what state p olicy ma kers need to kno w...rule except? tariffs taxes regulations mkt. part....

Robert StumbergHarrison Institute for Public Law

Georgetown University Law Center

What State Policy Makers Need to KnowTrade Policy Leadership Seminar

Atlanta, GA ~ December 10, 2008

Need to know• Empower your state• Constrain your state


State


State

National


State

National

International

International

U.S. Trade Agreements



WTO - 153 nations

20 agreementsTrade disputes - yesInvestor disputes - noOngoing negotiations - yes



WTO - 153 nations


FTAs - 11 + 3 pending

20+ chaptersTrade disputes - yesInvestor arbitration - yesOngoing negotiations - yes



WTO - 153 nations


FTAs - 11 + 3 pending

20+ chaptersTrade disputes - yesInvestor arbitration - yesOngoing negotiations - yes

BITs - 39 US treaties

Single functionTrade disputes - noInvestor arbitration - yesOngoing negotiations - yes

Agreements that Affect States Directly


AgreementsTrade Rules



Goods Services Procure-ment

Subsidies Investment





WTO Agreements x x x x





WTO Agreements x x x xFree Trade Agreements x x x x





WTO Agreements x x x xFree Trade Agreements x x x xBilateral Investment Treaties x

Example - trade rules & fuels

Selected Policy OptionsTrade Agreements

Subsidies Goods Services Procurem’t Investment

Tariffs

Taxation & regulation

Market participation

Research & development

Example - trade rules & fuels

Selected Policy OptionsTrade Agreements

Subsidies Goods Services Procurem’t Investment

Tariffs T

Taxation & regulation D D R S D R S D

Market participation D D R D

Research & development D

Examples of Trade rules

Limits on tariffs (T)

Prohibitions on discrimination (D)

Limits on non-discriminatory taxes and regulations

Relevance to the service (proposed) (R)

Based on international standards (S)

18 Trade Rules that Cover Fuel Measures

These selected trade rules ... Apply to these transportation fuel policies

Rule Except? Tariffs Taxes Regulations Mkt. Part. Subsidies Tariff schedule

E - .54/gal FTAs X

E - 2.5% ad valorum FTAs X

Prohibition of discrimination

GATT - NT taxes / like or substitutable health, consv X

GATT - NT regs / like or substitutable health, consv X

GATT - Mixtures / domestic content health, consv X X

GATS - NT like services/suppliers health X X X

GPA - NT goods/services/suppliers n.a. X

SCM - domestic content (red light) expired X

SCM - serious prejudice (yellow light) expired X

INV - NT investors/investments subsidies X X X

Limits on non-discriminatory domestic law making

TBT - necessity test / tech regs no X X

TBT - use int’l standards appropriate X X

GATS - objectivity test health X X X

GATS - relevance test health X X X

GATS - pre-established health X X X

GATS - simplicity test / licensing health X X X

GATS - consider int’l standards health X X X

INV - minimum standard of treatment subsidies X X X

Biofuels & trade policy

State

National

International

Trade policy focus: Jobs & promoting exports

State

National

International


• Subsidy negotiationsUS proposals - Prohibit: Operating losses Non-standard loans Non-standard equity

State

National

International



• Services negotiationsGATS commitment - Research & development

State

National

International



• Services negotiationsGATS commitment - Research & development

• Data for developersGeographic coding, butNo import dataNo service data

State

National

International

Trade policy focus: Foreign investor rights

State

National

International


• US lawyers invent clarityExpropriationMinimum standard of treatment

State

National

International


• US lawyers invent clarityExpropriationMinimum standard of treatment

• New negotiationsChinaIndia

State

National

International

Trade policy focus: Climate & energy

State

National

International


• Cap & trade Regional state markets: WCI, RGGI

State

National

International


• Cap & trade Regional state markets: WCI, RGGI

• Transportation fuelsLow-carbon fuel standard - CA, MAInternational standard setting

State

National

International

Trade policy focus: Domestic regulation

State

National

International


• GoodsTransparency of law-makingGlobal database

State

National

International


• GoodsTransparency of law-makingGlobal database

• ServicesPublication mandate (proposed)

WORLD TRADE

ORGANIZATION

G/TBT/N/USA/340

11 January 2008

(08-0137)

Committee on Technical Barriers to Trade Original: English

NOTIFICATION

The following notification is being circulated in accordance with Article 10.6.

1. Member to Agreement notifying: UNITED STATES

If applicable, name of local government involved (Articles 3.2 and 7.2): State of

Vermont

2. Agency responsible: State of Vermont (351)

Name and address (including telephone and fax numbers, e-mail and web-site

addresses, if available) of agency or authority designated to handle comments

regarding the notification shall be indicated if different from above:

Senator Virginia Lyons

241 White Birch Lane

Williston, VT 05495 USA

Tel: +(802) 863 6129

Email: [email protected]

url: http://www.leg.state.vt.us

3. Notified under Article 2.9.2 [

], 2.10.1 [

], 5.6.2 [

], 5.7.1 [

], other: 3.2

4. Products covered (HS or CCCN where applicable, otherwise national tariff heading.

ICS numbers may be provided in addition, where applicable): Electronic devices

(ICS: 13.030, 13.020)

5. Title, number of pages and language(s) of the notified document: An Act Relating to

the Disposal of Electronic Waste, S256 (14 pages, in English).

6. Description of content: Proposes a system for the collection and recycling of electronic

devices.

