LOCKED IN OR LEFT OUT? Transatlantic Trade Beyond Brussels and Washington. Sinan Ülgen - PDF

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LOCKED IN OR LEFT OUT? Transatlantic Trade Beyond Brussels and Washington Sinan Ülgen JUNE 2014 LOCKED IN OR LEFT OUT? Transatlantic Trade Beyond Brussels and Washington Sinan Ülgen 2014 Carnegie Endowment

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LOCKED IN OR LEFT OUT? Transatlantic Trade Beyond Brussels and Washington Sinan Ülgen JUNE 2014 LOCKED IN OR LEFT OUT? Transatlantic Trade Beyond Brussels and Washington Sinan Ülgen 2014 Carnegie Endowment for International Peace. All rights reserved. Carnegie does not take institutional positions on public policy issues; the views represented herein are the author s own and do not necessarily reflect the views of Carnegie, its staff, or its trustees. No part of this publication may be reproduced or transmitted in any form or by any means without permission in writing from Carnegie Europe or the Carnegie Endowment. Please direct inquiries to: Carnegie Endowment for International Peace Publications Department 1779 Massachusetts Avenue NW Washington, D.C P: F: CarnegieEndowment.org Carnegie Europe Rue du Congres Brussels Belgium P: F: CarnegieEurope.eu This publication can be downloaded at no cost at CarnegieEurope.eu. CP 213 Contents About the Author v Summary 1 Introduction 3 A Justifiable Interest From Third Countries 4 Eliminating Nontariff Barriers 10 Designing a Dispute Settlement Mechanism 13 The Way Forward for Third Countries 15 Notes 17 Carnegie Europe 18 About the Author Sinan Ülgen is a visiting scholar at Carnegie Europe in Brussels, where his research focuses on the implications of Turkish foreign policy for Europe and the United States, particularly with regard to Turkey s regional stance and its role in nuclear, energy, and climate issues. He is a founding partner of Istanbul Economics, a Turkish consulting firm that specializes in public and regulatory affairs, and chairman of the Center for Economics and Foreign Policy Studies, an independent think tank in Istanbul. Ülgen has served in the Turkish Foreign Service in several capacities: in Ankara at the United Nations desk ( ); in Brussels at the Turkish Permanent Delegation to the European Union ( ); and at the Turkish embassy in Tripoli (1996). He is a regular contributor to Turkish dailies, and his opinion pieces have been published in the International Herald Tribune, the Financial Times, the Wall Street Journal, European Voice, and Le Figaro. He is the author of The European Transformation of Modern Turkey with Kemal Derviş (Centre for European Policy Studies, 2004) and Handbook of EU Negotiations (Bilgi University Press, 2005). v Summary Many countries are interested in the Transatlantic Trade and Investment Partnership (TTIP) that Brussels and Washington are negotiating. But the United States and the European Union (EU) began talks without devising a way to involve their main trade partners. This approach, understandable given the complexity of the negotiations, could produce a bilateral agreement that is difficult to multilateralize. To influence the negotiations, third countries interested in eventually joining TTIP should pursue an agenda centered on the accession mechanism, the elimination of nontariff barriers, and dispute settlement. Enlargement Paths and Challenges Brussels and Washington have said that after TTIP is concluded bilaterally, interested third parties will be invited to join, but it is unclear how accession or association will be engineered. To move closer to TTIP, countries could conclude their own free trade agreements with the United States, the EU, or both. A more advanced option is to conclude bridge agreements between TTIP and the pertinent regional trade agreements. But in these scenarios, third countries would not be part of TTIP and would not play a central role in setting new norms. To genuinely solve the enlargement problem, a specific provision for accession needs to be included in the TTIP agreement. The way in which the agreement eliminates nontariff barriers will have significant consequences for countries aspiring to join the partnership because different approaches will have different impacts on the economies and competitiveness of candidates. The design of a dispute settlement mechanism matters because TTIP s enlargement will add a new layer of rulemaking to the arrangements in existing regional trade agreements, which could create competing jurisdictions and conflicting remedies. Recommendations for Third Countries Help design an accession process that can resist politicization. Establishing a committee of experts tasked with the technical review of the level of preparedness 1 2 Locked In or Left Out? Transatlantic Trade Beyond Brussels and Washington of candidate countries and developing a decisionmaking process that makes it impossible for one country to prevent another s accession are important steps. Promote the principle of mutual equivalence to eliminate nontariff barriers. This approach would allow