tag:blogger.com,1999:blog-70379443893221609282024-03-12T23:05:47.946-07:00ITSSD Journal on Disguised Trade BarriersThe ITSSD Journal blogs are administered by the ITSSD's student interns or Advisory Board members as designated belowITSSD Charitable Missionhttp://www.blogger.com/profile/00790887154748866904noreply@blogger.comBlogger64125tag:blogger.com,1999:blog-7037944389322160928.post-712591267695004632009-02-13T11:51:00.000-08:002009-02-13T12:32:31.371-08:00The Many Faces of France's Sarkozy - Which One Can We Trust??<div align="justify"><a href="http://c.moreover.com/click/here.pl?r1819647399">bin/newsframe/437892yks4328903Dnabou2BInews421789994asgw3798etys6787/18A8047A97056E4D9B2CDA039BFF5E58backheadline3DHow2Bdo2BI2Bcut2Ba2Boout3Fnews26o3D0/FrameIt.cgi?Url=http://c.moreover.com/click/here.pl?r1819647399</a><br /><br /><strong><span style="font-size:130%;">Protectionist Sarkozy becomes EU villain</span></strong><br /><br /><br />By Crispian Balmer<br /><br /><br />February 13, 2009 - Reuters<br /><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgeCTeGXy4emJ2Fvpym64E79K4jOWNIo5LWIv2xVzJYTMGErnddhnaw9qYoGgPtafX2G8KJL91kZfwx9dhZ4-N2EZTeXrBv4JKoxxYMO3tApRiPvkQ2ySe_pjnBPhqZTmg_FH4Qe35VEBUO/s1600-h/Sarkozy+a+la+Napoleon.jpg"><img id="BLOGGER_PHOTO_ID_5302372887093016322" style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 300px; CURSOR: hand; HEIGHT: 224px" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgeCTeGXy4emJ2Fvpym64E79K4jOWNIo5LWIv2xVzJYTMGErnddhnaw9qYoGgPtafX2G8KJL91kZfwx9dhZ4-N2EZTeXrBv4JKoxxYMO3tApRiPvkQ2ySe_pjnBPhqZTmg_FH4Qe35VEBUO/s400/Sarkozy+a+la+Napoleon.jpg" border="0" /></a><br /><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhOWHr2O7zqVtl0BTNqy3F4oMPKX2Uq1PFLkrglvdtegEW2Gc9ABaCPoF98VZ4HsiBiihS5IKKfmW5lwwKQWcne0UysoWry9exX4pRbCerfsvI-dtBpEECy9EAz8kxe0GY8MjnU2NJVgxIx/s1600-h/sarkozy+swine+II.jpg"><img id="BLOGGER_PHOTO_ID_5302372781232141330" style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 301px; CURSOR: hand; HEIGHT: 221px" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhOWHr2O7zqVtl0BTNqy3F4oMPKX2Uq1PFLkrglvdtegEW2Gc9ABaCPoF98VZ4HsiBiihS5IKKfmW5lwwKQWcne0UysoWry9exX4pRbCerfsvI-dtBpEECy9EAz8kxe0GY8MjnU2NJVgxIx/s400/sarkozy+swine+II.jpg" border="0" /></a><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg1-buZWp-h4Dh4JhCbQKIasjvw_HkIYgyB3oQKTLFf-GllPQcrZMJPw05G4kLGRMMECEigSyEPDT3VF5Qwg7hGbdQEVgGgjwII9vL1YIEctuE8EDKoMe4ebqS87sPKUrsSyXa1ATEZD6XJ/s1600-h/sarkozy+swine.jpg"><img id="BLOGGER_PHOTO_ID_5302372703911509810" style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 203px; CURSOR: hand; HEIGHT: 152px" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg1-buZWp-h4Dh4JhCbQKIasjvw_HkIYgyB3oQKTLFf-GllPQcrZMJPw05G4kLGRMMECEigSyEPDT3VF5Qwg7hGbdQEVgGgjwII9vL1YIEctuE8EDKoMe4ebqS87sPKUrsSyXa1ATEZD6XJ/s400/sarkozy+swine.jpg" border="0" /></a><br /><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhXpPJUC300tQVWuTJK9-E83Y92FD85IScMowzKpW8HAp34FRwEQJGmJtNk5WootKGD98bXbe9bQXlM6BhCta5g5AnF4IuRYkKsNiW9KeYDvzKDY_KFHYkS57lSrwkZEDOZoXtqEqN-oojk/s1600-h/sarkozy+swine+III.jpg"><img id="BLOGGER_PHOTO_ID_5302377002911514242" style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 240px; CURSOR: hand; HEIGHT: 240px" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhXpPJUC300tQVWuTJK9-E83Y92FD85IScMowzKpW8HAp34FRwEQJGmJtNk5WootKGD98bXbe9bQXlM6BhCta5g5AnF4IuRYkKsNiW9KeYDvzKDY_KFHYkS57lSrwkZEDOZoXtqEqN-oojk/s400/sarkozy+swine+III.jpg" border="0" /></a><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br />French President Nicolas Sarkozy has gone from hero to villain in the European Union within just six weeks, the plaudits for his deft leadership of the 27-nation bloc giving way to vilification over his protectionist urges.<br /><br /><br />The row over French efforts to ringfence its car industry at the expense of its eastern allies has eroded Sarkozy's international standing and revived accusations that Paris is wedded to state interventionism.<br /><br /><br />"Sarkozy had emerged as the pre-eminent European leader, head and shoulders above other contenders, but now I think he has largely blown it," said Charles Grant, director for the Centre for European Reform in London.<br /><br /><br />France appeared to be the most dynamic force in Europe at the end of last year, following its successful handling of the EU presidency, during which time Sarkozy led from the front to secure a united response to the financial crisis.