7. Objective and rationale, including the nature of urgent problems where applicable:

Protection of human health and the environment

8. Relevant documents: -

9. Proposed date of adoption:

Proposed date of entry into force: -

1 July 2009

10. Final date for comments: -

11. Texts available from: National enquiry point [ X ] or address, telephone and fax

numbers, e-mail and web-site addresses, if available of the other body:

Internet URLs:

http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2008/bills/intro/S-256.HTM

WPDR draft Mandate to publish,

in addition to laws,

“details” about laws:

• licensing requirements

• qualification requirements

• technical standards

• appeal procedures

• enforcement process

• public involvement

WORLD TRADE

ORGANIZATION

G/TBT/N/USA/340

11 January 2008

(08-0137)

Committee on Technical Barriers to Trade Original: English

NOTIFICATION

The following notification is being circulated in accordance with Article 10.6.

1. Member to Agreement notifying: UNITED STATES

If applicable, name of local government involved (Articles 3.2 and 7.2): State of

Vermont

2. Agency responsible: State of Vermont (351)

Name and address (including telephone and fax numbers, e-mail and web-site

addresses, if available) of agency or authority designated to handle comments

regarding the notification shall be indicated if different from above:

Senator Virginia Lyons

241 White Birch Lane

Williston, VT 05495 USA

Tel: +(802) 863 6129

Email: [email protected]

url: http://www.leg.state.vt.us

3. Notified under Article 2.9.2 [

], 2.10.1 [

], 5.6.2 [

], 5.7.1 [

], other: 3.2

4. Products covered (HS or CCCN where applicable, otherwise national tariff heading.

ICS numbers may be provided in addition, where applicable): Electronic devices

(ICS: 13.030, 13.020)

5. Title, number of pages and language(s) of the notified document: An Act Relating to

the Disposal of Electronic Waste, S256 (14 pages, in English).

6. Description of content: Proposes a system for the collection and recycling of electronic

devices.

7. Objective and rationale, including the nature of urgent problems where applicable:

Protection of human health and the environment

8. Relevant documents: -

9. Proposed date of adoption:

Proposed date of entry into force: -

1 July 2009

10. Final date for comments: -

11. Texts available from: National enquiry point [ X ] or address, telephone and fax

numbers, e-mail and web-site addresses, if available of the other body:

Internet URLs:

http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2008/bills/intro/S-256.HTM

For Bias Against the People

Rufus Peckham

Lochner v. New YorkEconomic regulation interferes with "the freedom of master and employee to contract with each other"

1905

Rufus Peckham


Lochner Era

1905

Great Depression

1929

Rufus Peckham


Lochner Era

1905

Great Depression

1929

Rufus Peckham


Lochner Era

West Coast Hotel v. Parrish"Compelling" state interest in protecting workers from the "exploitation" of "unconscionable employers"

Owen Roberts

19371905

Since 1937 -• In the United States

“Constitutional revolution”- Due process is not economic- Burden on business not a test- legislation need only be rational, not arbitrary

• In other nationsRepudiated the US model - Canada, South Africa & others

• Necessity test“... ensure that [regulations] are no more burdensome than necessary to achieve domestic policy objectives, including to ensure the quality of the service ...”


• Procedural necessity test“... ensure that licensing procedures ... are as simple as possible ...”


• Battery of tests11. Measures relating to licensing requirements and procedures, qualification requirements and procedures, and technical standards shall be pre-established, based on objective criteria and relevant to the supply of the services to which they apply.

• Procedural necessity test“... ensure that licensing procedures ... are as simple as possible ...”

Stages of licensing process: operating a dam, power plant, etc.

Pre-established testMeasures ... shall be ... pre-established ...

Application Before renewalBefore approvalBefore application


Government changes regulationsGovernment denies based on community oppositionGovernment imposes conditions for license




Government changes regulationsGovernment denies based on community oppositionGovernment imposes conditions for license


Potential meaning ofproposed discipline


Least Intrusive

Most Intrusive

Objective testMeasures ... shall be ... based on objective criteria ...

Least Intrusive

Most Intrusive

NotArbitrary


Least Intrusive

Most Intrusive

NotArbitrary

NotBiased


Least Intrusive

Most Intrusive

NotArbitrary

NotBiased

Relevantto Service


Least Intrusive

Most Intrusive

NotArbitrary

NotBiased

Relevantto Service

NotSubjective


Least Intrusive

Most Intrusive

NotArbitrary

NotBiased

Relevantto Service

NotSubjective

LeastTrade-Restrictive


Most relevantto service

Least relevant to service

Intrinsic to service External to service

Licensing requirements for coastal development

Relevance testMeasures ... shall be ... relevant to the supply of the services to which they apply.

Locate near infrastructureProvide storage capacity











Preserve environmentPreserve coastal access







Preserve environmentPreserve coastal access

Conserve historic valuesPreserve scenic vistas


Showdown?

or compromise? Remove or clarify disciplines:• Simplicity• Pre-establishment• Objectivity• Relevance• Transparency

Showdown?

State

National

International

Capacity to Participate

State

National

International


Monitoring & analysis

State

National

International



Forum for consultation

State

National

International




Multi-state working groups

State

National

International




Multi-state working groups

State-level oversight

Contact:Robert Stumberg

Georgetown University Law [email protected]

1-202-662-9603

mailto:[email protected]

mailto:[email protected]

what state p olicy ma kers need to kno w...rule except? tariffs taxes regulations mkt. part....

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