existing regional trade agreements to be used as the building blocks in the new international trading regime set up by TTIP. Encourage the design of a flexible dispute settlement mechanism. New members should be fully represented in the process, and a rule of precedence for TTIP, the World Trade Organization, and other regional trade agreements should be established. Form a TTIP caucus or a joint platform to directly interact with Washington and Brussels. Such a platform will allow third countries to work together to determine their positions and influence the outcome of negotiations. Introduction Faced with the prospect of a relative decline in their global economic influence, the world s two largest economies have decided to create a seamless transatlantic marketplace. The Transatlantic Trade and Investment Partnership (TTIP) initiative has been welcomed on both sides of the Atlantic as a grand plan for revitalizing economic growth and enhancing international competitiveness. Expectations from TTIP are significant it could bring annual economic gains of about 119 billion ($164 billion) to the European Union (EU) and 95 billion ($131 billion) to the United States. 1 However, interest in TTIP is not limited to Brussels and Washington. Many other capitals follow developments on TTIP closely and have displayed a willingness to eventually be included in this economic endeavor, for both political and economic reasons. Despite this interest on the part of their leading trade partners, Brussels and Washington have opted to start TTIP negotiations without devising a formal solution for the direct or indirect involvement of third parties. The current EU-U.S. stance is that once TTIP is concluded bilaterally, interested third parties will then be invited to join. This exclusionary behavior is justified on the grounds of the complexity of the envisaged negotiations. The EU and the United States argue that it is not even known at this stage whether current differences between Washington and third countries on many topics can actually be bridged. So both sides have resisted the inclusion of additional partners to avoid compounding an already challenging negotiating environment. This approach has a certain merit, but it also conceals a danger. The risk is that the United States and the EU may end up concluding an essentially bilateral deal that, even with the best of intentions, would be difficult to transform into a truly multilateral agreement. A purely bilateral pact would undermine future efforts to open TTIP up to the accession of interested third parties. In other words, negotiating a bilateral trade agreement from the start is very different from working toward a multilateral deal for which an initial EU-U.S. agreement is only a stepping stone. The EU and the United States have an interest in devising, from the outset, a TTIP that can be multilateralized to minimize any potential political friction when other Western countries join in the future. Such an approach would be compatible with the current positions of Brussels and Washington and would confirm that TTIP is open to the accession of interested third parties. The Transatlantic Trade and Investment Partnership has been welcomed as a grand plan for revitalizing economic growth and enhancing international competitiveness. 3 4 Locked In or Left Out? Transatlantic Trade Beyond Brussels and Washington Retaining the prospect of accession is indispensable to safeguard the cohesion of the transatlantic community and to prevent new divisions from emerging. This political commitment to an open door policy for TTIP should also be reflected in the structural provisions of the agreement. While the onus for this task is on the original TTIP members, this stipulation should also form the basis of a new strategy of engagement for countries interested in eventually joining TTIP. Instead of securing an uncertain commitment about the prospect of their eventual accession, third countries should focus their efforts on a few critical areas of TTIP that might constitute barriers to the agreement s enlargement or raise the cost of acceding to it. The three critical issues that will have a bearing on the multilateralization of TTIP are accession, elimination of nontariff barriers, and dispute settlement. A Justifiable Interest From Third Countries There are legitimate political and economic considerations that in tandem have kindled the interest of third countries in joining TTIP. A changing geopolitical landscape, together with an assertive Russia that has become an adversary of the West, generates a new dynamic for strengthening the transatlantic alliance. TTIP increasingly appears to be the economic backbone of such a revitalized relationship. Limiting TTIP s membership to the EU and the United States would therefore be tantamount to introducing new and unwanted divisions within the Western alliance a fortress TTIP approach. Preempting this outcome has become the political objective of non- Limiting TTIP s membership to the EU and EU members of the North Atlantic Treaty Organization the United