impasse of the Doha Round can righteously transform into a catalyst for negotiations on a regional or bilateral level for members desperately in need of an alternative.

Somehow, that alternative could be the Transatlantic Trade and Investment Partnership (TTIP) for the EU and the US. The EU and the US are currently the largest trade agreement so far considering the economic weight of its participants. The TTIP agreement seems very promising for the regulatory coherence between the EU and the US. In terms of international trade, the EU and the US account for 60% of global trade, 33% of world trade in goods and 42% of world trade in services. It is also worth noting that the US and the EU are the most recurrent parties of the WTO dispute resolution system and that they also carry significant weight in influencing the regulation of trade between the members of the WTO. The regulatory negotiations and the coherence to be achieved by the EU and the US will undoubtedly have a large impact on the way trade is made with the EU and with the rest of  the world.

Thus, the question arises as to whether the WTO will remain relevant as the platform for international trade negotiation and the development of trade regulations in the future.

The international financial sector has also witnessed the obsolescence of multilateralism. The multilateral system has also been unable to provide an international solution on the very political and legal controversy that is the manipulation of currency values in order to gain unfair competitive advantages over a foreign competitor. The IMF, which has a mandate on currency surveillance, can identify undervalued currencies threatening the stability of the financial system but does not have an efficient enforcement mechanism. In 2009, Brazilian President Dilma Rousseff denounced the activities of certain central banks in Europe and in the US which were affecting the value of the Brazilian Real in a statement before the United Nations General Assembly. However, actions are being taken on a smaller scale despite the presence of platforms such as the WTO or the IMF. Following the BRICS Summit in 2012, a communiqué was released by the BRICS denunciating currency manipulations by some developed states. The US and China have also recently engaged in a “Strategic Economic Dialogue” to tackle the issue of currency manipulation which can ultimately has an impact on the international financial and trade system. Only time will tell us whether this will result in a multilateral or bilateral/regional solutions.

The lesson is that, the increased use of regionalism and bilateralism in international affairs reflects a multilateral system that is struggling to face a growing number of key states with diverging domestic interests. Nevertheless, extensive and protracted regionalism and bilateralism can draw the world further apart and jeopardize the achieved security and predictability of the international system.The current trend is the result of a divided world, regionalism clearly has the power to breathe new life into the pursuit of international solutions. The latest multilateral conference on climate change in Lima, Peru is a positive sign in this direction. The United Nations members reached a first agreement based on “common but differentiated responsibilities and respective capabilities, in light if different national circumstances”.

Regionalism and bilateralism should augment the multilateral system because they reflect the needs of the world as they are today. The ultimate aim should be a multilateral world. A sagely African proverb says it all: “If you want to go fast, go alone, if you want to go far, go together.”

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Critical Analysis: Tobacco and Trans-Pacific Trade

The United States, Canada, Mexico, Japan, Australia, South Korea, Vietnam, and five other countries stand to gain a great deal from the Trans-Pacific Partnership (“TPP”), a potential lucrative regional trade agreement. The agreement would further lower tariffs and other trade barriers to commerce. However, countries have not been able to agree on how the issue of tobacco should be settled. Specifically, countries have not been able to agree on the extent to which countries should be allowed to regulate the sale of foreign tobacco products.

A majority of future tobacco related deaths will be in developing countries. Image Source: Unconventional Health

A majority of future tobacco related deaths will likely be in developing countries. Image Source: Unconventional Health

There is a clear consensus in the scientific community and public health-oriented organizations that tobacco use leads to a wide variety of health issues. According to the World Health Organization (“WHO”), there are currently more than one billion smokers in the world. Of these one billion, tobacco kills nearly six million each year, with 600,000 deaths due to second-hand smoke. This high level of tobacco use is leading countries down a dangerous path that will result in more than eight million deaths annually by 2030. Thus, the need for tobacco regulation has never been more pressing.

Because of the need for tighter tobacco controls and a disturbingly high level of illicit trade in the product, Malaysia proposed a special “carve out” exemption in the TPP for tobacco. This would allow countries that are parties to the TPP to set their own potentially stiff regulations on tobacco and exempt them from broader potential trade restrictions. This type of exemption could also mean that “health considerations could take precedence over expanded trade.” As tobacco is a uniquely dangerous agricultural product, many, particularly developing countries, have welcomed the proposed exemption.

While the Obama administration initially led many to believe it would support such types of strong measures, the administration recently proposed its own weak measure in regards to tobacco. The United States proposal “cites tobacco within the standard public health and safety exception that appears in U.S. trade agreements, but…no longer includes other tobacco-specific protections.” This means that companies would still be able to challenge public health, safety, and environmental regulations. Although some claim that there is language included within the proposed TPP that would “reduce the likelihood of those changes prevailing,” the fact of the matter is that tobacco presents so many health and regulatory concerns that it cannot and should not be afforded the same status as other products.

