Author: caribbeantradelaw

Alicia Nicholls

The Comprehensive Economic and Trade Agreement (CETA) negotiated between the European Union (EU) and Canada appears to be in limbo as Belgium’s French-speaking Walloon region has said a strident non (no in French) to the deal. According to media reporting, two key issues appear to be sticking points for the Walloon government. Firstly, there are concerns about potential increased pork and beef imports from Canada which they believe would be disadvantageous to Walloon farmers. Secondly, there is disagreement about the investment court system mechanism proposed for the settlement of investor-state disputes which they argue is tilted in favour of investors and would infringe on states’ rights to regulate.

The other 27 EU countries (including the UK) have indicated their willingness to sign and so does the Belgium government. So how is it that a Belgium region of roughly 3.6 million out of a total EU population of 500 million could potentially veto a trade agreement which took in essence seven years to negotiate? The CETA is a mixed agreement which means that it requires signature and ratification by each EU member state in accordance with its own constitutional requirements. Under Belgium’s constitutional arrangements, each of that country’s regions must give its consent to the national government  to sign any trade agreement. The Walloon Government has declined to give its consent to the Belgium government to sign the CETA. This has given rise to the quandary now being faced.

The CETA is the EU’s most ambitious free trade agreement to date with a third party. It not only seeks to eliminate customs duties on all industrial goods and on most agricultural and food products, but covers trade in services, intellectual property, government procurement, investment, inter alia. The negotiations were officially completed in September 2014. The text has been legally reviewed but only becomes binding once the Agreement has entered into force.

CETA’s investment chapter is novel as it establishes a permanent investment court which would hear disputes brought by investors, allows for greater transparency in proceedings, defines more narrowly the circumstances under which investors can bring claims, includes an express right of states to regulate and includes an appeal system. This new system is a marked departure from the traditional ISDS system found in old school BITs and in investment chapters of most FTAs like the Trans-Pacific Partnership (TPP). CETA will replace the 8 bilateral investment treaties that currently exist between individual EU states and Canada and under which claims by investors were heard by ad hoc arbitration panels. The provisions in these BITs were tilted heavily in favour of the investor and lacked language protecting states’ regulatory rights. It should be noted that Belgium and Canada do not have a BIT.

This current showdown between Wallonia on the one hand, and the rest of the EU and Canada on the other is just the latest episode in the drama playing out between free trade and the rising anti-trade populism and consequent political opposition sweeping across western countries. For example, US ratification of the Trans-Pacific Partnership remains held up in the US Congress and whether it is indeed ratified is not a certainty given the rhetoric of both major presidential candidates. With regard to CETA itself, this is not the first hurdle the agreement has faced as earlier this year Bulgaria and Romania had raised objections to the agreement over Canada’s failure to remove visa requirements for Bulgarian and Romanian nationals.

The Monday deadline has been missed and it is the first time that one region in an EU country has threatened to derail a negotiated outcome with a third state, a prospect which is not just frustrating for EU leaders and Canada but raises questions about the reliability of the EU as a negotiating partner seeing that this agreement is with a western country with similar values on trade.

To this effect, Canada’s Minister of International Trade, Chrystia Freeland, is reported as stating as follows:

“Canada has worked, and I personally have worked very hard, but it is now evident to me, that the European Union is incapable of reaching an agreement — even with a country with the European values such as Canada, even with a country as nice and patient as Canada.”

Another question is what does this state of affairs mean for the future BREXIT negotiations once the UK makes its Article 50 notification? Some commentators had previously argued that CETA might have been a suitable model for future EU 27-UK relations as it does not involve the free movement of labour. This issue was raised by EU Commissioner, Cecilia Malmstrom, who is quoted in media reports as saying “If we can’t make it with Canada, I’m not sure we could make it with the UK.”

Alicia Nicholls, B.Sc., M.Sc., LL.B. is a trade and development consultant with a keen interest in sustainable development, international law and trade. You can also read more of her commentaries and follow her on Twitter @LicyLaw.