<br /><br /><br />But any idea of unity was thrown out the window last week when he said it was unjustified for French car firms to set up plants in places like the Czech Republic.<br /><br /><br />Putting actions to words, Sarkozy later handed local car producers PSA Peugeot Citroen and Renault cheap loans in return for promising not to close their French factories.<br /><br /><br />"As someone who has followed the European Union for 20 years, I cannot think of any single more damaging comment than what Sarkozy said in that television interview," said Grant.<br /><br /><br />However, to anyone who has followed Sarkozy's political career, such opinions would not have come as a surprise, especially in the current context of economic downturn, gathering social unrest and plunging opinion polls.<br /><br /></div><div align="justify"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhfcOFeXSIrjJHpa0FMQY7MPcwAc0odqhb7wO0YMmx0RNoy507cHoqufYnTaptBa_nIwH71bIq0haI6pEwW_9NmJDdV8SAjr4QLSkqQ0Uh9CHc9H7O_ol5k3LB7_Juuqfb7EalP1peylK8w/s1600-h/Jean-Baptiste+Colbert.jpg"><img id="BLOGGER_PHOTO_ID_5302374481218767570" style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 222px; CURSOR: hand; HEIGHT: 299px" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhfcOFeXSIrjJHpa0FMQY7MPcwAc0odqhb7wO0YMmx0RNoy507cHoqufYnTaptBa_nIwH71bIq0haI6pEwW_9NmJDdV8SAjr4QLSkqQ0Uh9CHc9H7O_ol5k3LB7_Juuqfb7EalP1peylK8w/s400/Jean-Baptiste+Colbert.jpg" border="0" /></a></div><div align="justify"><strong><span style="font-size:130%;">COLBERT REVISITED<br /></span></strong><br /><br /><span style="font-size:180%;color:#ff0000;"><strong>Since the start of the economic crisis, Sarkozy has denounced the "dictatorship of the market", vowed to end "laissez-faire capitalism" and created a fund to protect French business from falling into the hands of foreign predators.<br /></strong></span></div><div align="justify"> </div><div align="justify"><br />Going further back in time, when he was finance minister in 2004, Sarkozy prevented local engineering group Alstom from going bankrupt by pumping in state cash, defying the perceived wisdom that the market should have decided its fate.<br /><br /><br /><strong><span style="font-size:180%;">To go from believing in an activist state to promoting protectionist policies is a short step in the country which gave the world Jean-Baptiste Colbert, Louis XIV's finance minister who pioneered state control of the economy.<br /></span></strong><br /><br />But when it comes to defending car factories, Sarkozy is being driven more by pragmatism than ideology.<br /><br /><br />Up to 2.5 million people took to the streets of France last month to protest against Sarkozy's economic policies and unions have called a new day of action for March unless he bows to their demands for concerted action to help consumer spending.<br /><br /><br />Such protest movements have a habit of spiralling out of control here, and when Sarkozy went on television last week he was speaking exclusively to a domestic audience trying to convince them he could stem the recent flood of job losses.<br /><br /><br />His message did not get through and his popularity rating subsequently plunged, hitting a record low of 36 points in one IPSOS poll, down nine points on the month.<br /><br /><br />Analysts said that if anything, Sarkozy did not strike enough of a populist tone to calm his anxious audience.<br /><br /><br />"The French almost wanted to hear a more demagogic president," said Jean-Francois Doridot, head of IPSOS.<br /><br /><br />"He cannot stay motionless. He has to be seen to act. If people think he is not doing anything, he won't stand a chance."<br /><br /><br /><strong>EVERYONE AT IT</strong><br /><br /><br />The French centre-right government strongly denies that it is pursuing a protectionist agenda and says that in any case, other countries are reacting in exactly the same way as the bloc tumbles into recession.<br /><br /><br />Before France moved to help its auto sector, Italy had offered support to its own carmakers in return for guarantees that they keep their Italian plants running.