Abstract
Within the global economy, the European Union (EU) and the United States (US) are engaged in a form of structural competition in which each uses bilateral, regional and multilateral agreements to protect and advance its own interests. In international trade, the EU and the US have followed a similar pattern involving the selection of the most favourable regulatory venue for the achievement of greater liberalisation. Using the stick of exclusion from and the carrot of inclusion in the preferential access to their respective markets, the two commercial superpowers established their networks of asymmetric preferential trade agreements with selected, economically weaker, politically like-minded countries or groups of countries. The extension of their networks may allow them in the future to establish plurilateral rules of trade involving them and their partners while their alliance would have allowed them to increase their leverage in the future international trade negotiations or even create an EU/US-led trade organisation and marginalize the World Trade Organisation (WTO). Although now a rather distant prospect, such an alliance may not have been that desirable for it may have altered the equilibrium of power between the strongest players of the international trade inducing unsympathetic countries to institutionalise their own alliances, leading to the fragmentation of international trade and jeopardising the existence of the WTO.
Research Fellow at the Centre for American Legal Studies, Birmingham City University, UK. The author may be contacted at panayotis.protopsaltis@bcu.ac.uk. This chapter is an updated version of a paper presented at the Workshop of the International Economic Law Interest Group of the ESIL, held in Riga on 7 September 2016, a couple of months before the election of Donald Trump and well before the US withdrawal from the TPP. The author would like to thank Prof. Elisa Baroncini and Prof. Peter-Tobias Stoll for their invitation as well as Prof. Laurence Boisson de Chazournes, Ms. Vivian Daniele Rocha Gabriel and the two anonymous reviewers for their comments and suggestions.
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Notes
- 1.
Nye and Welsh 2011, at 257–259.
- 2.
Paul 2004, at 5.
- 3.
Walt 1987, at 17–21.
- 4.
For an analysis, see Brawley 2004, at 81.
- 5.
Ibid., at 76.
- 6.
On the struggle between alliances and counter alliances, see Morgenthau 2005, at 200–204.
- 7.
Power refers to the economic, military and related capabilities of the State whereas prestige refers primarily to the perceptions of other States with respect to a State’s capacities and its ability and willingness to exercise power (Gilpin 1983, at 31).
- 8.
Some claim that structural power, namely, the possession or control over material resources, and thereby control over knowledge and ideas influences the course of institutional bargaining, namely, the efforts of autonomous actors to reach an agreement on the terms of constitutional contracts or interlocking rights and rules that are expected to govern their subsequent interactions (Young 1991, at 282, 288). However, while some see an absolute positive correlation between structural power and institutional bargaining, on the assumption that the most powerful participants shape the outcome of the negotiation terms, others focus instead on the interplay between the possession of structural power and the achievement of bargaining leverage to conclude that the possession of structural power does not automatically translate into bargaining leverage (Young 1994, at 117–141). Others, finally, claim that the bargaining power among states and the outcomes of negotiations are defined principally by the relative prestige of the parties involved (Gilpin 1983, at 31).
- 9.
Gilpin 1983, at 35.
- 10.
Krasner 1991, at 340.
- 11.
Gruber 2000, at 10.
- 12.
Keohane and Nye 2001, at 26–27.
- 13.
Nye and Welch 2011, at 258.
- 14.
Sbragia 2010, at 368 (footnotes omitted).
- 15.
As Weintraub explains, traditionally, US trade policy was to rely almost exclusively on the multilateral negotiations in the General Agreement on Tariffs and Trade (GATT) and avoid bilateral FTAs, ‘except with state trading countries whose import tariffs had little consequence on the direction of trade’. Nevertheless, in 1987, the US concluded the Canada-US FTA (CUSFTA), which led in turn to the adoption of NAFTA, and then to the Free Trade Areas of the Americas initiative (Weintraub 2003, at 8). Similarly, according to Gantz, although for the most part of the post-World War II period the US has exercised leadership in global efforts to achieve freer trade, focusing almost exclusively on the GATT, ‘the year 1985 marked a pivotal period in US foreign trade policy. The United States began to depart from its long-standing opposition to regional trade agreements’ (Gantz 2008, at 116).