The tension between the free trade and the need for control of dangerous products such as tobacco has never been clearer. While tobacco is still legal, and thus cannot be limited to the extent many would dream of, the tobacco industry has greatly expanded into developing countries’ markets. Nearly 80 percent of all future deaths caused by tobacco will likely be in these developing countries. The United States has a unique opportunity to make great strides in promoting public health and leave the tobacco industry behind in negotiating the TPP. However, the recent U.S. TPP proposal shows that big tobacco business still controls much of the world economy, and that business will continue to be able to challenge helpful and necessary tobacco regulations under the guise of free trade.

 

Bailey Woods is a 3L and Candidacy Editor on the Denver Journal of International Law and Policy.

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Critical Analysis: Trans Pacific Partnership Negotiations Resume

Barack Obama speaks at the Trans-Pacific Partnership Leaders meeting at the Hale Koa Hotel during the APEC Summit in Honolulu, Hawaii, November 12, 2011. (American Enterprise Institute)

Barack Obama speaks at the Trans-Pacific Partnership Leaders meeting at the Hale Koa Hotel during the APEC Summit in Honolulu, Hawaii, November 12, 2011. (American Enterprise Institute)

The next round of negotiations on the proposed Trans-Pacific Partnership (TPP) will be held in Singapore this month. This will be the 16th round of negotiations, and they will be held from March 4 to March 13, just seven months ahead of the self-imposed deadline for a deal. The Office of the United States Trade Representative regards the potential treaty as a comprehensive, high standard, next-generation trade agreement that would create the largest free trade area in the world. The provisions reflect an aggressive free trade policy and have drawn comparable criticism.

The United States’ participation in the TPP furthers the United States’ free trade policy strategy that began with the North American Free Trade Agreement (NAFTA) in 1994 and continued through free trade agreements (FTAs) negotiated under George W. Bush.  The strategy is referred to as “competitive liberalization.” These FTAs were created contemporaneously with a number of other free trade agreements within the Asian Pacific Region.  Although the United States currently has free trade agreements with several of the negotiating countries, its involvement in negotiating the TPP began in 2009, following the stall of the Doha Round.

There are currently eleven countries negotiating the TPP, including the U.S., Canada, Singapore, and Australia. The intellectual property, investment/financial services, and dispute resolution components are the most controversial. The stated purpose of the TPP is to enhance trade and investment among partner countries, promote innovation, economic growth and development, and support the creation and retention of jobs. Some commentators believe the agreement is intended to counter China’s role in regional integration and contain China’s economic rise.

The TPP has met with criticism one would expect of a large multilateral free trade proposal, exacerbated by the public’s limited access to the negotiations.  Negotiations are open only to stakeholders, which predominantly consists of large corporations as well as small businesses. The potentially stringent intellectual property provisions and investment protection, which go beyond standards found in other international agreements (such as TRIPS and GATS), in particular, have been cause for concern. Some countries’ negotiators are reluctant to agree to far-reaching text proposed by the United States.

The TPP has also been subject to the standard criticisms of liberalization measures, such as the undue influence of corporate interests and the unfair exploitation of labor. The familiar complaints may be explained by the dichotomy of classical versus Keynesian economics. Classical economics holds that economic resources will flow to where they are most efficiently utilized in the long run, whereas John Maynard Keynes famously remarked, “In the long run, we are all dead.” As the global economy shifts to favor higher skilled labor and long-term, capital intensive projects, nations will realize that protecting domestic labor from foreign interests is a losing proposition and will only result in a stagnant economy akin to Venezuela’s. The world should expect more of these large free trade proposals in the near future: just this February, Secretary of State John Kerry called for a free trade agreement with Europe. Meanwhile China, Japan, and Korea have been discussing a free trade agreement of their own.

Although these free trade policies show no sign of subsiding, citizens around the world should remain vigilant in protecting issues overlooked on the international stage. Consequences from the export of subsidized commodities or the environmental impact of mining or manufacturing should continue to be vigorously exposed and publicized. Although the digital revolution has increased the pressures of globalization, it has also given average citizens the tools to unite and fight injustice.

 

 Alex Milgroom is a University of Denver 2L and staff editor of the Denver Journal of International Law and Policy. Alex is currently studying abroad at Temple University Japan.