<br /><br /><br />Numerous western governments have also told their ailing banks that they expect them to support businesses back home in return for bailout packages.<br /><br /><br />Such policies suggest that the most severe economic crisis in the history of the European Union is not just battering its open market ethos in France, but across the alliance.<br /><br /><br />"What Sarkozy said wasn't wise, but in the wider context everyone is engaged in a dismantling the European Union," said Ulrike Guerot, head of the Berlin office of the European Council on Foreign Relations.<br /><br /><br />"But if you have a frontrunner like France which is now dysfunctional, you will find many countries will hide behind it and do likewise," she added.<br /></div><div align="justify"></div><div align="justify">------------------------------------------------------------------------------------------------- </div><div align="justify"></div><div align="justify"><a href="http://entertainment.timesonline.co.uk/tol/arts_and_entertainment/the_tls/article2959989.ece">http://entertainment.timesonline.co.uk/tol/arts_and_entertainment/the_tls/article2959989.ece</a></div><div align="justify"></div><div align="justify"><strong><span style="font-size:130%;">Hosing Sarkozy</span></strong></div><strong><span style="font-size:130%;"></span></strong><br /><br /><br /><div align="justify"><br /><em><strong>A rigorous examination of the President by critics, cartoonists, a diarist and the man himself<br /></strong></em></div><div align="justify"></div><div align="justify">By Sudhir Hazareesingh<br /></div><div align="justify"></div><div align="justify"></div><div align="justify">UK Timesonline.co.uk</div><div align="justify"></div><div align="justify"></div><div align="justify">November 28, 2007</div><div align="justify"></div><div align="justify"></div><div align="justify">Philippe Cohen, Richard Malka and Riss<br />LA FACE KARCHÉE DE SARKOZY<br />155pp. Éditions Vent d’Ouest/Fayard. 15euros.<br />978 2 7493 0309 3<br /><br /><br />Nicolas Sarkozy<br />TESTIMONY<br />France, Europe, and the world in the twenty-first century<br />Translated from the French by Philip H. Gordon<br />211pp. HarperPress. £20.<br />978 0 00 726780 4<br /><br /><br />Eric Hazan<br />CHANGEMENT DE PROPRIÉTAIRE<br />La guerre civile continue<br />177pp. Seuil. 15euros.<br />978 2 02 096165 3<br /><br /><br />Catherine Nay<br />UN POUVOIR NOMMÉ DÉSIR<br />442 pp. Grasset. 6.95euros.<br />978 2 253 12340 8<br /><br />Yasmina Reza<br />L’AUBE LE SOIR OU LA NUIT<br />186pp. Flammarion. 18euros.<br />978 2 08 12096 9<br /><br /><br /><strong><span style="font-size:130%;">Then and Now</span></strong><br /><br /><br />"Je les ai tous niqués” was Nicolas Sarkozy’s quip on becoming mayor of the smart Parisian suburban town of Neuilly at the age of twenty-eight, against the express wishes of the Gaullist party hierarchy. <strong><span style="font-size:180%;">A desire to “screw them all”</span> has since become the trademark of this hyperactive, pugnacious, and tormented politician: first as Édouard Balladur’s henchman between 1993 and 1995, when he deployed all means to promote his mentor’s (unsuccessful) bid for the Presidency – including threatening to investigate the tax returns of politically unsympathetic journalists, bullying his ministerial colleagues, and spreading rumours about Madame Chirac’s financial dealings; from 2002, as Minister of the Interior, when as “Speedy Sarko” he made the fight against crime and illegal immigration his priorities, memorably describing the rioters of late 2005 as “racaille” (scum), and vowing to clean up their neighbourhoods “au kärcher” (with high-pressure hoses); and finally, in the run-up to the Presidential elections of 2007, when he likened his own party leader Jacques Chirac to the Bourbon monarch Louis XVI, flapping helplessly in Versailles as his people clamoured for reform.</strong> In her brilliantly evocative L’Aube le soir ou la nuit, written after following Sarkozy on the Presidential campaign trail for a year, the novelist Yasmina Reza summed up the candidate as “un amoureux de l’adversité”. The recent wave of strikes in the French transport system, accompanied by a resumption of violent clashes in the banlieues over the past few days, suggest that Sarkozy is set to encounter further adversity – perhaps even more than he bargained for.