- 16.
Gantz 2016, at 302–303.
- 17.
The strategy of managed globalisation involved the framing of commercial liberalisation with restrictive rules and international institutions, the promotion of multilateralism, the inclusion of the periphery in the international commercial negotiations, the export of European practices and values and the redistribution of the costs and benefits of the globalisation both in and abroad (Meunier 2007, at 514).
- 18.
Elsig 2007, at 927.
- 19.
Sbragia 2010, at 369.
- 20.
Ibid., at 368–370, passim.
- 21.
García 2013, at 524.
- 22.
Sapir 2007, at 13.
- 23.
The term is used here to include the EU EPAs and Association Agreements as well as the US FTAs.
- 24.
- 25.
According to Sherov-Ignatiev and Sutyrin, ‘[a]symmetry refers to the dominant role of one member state and reveals itself in the agreements' elaboration process, mutual concessions, distribution of costs and benefits between the participants’ (Sherov-Ignatiev and Sutyrin 2011).
- 26.
Australia (2005), Bahrain (2006), Canada (1987), Chile (2004), Colombia (2011), Israel (1985), Jordan (2001), South Korea (2011), Morocco (2006), Oman (2006), Panama (2011), Peru (2007) and Singapore (2004).
- 27.
Canada and Mexico (1994).
- 28.
Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua and the Dominican Republic (2006).
- 29.
Australia, Brunei Darussalam, Chile, Japan, Malaysia, New Zealand, Peru, Singapore and Vietnam (2015).
- 30.
Indeed, according to Trump’s Trade Policy Agenda, ‘[t]he overarching purpose of our trade policy […] will be to expand trade in a way that is freer and fairer for all Americans. Every action we take with respect to trade will be designed to increase our economic growth, promote job creation in the United States, promote reciprocity with our trading partners, strengthen our manufacturing base and our ability to defend ourselves, and expand our agricultural and services industry exports. As a general matter, we believe that these goals can be best accomplished by focusing on bilateral negotiations rather than multilateral negotiations—and by renegotiating and revising trade agreements when our goals are not being met. Finally, we reject the notion that the United States should, for putative geopolitical advantage, turn a blind eye to unfair trade practices that disadvantage American workers, farmers, ranchers, and businesses in global markets’ (Office of the United States Trade Representative (2017) 2017 Trade Policy Agenda and 2016 Annual Report of the President of the United States on the Trade Agreements Program, March 2017, https://ustr.gov/sites/default/files/files/reports/2017/AnnualReport/AnnualReport2017.pdf, accessed 15 June 2017, at 1).
- 31.
The Yaoundé Conventions (First Yaoundé Convention (1964) and Second Yaoundé Convention (1971)) were replaced by the Lomé Conventions (Lomé I (1976), Lomé II (1981), Lomé III (1985), Lomé IV (1990) and Lomé IV bis (1995)), replaced in turn by the Cotonou Agreement (2000).
- 32.
See European Commission, Directorate General for Trade (2004) The European Union’s Generalised System of Preferences GSP, February 2004, http://trade.ec.europa.eu/doclib/docs/2004/march/tradoc_116448.pdf, accessed 15 June 2017.
- 33.
- 34.
On the Lomé waiver, see WTO, Fourth ACP-EEC Convention of Lomé, Decision of the Contracting Parties of 9 December 1994, L/7604, 19 December 1994; WTO, EC – The Fourth ACP-EC Convention of Lomé, Extension of Waiver, Decision of 14 October 1996, WT/L/186, 18 October 1996.
- 35.
On the Cotonou waiver, see WTO, European Communities - The ACP-EC Partnership Agreement, Decision of 14 November 2001, WT/MIN(01)/15, 14 November 2001.
- 36.