States would be tantamount (NATO) like Norway and Turkey, which consider TTIP to introducing new and unwanted membership indispensable to preserve their status within an divisions within the Western alliance. evolving and deepening transatlantic community. There are also important economic considerations behind the desire of third countries to be part of TTIP. If they are left out of this emerging transatlantic market, third countries will be faced with economic losses. There are three categories of such losses. The first set of potential losses derives from the phenomenon of preference erosion. TTIP will make U.S. exporters more competitive in EU markets and EU exporters more competitive in the U.S. market. As a result, third countries will lose their tariff advantages and therefore some of their competitive edge in the U.S. or EU markets vis-à-vis European or American exporters respectively. According to estimates by the Ifo Institute for Economic Research, Canada s economic losses could reach 10 percent of its national income. For Turkey, the predicted figure is 2.5 percent of national income, or about $20 billion. 2 The second category of losses relates to trade diversion, which stems from asymmetries in market access. This scenario applies specifically to Turkey, Sinan Ülgen 5 which, unlike all of the EU s other trading partners, has a customs union with the EU. Following the conclusion of TTIP, U.S. exporters will enjoy tariff-free access to the Turkish market, but Turkish exporters will not benefit from the same ease of market access in the United States. A third set of losses for third countries is linked to service liberalization and the harmonization of nontariff barriers under TTIP. These processes can lead to significant trade diversion within TTIP, to the detriment of nonmembers. The more exposed third countries exports are to TTIP regulations on standards, services, government procurement, and intellectual property rights, the larger these losses will be. More generally, the impact of TTIP on nonmembers will depend on the nature of their current trade relationship with the United States or the EU. Countries that already have a free trade agreement with the original TTIP parties benefit from an insurance policy against potential losses from trade diversion. By creating a prior degree of policy convergence in areas like standards and regulation of services, these countries existing preferential agreements would minimize the problems of market access due to differences in regulatory and nontariff barriers between them and TTIP members. If successfully concluded, TTIP will create an almost hegemonic pole of global standard setters. The parties ability to set global standards on trade, intellectual property rights, investment protection, and similar fields would give their economies a sustainable competitive edge. Third countries will want to be part of this global standard-setting exercise instead of staying on the sidelines they want to be rule makers rather than rule takers. Developing an Effective Accession Mechanism The assumption in Brussels and Washington that third countries will be able to join TTIP at some point in the future has not been fleshed out, and it is currently unclear how such accession or association will eventually be engineered. But if TTIP is to be multilateralized, the negotiating parties should agree on the specific procedure for TTIP enlargement during their current talks. Postponing this decision until the time of actual enlargement will create unwanted difficulties and possibly unnecessary political friction. From the outset, the original TTIP partners should clearly determine the conditions parties should agree on the specific procedure If TTIP is to be multilateralized, the negotiating under which TTIP accession can take place and the specific rules that will guide the process of enlargement. for TTIP enlargement during their current talks. Bringing clarity to the issue of enlargement will enable Brussels and Washington to better withstand pressure from third countries to be directly involved in the ongoing TTIP negotiations. Addressing current uncertainties surrounding TTIP s potential enlargement will also enhance the political credibility of TTIP s open-door policy. 6 Locked In or Left Out? Transatlantic Trade Beyond Brussels and Washington Various Approaches One accession option that has been articulated is for interested countries to conclude their own free trade agreements with the United States and the EU. For countries that already enjoy an advanced degree of economic integration with either of the parties for instance, Mexico and Canada (members of the North American Free Trade Agreement, or NAFTA), Norway and Switzerland (members respectively of the European Economic Area, or EEA, and the European Free Trade Agreement, or EFTA), or Turkey (which has a customs union with the EU) this would mean concluding a free trade agreement with the other TTIP partner. So, Mexico and Canada would seek to sign a more comprehensive deal with the EU, while Norway, Switzerland, and