<br /><br /><br />How and why did the French people elect this “political warrior”, as their President once described himself, and what does his meteoric rise reveal about the state of French politics? For Sarkozy’s adversaries, there is little doubt: 2007 marks the consecration of an ambitious and vindictive figure, for whom political intercourse amounts to little more than a Schmittian battle to the death. <strong><span style="font-size:130%;">Sarkozy’s bullish image as a hard man has been gleefully appropriated by French caricaturists, most notably by Les Guignols, the French version of Spitting Image; and it is the dominant theme in La Face karchée de Sarkozy, a comic-strip satire of Sarkozy’s political career written by the Marianne journalist Philippe Cohen, the lawyer Richard Malka, and Riss, a cartoonist at Charlie-Hebdo. Sarkozy is presented here as an obsessive, paranoid and ruthless figure. His gangster-like physique</span></strong> is exploited to great comical effect, notably in a reprise of the celebrated scene from The Godfather, when he places the severed head of a horse in Alain Juppé’s bed, in an attempt to get him to rally to Balladur’s candidacy. <strong><span style="font-size:180%;">The Sarkozy of La Face karchée is a man of no set political convictions, latching on opportunistically to whatever creed he believes would best suit his personal interests, and armed with a simple mantra: “un jour je les niquerai tous”.<br /></span></strong><br /><br />For the radical Left, the election of Sarkozy in 2007 was a watershed, marking the triumph of a more confident and ideologically assertive French Right. <strong><span style="font-size:130%;">Written from the combined perspective of a neo-Marxist internationalist, and an inhabitant of the cosmopolitan Parisian neighbourhood of Belleville, Eric Hazan’s Changement de propriétaire is a vigorously acerbic chronicle of President Sarkozy’s first hundred days in office. Hazan argues that Sarkozy’s social programme (which includes the expulsion of 25,000 illegal immigrants each year, and increased punishment of petty crime) is likely to exacerbate the French “civil war”</span></strong> which erupted in the banlieues in 2005. He also writes interestingly about Sarkozy’s cosy relationship with the French media, and in particular his closeness to the Lagardère and Bouygues conglomerates – and this is no idle conspiracy theory: in 2005, after publishing a photograph of Sarkozy’s then wife Cécilia with her lover in New York, the editor of Paris-Match, Alain Genestar, was fired at Sarkozy’s behest. Hazan’s overall argument, which represents a common left-wing view of the new President, is that Sarkozy’s politics are drawn straight out of the “neoliberal” textbook: closer alignment with the US and Israel, and – behind the appealing slogan of putting the country back to work – an unprecedented ambition for a French politician: the adoption of a business model of the state, with low taxation, reduction of the size and scope of the public sector, and comprehensive deregulation as the key objectives.<br /><br /><br /><strong><em><span style="font-size:130%;">Sarkozy himself would not disagree with much of this characterization. Unlike his predecessors, he is not ashamed to call himself right-wing. </span></em><span style="font-size:180%;">[???]</span></strong> In Testimony, his hugely successful pre-electoral programmatic pamphlet, he declared: “I am convinced that deep down in French society there is a strong demand for the restoration of certain values of the republican right: work, respect for authority, family, and individual responsibility. And I’m convinced that the reason the right has been losing for years is that it regrets not being the left”. <strong><span style="font-size:130%;">Sarkozy is also candid about the need for France to learn from the successes of others: from the Scandinavian countries’ affluence, from Britain and its record of high economic growth, and even from the United States. Sarkozy believes that France was right not to join the Americans in invading Iraq, but he also wants to work towards a Franco-American rapprochement (while Minister of the Interior he paid a controversial visit to George Bush at the White House</span></strong>; he returned for a state visit in early November 2007, and received a