On the EPAs, see European Commission (2017) Economic Partnerships, updated 08 February 2017, http://ec.europa.eu/trade/policy/countries-and-regions/development/economic-partnerships/index_en.htm, accessed 15 June 2017; cf. Ziai 2016, at 116.
- 37.
Papua New Guinea and Fiji (2007); Antigua and Barbuda, Bahamas, Barbados, Belize, Dominica, Dominican Republic, Grenada, Guyana, Haiti, Jamaica, Saint Christopher and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Suriname and Trinidad and Tobago (CARIFORUM States) (2008); Cameroon (2009); Madagascar, Mauritius, Seychelles and Zimbabwe (2009); Burundi, Kenya, Rwanda, Tanzania and Uganda (Eastern African Community) (2014); Botswana, Lesotho, Mozambique, Namibia, South Africa and Swaziland (Southern African Development Community) (2016); Benin, Burkina Faso, Cape Verde, Côte d’Ivoire, Gambia, Ghana, Guinea, Guinea-Bissau, Liberia, Mali, Mauritania, Niger, Nigeria, Senegal, Sierra Leone and Togo (Economic Community of West African States and West African Economic and Monetary Union) (2014).
- 38.
Colombia and Peru (2012) as well as Ecuador (2016).
- 39.
Singapore (2014) and Vietnam (2015).
- 40.
EU-Iceland, Liechtenstein and Norway. See 1994 Agreement on the European Economic Area, OJ L 1, 3/1/1994, updated 1 August 2016 (‘EEA Agreement’).
- 41.
On trade relations between the EU and Switzerland, see European Commission (2017) Countries and Regions: Switzerland, updated 22 February 2017, http://ec.europa.eu/trade/policy/countries-and-regions/countries/switzerland/index_en.htm, accessed 15 June 2017.
- 42.
2014 Comprehensive Economic and Trade Agreement between Canada, of the one part, and the European Union and its Member States, of the other part, OJ L 11, 14/1/2017 (‘CETA’).
- 43.
The Central America Association Agreements include Honduras, Nicaragua, Panama, Costa Rica, El Salvador and Guatemala (2013).
- 44.
1997 Economic Partnership, Political Coordination and Cooperation Agreement between the European Community and its Member States, of the one part, and the United Mexican States, of the other part, OJ L 276, 28/10/2000 (‘EC-Mexico Global Cooperation Agreement’).
- 45.
2002 Agreement Establishing an Association between the European Community and its Member States, of the one part, and the Republic of Chile, of the other part, OJ L 352, 30/12/2002 (‘EC.-Chile Association Agreement’).
- 46.
The Euro-Mediterranean Association Agreements include Palestine (1997), Tunisia (1998), Morocco (2000), Israel (2000), Jordan (2002), Egypt (2004), Lebanon (2003) and Algeria (2005).
- 47.
FYROM (2001), Bosnia-Herzegovina (2008), Montenegro (2008), Albania (2009) and Serbia (2009).
- 48.
Moldova (2014), Georgia (2014) and Ukraine (2016).
- 49.
European Commission, Decision No 1/95 of the EC-Turkey Association Council of 22 December 1995 on implementing the final phase of the Customs Union, 96/142/EC, 22 December 1995.
- 50.
Kolsky Lewis 2011, at 21.
- 51.
Australia, Canada, Chile, Israel, Mexico and South Korea.
- 52.
Bahrain, Colombia, Costa Rica, the Dominican Republic, El Salvador, Guatemala, Honduras, Jordan, Morocco, Nicaragua, Oman, Panama, Peru and Singapore.
- 53.
Canada, Chile, Colombia, Costa Rica, the Dominican Republic, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama and Peru.
- 54.
Australia, Singapore and South Korea.
- 55.
Bahrain, Israel, Jordan, Morocco and Oman.
- 56.
See US Department of Commerce, Census Bureau, Economic Indicators Division (2017) Top U.S. Trade Partners Ranked by 2016 U.S. Total Export Value for Goods, http://www.trade.gov/mas/ian/build/groups/public/@tg_ian/documents/webcontent/tg_ian_003364.pdf, accessed 15 June 2017.
