Brexit, Trump and Trade: Fasten Your Seat Belts Bumpy Ride Ahead

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1 Antwerp 25 April 2017 Brexit, Trump and Trade: Fasten Your Seat Belts Bumpy Ride Ahead Ana Stanič English Solicitor Advocate Honorary Lecturer at Centre for Energy Petroleum and Mining Law and Policy, University of Dundee

2 Background Since 2001 USA is constantly at war Global inequality is worse than at any time since the 19 th century, From 1960 to today, based on the data from the Maddison Project, the absolute gap between the average incomes of people in the richest and poorest countries has grown by 135% According to the OECD median household incomes in USA, Germany, Japan, Italy, and France rose by less than 1 percent per year from the mid-1980s to 2008 Financial crisis of 2008 has seen an erosion of the middle class, and greater public awareness of income inequality; this has fed sentiment in the West that the costs of trade liberalization outweigh the gains One in every 112 persons in the world is a refugee, an internally displaced person, or an asylum seeker 1

3 Background Populism, characterized by a suspicion and hostility toward elites, mainstream politics, and established institutions, is emerging in the West and in parts of Asia IMF meeting surprisingly upbeat as forecasts for global growth raised for the first time in 6 years, particularly based on China s 6.9% per annum growth figures for first quarter But all could go horribly wrong says IMF! Fear mongering continues in Western press Brexit: desire for self rule Trump: the unknown 2

4 Paradox of Progress Achievements of the industrial and information ages are shaping a world to come that is both more dangerous and richer with opportunity than ever before An ever-widening range of states, organizations, and empowered individuals will shape geopolitics The era of American dominance following the Cold War is drawing to a close Democracy itself can no longer be taken for granted Rule-based international order that emerged after World War II is falling apart Grasping the future is complicated by the assumptions we carry around in our heads, often without knowing we do 3

5 International Trade Framework and Trump WTO Agreements; Bretton Woods Institutions TTP: On 23 January 2017 Trump signed an executive order pulling the US out of trade deal 1994 NAFTA: Trump wants to renegotiate it; draft letter to Congress reported by press a few weeks ago A Party may withdraw from this Agreement six months after it provides written notice of withdrawal to the other Parties. [Art. 2205] Investigations into Steel Imports ordered by Trump Raising tension with North Korea, Iran and China Trade wars with EU; executive orders re. travel bans 4

6 Rights accorded to Investors under BITs Ø Fair and Equitable Treatment ( FET ) Ø National Treatment ( NT ): accord treatment no less favourable than that which it accords to its own investors Ø Most Favoured Nation Treatment ( MFN ): accord treatment no less favourable than that accorded to investors from other states Ø Right to prompt and adequate Compensation in case of Expropriation and Nationalisation Ø Right to commence Arbitration in case of breach of the above-mentioned rights 5

7 Brexit: Referendum 23 June % British voters voted to leave the EU Turnout 71.8%, more than 30 million people voting England voted for Brexit: 53.4% Wales voted for Brexit: 52.5% Scotland backed Remain : 62% Northern Ireland backed Remain : 55.8% 6

8 Brexit: What do we know already Brexit was triggered on 29 March 2017 UK says it is ready to walk away from talks with no deal and base future trade relations with the EU on World Trade Organisations rules UK is a member of the WTO in its own right Provided UK maintains tariff and service sector commitments which are identical to those presently submitted on its behalf by the EU to WTO it will be difficult to use WTO as a means to gain leverage over the UK But under the WTO Agreements and the over 50 free trade agreements that the EU has signed with third states, tariff rate quotas and agricultural subsidies are set for the EU as a whole So Brexit negotiations will be multilateral and involve multiple stakeholder 7

9 Brexit: What do we know already? UK is trying to link the outcome of the Brexit talks and Britain s contribution to Europe s defence and security President Tusk proposes to give Spain Veto on Brexit re. Gibraltar UK General election scheduled for 8 June 2017 Possible break-up of UK 8

10 EU: What is happening at the moment? French Presidential Elections: First Round last weekend No willingness to address the concern of the electorate: business as usual Lisbon Treaty ratified without a referendum in most countries, re. ran of referendum in Ireland EU/Ukraine Association Agreement: special declaration to address Dutch concerns CETA: Joint Declaration on 27 October 2016 after Walloons refuse to ratify the treaty German Elections Catalan referendum 9

11 EU and its Relation with International Law BIT/ECT EU Law Free transfer of capital Free movement of capital Fair and equitable treatment Prohibition of discrimination Indirect expropriation Freedom of establishment Full security and protection Freedom of establishment Free transfer of capital Arbitration Clause Free movement of capital Damage claim against the state before national courts EU law re. legitimate expectation, non-discrimination etc IS NOT THE SAME AND, IN FACT, MAY BE INCOMPATIBLE with rights accorded to investors under BIT 10

12 EU and its Relation with International Law March 2015: Ioan Micula, Viorel Micula, S.G. European Food S.A. et al v. Romania June 2016: EC finds tax benefits of up to 13 billion granted by Ireland to Apple amount to State aid EU-Singapore FTA: Decision of Court of Justice of EU expected by mid-of this year CETA: mixed agreement and therefore needs to be approved by EU Parliament and Parliaments of 28 MS (including certain regional Parliaments) EU s attempt to apply its law extraterritorially is causing problems 11

13 Key Takeways: Grasp the Nettle Although material strength will remain essential to geopolitical and state power, the most powerful actors of the future will draw on networks, relationships, and information to compete and cooperate Resilient companies and countries Key Identify potential opportunities and trade offs in creating the future, rather than just responding to it Don t be another Kodak or Nokia Ø International Convention for the Control and Management of Ships' Ballast Water and Sediments enters into force September

14 Key Takeways: Grasp the Nettle Ø Annex VI of International Convention for the Prevention of Pollution from Ships (MARPOL) on the regulation for the Prevention of Air Pollution from Ships seek to control airborne emissions from ships (SOx, NOx, ODS, VOC shipboard incineration) q Ships will have to use fuel oil on board with a sulphur content of no more than 0.50% m/m from January 2020 q Emission Control Areas: the Baltic Sea area; the North Sea area; the North American area (covering designated coastal areas off the United States and Canada) where emission is 0.10% m/m Multilateralism: only way forward Key will be how quickly we are able to put in place new institutions at the supra-national levels 13

15 Thank you for your attention Ana Stanič E&A Law Limited

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