Turkey would strive to initial a similar agreement with the United States. Devising supplementary free trade The drawback of devising supplementary free trade agreements would merely create a web of agreements is that it would merely create a web of such such deals. It would not actually result in deals. It would not actually result in the third countries the third countries becoming part of TTIP. becoming part of TTIP. A more advanced version of this approach is to conclude bridge agreements between TTIP and the relevant regional trade agreements, for example between TTIP and NAFTA and between TTIP and EFTA. TTIP enlargement would then take place through these bridge agreements, which would allow some of the mutual concessions negotiated under the TTIP umbrella to be extended to the countries party to the regional trade agreement. One potential complication of the bridge approach relates to the harmonization of the rules of origin between TTIP and the regional trade agreements. If TTIP and NAFTA cannot harmonize their rules of origin despite a bridge agreement between them, this can impact trade flows. Given existing differences between NAFTA and EU rules of origin, this is more than a purely theoretical discussion. 3 Conditioning the bridge agreements on the harmonization of rules of origin may be necessary to ensure free trade. But this conditionality would amount to forcing NAFTA and EFTA to adopt the same rules of origin if separate bridges were to bind both NAFTA and EFTA to TTIP. This would in turn require an overhaul of the complicated rules of origin adopted by these regional trade agreements. Even if these challenges could be overcome, the network of bilateral transatlantic free trade agreements would not offer a genuine solution to the challenge of TTIP accession. The proliferation of partnerships would allow only limited scope for third countries to redress the adverse impact of being excluded from TTIP. A system of bridge agreements would permit third parties to equalize their competitive disadvantage but would not give them a place at the table where the new global norms are formulated. Sinan Ülgen 7 In the case of Norway, after concluding a free trade agreement with the United States, the country would gain preferential access to the U.S. market. It would therefore be able to eliminate its competitiveness gap vis-à-vis the EU in the U.S. market due to prevailing tariff preferences. But Norway s free trade deal with the United States would not allow the country to benefit from TTIP s various institutional provisions, including the ability to contribute to the design of new global standards for trade and investment. Thus, without an option of outright accession, third countries would need to accept a permanently reduced role in this new world of trade policy norm setting. A genuine solution would require the TTIP agreement to contain a specific provision for accession by nonmember countries. A Complex Process The workability of TTIP s eventual accession mechanism will depend on how the agreement s original partners decide to address the inevitable politics of its enlargement. The parties could treat TTIP like an international convention in which accession is linked to the agreement s ratification by third countries. This is the method adopted for many international accords, ranging from the Kyoto Protocol on greenhouse gas emissions to the Nuclear Non- Proliferation Treaty. In such cases, acceding states ratify the international treaty according to their own constitutional The workability of TTIP s eventual accession requirements and notify the international secretariat. mechanism will depend on how the agreement s This formula is a workable solution for international original partners decide to address the conventions that do not impose on states already party inevitable politics of its enlargement. to the agreement an obligation to extend concessions to new parties. When a new state accedes to the Kyoto Protocol, all other states party to the convention stand to benefit uniformly from its accession. Likewise, when a new state adheres to the Nuclear Non- Proliferation Treaty, the whole world is better off with a strengthened antiproliferation regime. As intellectually appealing and functionally simple as this option may be, an accession mechanism that relies on the domestic ratification of acceding parties is not a politically acceptable solution for TTIP. This is because the accession of new parties will necessarily involve concessions that will inflict costs on specific groups in states that are already party to TTIP. Some of this impact will be negative: EU autoworkers may be adversely affected if and when Mexico, with its sizeable auto industry, becomes a TTIP partner. The distributional impact of these economic costs is important. A more realistic possibility is to build in a procedure of approval by existing TTIP parties for any new entrant. This is a requirement that would raise no serious objections given that it is essentially the rule for e
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