- 57.
Koh 2004, at 8.
- 58.
Gordon 2003.
- 59.
Koh 2004, at 8.
- 60.
Lusztig 1996, at 98.
- 61.
Weintraub 2003, at 9.
- 62.
Koh 2004, at 9.
- 63.
Gordon 2003.
- 64.
Bhagwati 2008, at 37.
- 65.
Brunei, Burma (Myanmar), Cambodia, Indonesia, Laos, Malaysia, the Philippines, Singapore, Thailand and Vietnam.
- 66.
Australia, China, India, Japan, South Korea and New Zealand.
- 67.
Hamanaka 2014a, at 16.
- 68.
Gantz 2013, at 270.
- 69.
See Office of the United States Trade Representative (2017) 2017 Trade Policy Agenda and 2016 Annual Report of the President of the United States on the Trade Agreements Program, at 1.
- 70.
Galal and Lawrence 2004, at 299.
- 71.
Ibid., at 326.
- 72.
Koh 2004, at 8.
- 73.
Rosen 2004, at 51.
- 74.
Griffith et al. 2017, at 4.
- 75.
FC Bergsten (2002) A Competitive Approach to Free Trade, Financial Times, 4 December 2002, https://piie.com/commentary/op-eds/competitive-approach-free-trade, accessed 15 June 2017.
- 76.
Thus, for example, defending the TPP initiative in 2015, President Obama affirmed that ‘[w]e have to make sure America writes the rules of the global economy. And we should do it today, while our economy is in the position of global strength. Because if we don’t write the rules for trade around the world -guess what- China will. And they’ll write those rules in a way that gives Chinese workers and Chinese businesses the upper hand, and locks American-made goods out’ (US President B. Obama, 8 May 2015, Beaverton, Oregon, https://obamawhitehouse.archives.gov/the-press-office/2015/05/08/remarks-president-trade, accessed 15 June 2017). Interestingly enough, Davis and Hilsenrath attributed the success of Donald Trump to the negative effects of the competition with China on US manufacturing counties’ households (B. Davis, J. Hilsenrath (2016) How the China Shock, Deep and Swift, Spurred the Rise of Trump, Wall Street Journal, 11 August 2016, http://www.wsj.com/articles/how-the-china-shock-deep-and-swift-spurred-the-rise-of-trump-1470929543, accessed 15 June 2017).
- 77.
Protectionist pressures are nurtured by the numerous tensions in US-China trade relationships stemming from China’s incomplete transition to a free market economy and the ever-increasing size of the American trade deficit with China (Morrison 2015, at 2–3).
- 78.
Gordon 2003.
- 79.
Gruber 2001, at 703–741.
- 80.
Gantz 2008, at 145.
- 81.
Weintraub 2003, at 10.
- 82.
Kolsky Lewis 2011, at 22.
- 83.
Burrell and Weatherall 2008, at 259, 270–278.
- 84.
Switzerland, Canada, Mexico and Turkey.
- 85.
See European Commission, Directorate General for Trade (2016) Client and Supplier Countries of the EU28 in Merchandise Trade (2015, excluding intra-EU trade), 4 November 2016, http://trade.ec.europa.eu/doclib/docs/2006/september/tradoc_122530.pdf, accessed 15 June 2017.
- 86.
Meunier and Nicolaϊdis 2006, at 911–912.
- 87.
See European Commission, Directorate for Trade (2017) European Union, Trade in goods with ACP Total (African Caribbean and Pacific Countries), 3 May 2017, http://trade.ec.europa.eu/doclib/docs/2006/september/tradoc_113340.pdf, accessed 15 June 2017.
- 88.
On the Gramscian concept of hegemony, see Williams 1960, at 587.
- 89.
Hurt 2003, at 174.
- 90.
European Commission, Directorate-General VIII Development, Reflection Group Partnership 2000, Green Paper on Relations between the European Union and the ACP Countries on the Eve of the 21st Century: Challenges and Options for a new Partnership, COM(96)570 final, 20 November 1996.