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President Barack Obama

Lessons to Heed in the Wake of the Free Trade Trilogy

President Barack Obama is currently intensifying talks with Colombia, Panama and South Korea regarding proposed free trade agreements (FTA) inherited from the Bush Administration. The President hopes to submit all three agreements to Congress by the end of the year.  Worrisome is that similar provisions granting substantial investor rights as those written in precursor agreements, such as NAFTA and CAFTA, are included within each of the prospective pacts, which threaten the public good of the international community.

Within the last 15 years, there has been an explosion of bilateral and multilateral FTAs around the world.  Proponents of trade agreements argue that such pacts are valuable tools for increasing foreign investment, promoting fair competition and encouraging transparent regulations.  However, in order to encourage investments by foreign multinational corporations in signatory nations, FTAs incorporate investor protection provisions that defy public interest policy by bypassing domestic regulations.  Specific provisions included in FTAs that are particularly damaging to the public interest include: (1) provisions that provide for “expropriation and compensation” to investors when the investor feels that the host nation has breached its duties under the FTA; and (2) provisions that contain relaxed regulations regarding nationality requirements for investors wishing to bring arbitration claims against signatory nations.

President Barack Obama

President Barack Obama

A good illustration of the risks posed by state-investor enforcement terms is apparent in Pac Rim Cayman LLC v. Republic of El Salvador, which is currently pending before a CAFTA arbitration panel.  The Canadian mining company, Pacific Rim, sought to establish “El Dorado”, a gold mine in El Salvador’s largest watershed, the Rio Lempa, which flows not only through El Salvador but also through the neighboring countries of Guatemala and Honduras.  Pacific Rim planned to use appalling amounts of water and cyanide to extract gold from the ore it plans to excavate.

Within the most densely populated country in Latin America, over 96% of the surface water in El Salvador is contaminated and 1.5 million people, a quarter of the population, lack access to clean water.  The threat of gold processing chemicals leaking into the Rio Lempa would affect thousands that rely on the Rio Lempa for clean water and farming to meet their basic needs.  Staunch local activism against the exploitation of Pacific Rim’s proposed gold mine prompted the Salvadoran Government to investigate and eventually refuse to issue an exploitation permit that would allow the establishment of “El Dorado”.

In 2008, the Salvadoran President, Elias Antonio Saca, announced that El Salvador would not grant any exploitation permits until the government modernized current mining laws, in addition to critically analyzing the environmental impact of proposed mines.  That same year, Pacific Rim ceased exploratory drilling, and the Canadian-based mining company changed its course of action.  Aware that El Salvador became a signatory nation to CAFTA, Pacific Rim chose to reincorporate one of its subsidiaries, Pac Rim Cayman LLC, to Nevada.  With a subsidiary now incorporated within the United States, Pacific Rim seized the opportunity to forum shop, thus permitting the corporation to file suit against El Salvador under CAFTA’s investor-state enforcement provisions.  Specifically, Pac Rim is claiming that by denying the mining permit, El Salvador expropriated any future earnings and therefore demanded hundreds of millions in compensation for possible losses in future earnings.

Thus, a legitimate fear surrounds the notion that if investor claims succeed, such as those brought by Pac Rim against El Salvador, signatory governments of FTAs with strong investor-state enforcement terms will avoid implementing new laws that promote the public interest in fear of owing millions to foreign corporations through arbitration claims brought under the FTA.  The risk, therefore, is the long term, detrimental impact that investor rights have when incorporated into FTAs, preventing domestic policy change that aim to protect the ecosystem or further public health and human rights initiatives. With the price of gold now soaring, numerous foreign mining investors have filed for expropriation permits in El Salvador alone.  Irrespective of the arbitration panel’s decision in Pacific Rim Cayman, El Salvador, one of the hemisphere’s poorest nations, will be forced to pay millions to defend itself against investor to uphold policy that protects indigenous rights, public health and the environment.

Congress cannot simply ignore the negative impact investor-state enforcement terms have once applied in international tribunals.  The United States – Korea FTA creates an additional component that is relevant to this discourse.  Unlike U.S. pacts with developing nations, South Korea, like the U.S., is a major capital exporter.  South Korea has 85 multinational companies with over 250 establishments operating in the United States.  Lori Wallach, director of Public Citizen’s Global Trade Watch, stated that under the proposed U.S.-Korea FTA, “Korean firms operating [in the U.S.] would get new rights to skirt [the U.S.] court system and laws and use foreign tribunals to demand taxpayer compensation for laws that they do not like, just like Pac Rim is doing to El Salvador.”

The United States must take note of the lessons exposed through previously arbitrated and currently pending cases that elucidate the danger of increased investor-rights in FTAs before it ratifies future trade agreements that defy the greater public good.  Congress must implement changes to state-investor enforcement terms to ensure that FTAs comport with the minimum standards of international customary law.

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