- 91.
Faber and Orbie 2009, at 45.
- 92.
Börzel and Risse 2009, at 5.
- 93.
Ibid., at 16.
- 94.
Cotonou Agreement, Article 25(2).
- 95.
Valladão 2015, at 121.
- 96.
The European Commission identified the key economic criteria for new FTA partners: ‘market potential (economic size and growth) and the level of protection against EU export interests (tariffs and non-tariff barriers)’ (European Commission, External Trade, Global Europe Competing in the World: A Contribution to EU’s Growth and Jobs Strategy, http://trade.ec.europa.eu/doclib/docs/2006/october/tradoc_130376.pdf, accessed 15 June 2017, at 11).
- 97.
- 98.
Barahona de Britto 2000, at 3. Similarly, as a French politician put it in the late 1990s, ‘[l]e précédent de l’intégration du Mexique à l’ALENA, avec ses conséquences très négatives sur le niveau des échanges entre l'Union européenne et le Mexique, doit nous encourager à aller de l’avant dans la relation avec le MERCOSUR et à veiller au parallélisme avec l’ALCA’ (Assemblée Nationale, Rapport d'information déposé par la Délégation de l'Assemblée nationale pour l'Union européenne, sur les relations entre l'Union européenne et le MERCOSUR et présenté par M. Alain Barrau, Député, No. 1721, 17 juin 1999, http://www.assemblee-nationale.fr/europe/rap-info/i1721.pdf, accessed 15 June 2017, at 7).
- 99.
Reiter 2003, at 65, 67–68.
- 100.
Barahona de Britto 2000, at 3. See also Council of the European Union (1994) Europe and Latin America: A Partnership for Action: Basic Document on the Relations of the European Union with Latin America and the Caribbean, European Commission, 31 October 1994, http://aei.pitt.edu/41670/1/A5819.pdf, accessed 15 June 2017, at 13–14.
- 101.
García 2013, at 531.
- 102.
Faber and Orbie 2009, at 41.
- 103.
Kolsky Lewis 2011, at 31.
- 104.
Cotonou Agreement, Article 36(1).
- 105.
Faber 2005, at 86.
- 106.
Kolsky Lewis 2011, at 32.
- 107.
European Parliament, Committee on International Trade, Working Document on Proposal for a Regulation of the European Parliament and of the Council Applying a Scheme of Generalised Tariff Preferences, C Fjellner (Rapporteur), DT\876720EN.doc, 28 September 2011, at 3.
- 108.
Schade 2016, at 73. On 18 December 2014, just before its graduation, Ecuador was given a two-year standstill on customs duties, amongst others, in return for the signature and ratification of the Protocol of Accession the Trade Agreement between the European Union and its Member States and Colombia and Peru (Regulation (EU) No 1384/2014 of the European Parliament and of the Council of 18 December 2014 on the tariff treatment for goods originating in Ecuador, OJEU L 372/5, Article 3(e)). Ecuador finally signed the Protocol of Accession on 11 November 2016 and joined the EU - Colombia/Peru Free Trade Agreement (See European Commission, Ecuador joins EU-Colombia/Peru trade agreement, Press Release, 11 November 2016, http://europa.eu/rapid/press-release_IP-16-3615_en.htm, accessed 15 June 2017).
- 109.
Discussing the effects of customs unions, Viner distinguishes between ‘commodities […] which one of the members of the customs union will now newly import from the other but which it formerly did not import at all because the price of the protected domestic product was lower than the price of any foreign source plus the duty’ and ‘commodities which one of the members of the customs union will now newly import from the other whereas before the customs union it imported from a third country because it was the cheapest possible source of supply even after payment of duty’. He further explains that ‘[t]he primary purpose of a customs union, and its major consequence for good or bad, is to shift resources of supply, and the shift can be either to lower- or to higher-cost resources, depending on circumstances’ (Viner 2014, at 53–54). Bhagwati explains that the traditional objection to PTAs was simply that ‘they could divert trade from cost-efficient non-member countries to the relatively inefficient member countries’, since non-member countries continue to pay pre-PTA tariffs whereas higher cost member countries benefit from lower tariffs (Bhagwati 2008, at 49).
- 110.
Viner 2014, at 175.
- 111.
Sherov-Ignatiev and Sutyrin 2011.
- 112.
Ibid.
- 113.
Gantz 2008, at 122.
- 114.
In that sense, García 2011, at 502.
- 115.
Horn et al. 2011, at 151–152.
- 116.
Ibid., at 166.
- 117.
Ibid., at 153, 160.
- 118.
The trade negotiating objectives include overall trade negotiating objectives and principal trade negotiating objectives. The latter refer to trade barriers and distortions as well as to trade in services (19 US Code, Chapter 24, para 3802 (Trade negotiating objectives)).
- 119.
Weintraub 2003, at 9.
- 120.
Articles XXIV of GATT 1994 and V of the GATS authorise regional trade agreements, namely free trade areas and customs unions provided that duties and other restrictive regulations of commerce are eliminated on substantially all the trade between the constituent territories in products originating in such territories. In addition, the WTO authorises preferential trade arrangements, namely unilateral, non-reciprocal trade preferences in favour of developing countries (See WTO Decision of 28 November 1979, L/4903. On the EU interpretation of the terms ‘substantially all trade’, see Hamanaka 2014b, at 59).
- 121.
Horn et al. 2011, at 152–153, 161–163, passim.
- 122.
Fontanelli and Bianco 2014, at 220.
- 123.
Horn et al. 2011, at 152.
- 124.
Ibid., at 169.
- 125.
Sapir 2007, at 12.
- 126.
- 127.
Roffe and Vivas-Eugui explains that ‘the US recently relaxed several patent-related IP rules in revised versions of its FTAs with Colombia, Panama and Peru’ (Roffe and Vivas-Eugui 2007, at 15).
- 128.
The EU-Chile and the EU-South Africa FTAs, for example, contain provisions on the protection of geographical indications for wines and spirits (Kampf 2007, at 114–115).
- 129.
Indeed, according to Sell, ‘[d]espite the fact that a TRIPS advocate triumphantly exclaimed, “we got 95% of what we wanted,” that 5% has always mattered, and 95% was never enough’ (Sell 2013, at 448).
- 130.
Mercurio 2006, at 219.
- 131.
Ibid., at 221.
- 132.
Weintraub 2003, at 10.
- 133.
See 19 US Code, Chapter 24, para 3802 (Trade negotiating objectives).
- 134.
The North American Agreement on Labor Cooperation and the North American Agreement on Environmental Cooperation.
- 135.
As Gantz rightly concludes, ‘virtually all of the U.S. FTAs, beginning with NAFTA, call for providing citizens of the Parties with opportunities for access to some kind of mechanism for addressing violations of the labor and environmental (and many other) obligations agreed to by the Parties’ (Gantz 2011, at 304).
- 136.
Kenner 2011, at 180.
- 137.
Erickson and Mitchel 1999, at 85.
- 138.
Cai 2016, at 511.
- 139.
For an overview of the problem in question, see Fung 2014.
- 140.
CETA, Article 21.1.
- 141.
As Gantz explains, even though the US remains one of the most open markets in the world, ‘long-standing U.S. policy continues to provide extensive protection to agriculture commodities, steel, textiles and clothing, among others’ (Gantz 2008, at 118).
- 142.
By way of illustration, the Association Agreements adopted in the context of the Euro-Mediterranean partnership exclude agriculture (Tovias 2010, at 174). Similarly, the Cotonou agreement excludes products competitive with those falling under the Community’s Common Agricultural Policy while the EU may take appropriate measures when imported products cause or threaten to cause serious injury to its domestic producers of like or directly competitive products or serious disturbances in any sector of the economy or difficulties which could bring about serious deterioration in the economic situation of a region (Bartels 2007, at 734).
- 143.
Tully claims that by concluding bilateral and regional agreements, the United States ‘is gaining greater influence over the domestic health care and drug coverage programs of its trading partners’ (Tully 2016, at 408). See also Lopert and Gleeson 2013, at 199; Baird 2013, at 125. I am indebted to Dr Mark Eccleston-Turner for pointing out this problem of the US FTAs to me.
- 144.
Erickson and Mitchel 1999, at 42.
- 145.
See Office of the United States Trade Representative (2017) 2017 Trade Policy Agenda and 2016 Annual Report of the President of the United States on the Trade Agreements Program, at 1.
- 146.
Weintraub 2003, at 8.
- 147.
The EU policy on selection of the regulatory venue for the achievement of greater liberalisation was repeatedly mentioned by EU officials and academics during the 16th Annual Conference on WTO Law organised by the British Institute of International and Comparative Law in Geneva (June 10–11, 2016).
- 148.
On the vertical forum shifting, see Sell 2013, at 451.
- 149.
- 150.
Mattoo and Wunsch 2004, at 20.
- 151.
Baldwin 2006, at 139.
- 152.
Sapir 2007, at 7.
- 153.
Kolsky Lewis 2011, at 19.
- 154.
Quiliconi and Wise 2009, at 104.
- 155.
Ruiz-Fabri 2012, at 357.
- 156.
Bhagwati 2008, at 61–70, passim.
- 157.
Ruiz-Fabri 2012, at 357.
- 158.
Horn et al. 2011, at 151.
- 159.
Kolsky Lewis 2011, at 21.
- 160.
Ibid., at 21–22.
- 161.
Ibid., at 22.
- 162.
Ibid., at 24.
- 163.
Ibid., at 30.
- 164.
Ibid.
- 165.
Sapir 2007, at 12.
- 166.
Limão 2011, at 178.
- 167.
From the legal point of view, BITs cannot give rise to a new custom because they lack the two elements of customary international law: State practice and opinio juris. And even if the repetition of BITs’ provisions was evidence of practice, these provisions cannot give birth to a new custom because their adoption is not considered obligatory by the States. And even if we admitted the existence of an opinio juris and the establishment of an opinio juris sive necessitatis, the birth of a new custom is obstructed by the divergence of BITs’ main provisions which does not allow us to discern the new custom’s content with certainty (Juillard 1994, at 129; Sornarajah 1994, at 227–228, 276; Guzman 1997, at 686).
- 168.
Kline and Ludema 1997, at 8.
- 169.
Sapir observed in 2007 that ‘the European Union and the United States are clearly the two “regulators of the world”. Although together they only account for about 40 percent of world GDP (at PPP) and world trade, they probably produce around 80 percent of the international norms and standards that regulate global markets, including the dollar and the euro’ (Sapir 2007, at 12).
- 170.
Schill and Bray 2016, at 412.
- 171.
Monardes 2016, at 392–394.
- 172.
Voon and Sheargold 2016, at 370.
- 173.
Sapir 2007, at 13.
- 174.
Sell 2013, at 452.
- 175.
Griffith et al. 2017, at 4–5, 9–10, passim.
- 176.
Ibid., at 13.
- 177.
See Office of the United States Trade Representative (2017) 2017 Trade Policy Agenda and 2016 Annual Report of the President of the United States on the Trade Agreements Program, at 1.
- 178.
Cf. Dolle and Simões 2016, at 620–621.
- 179.
Griffith et al. 2017, at 17.
- 180.
Mansfield 1998, at 527.
- 181.
See New Development Bank (2014) Agreement on the New Development Bank, 15 July 2014, http://ndbbrics.org/agreement.html, accessed 15 June 2017.
- 182.
Griffith et al. 2017, at 11.
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Protopsaltis, P.M. (2018). The Development of the US and the EU Preferential Trade Agreement Networks: A Tale of Power and Prestige. In: Amtenbrink, F., Prévost, D., Wessel, R. (eds) Netherlands Yearbook of International Law 2017. Netherlands Yearbook of International Law, vol 48. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-243-9_1
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