rapturous welcome). To the accusations that he is “ultralibéral” (meaning too much of an Americanophile), he responds in two ways. <strong><span style="font-size:180%;">First, he notes that while he admires certain aspects of social and economic life in the USA (the promotion of free enterprise, social mobility and affirmative action), the “American model” is also profoundly inegalitarian and unjust, and therefore unsuitable for France</span></strong> – for example, in its provision of health care. Second, he highlights the dismal failure of the so-called French model, with its crisis of social integration, high unemployment, low growth, rigid labour market, exorbitant public debt and failing universities; as he notes despairingly, one of the best French universities, the École Polytechnique, does not even appear in the rankings of the top 200 higher education institutions worldwide. It should also be added that, despite his anti-May 68 rhetoric, Sarkozy is not a true social conservative: he has no overt religious, anti-gay or anti-abortion agenda, and is resolutely opposed to capital punishment. One of his great achievements in 2007 was to pulverize the National Front. Indeed, far from pandering to the Islamophobia which is increasingly fashionable in some French intellectual circles (both on the Left and Right), Sarkozy as Minister of the Interior took on France’s secular establishment by creating a French Council for Muslim Cults, to oversee the clerical organization of Islam in France; and since his election as President he has brought in women of immigrant origin into senior government positions, most notably Rachida Dati as Minister of Justice. The French Left dismisses this as tokenism, but it says something about the Socialists’ abysmal record on this issue that they found even tokenism to be beyond their reach.<br /><br /><br /><strong><span style="font-size:130%;">Sarkozy’s apparent predisposition to swim against the current is consistent with his adversarial conception of politics, and his proclaimed intention to provoke a “rupture” in French political culture. </span></strong>This provides the cue for Catherine Nay’s biography, Un Pouvoir nommé désir, which effectively portrays Sarkozy as a “politicien hors normes”. Whether he turns out to be a paradigm-breaking President is a matter for the future (and we should remember that six months into their Presidencies, we knew little about how de Gaulle, Mitterrand or even Chirac would turn out). But <strong><span style="font-size:130%;">by focusing on Sarkozy’s background, personality and mind-set, Nay suggests a number of ways in which he is already different from the French political archetype.</span></strong> She dwells on the fact that Sarkozy is an outsider in two critical senses: first, he is not a product of the Grandes Écoles system (he is a lawyer by training), and so did not enter the political elite through the conventional route of joining a cabinet ministériel (he is the only President to have begun his political career at grass-roots level, as an ordinary party activist). And second, he is the son of immigrants: his father Pal came to France after the Communist seizure of power in Hungary in 1948, and his maternal grandfather was a Sephardi Jew from Salonika. To add to the young Nicolas’s sense of otherness, his parents rapidly divorced, and he freely admits that for most of childhood and adolescence he felt a sense of “shame”. This sheds light on one of the real differences between Sarkozy and the traditional French political elite: his relative lack of intellectual interest in the past. Hitherto, French politicians have tended to define themselves by reference to a political tradition (Left or Right) and a set of historical experiences (wars, social conflicts such as May 68, internal political reconstructions). Not so Sarkozy: his engagement in politics, as he acknowledges in Testimony, was not driven by any “particular meeting, event, book, or article . . . it just happened”. <strong><span style="font-size:130%;">He occasionally cites some French historical figures (de Gaulle, Clemenceau, Georges Mandel, and – to annoy the Left – Jaurès and Blum), but they are not in any way models he seeks to emulate. For this man in a hurry, the past can occasionally serve as an instrument of legitimation, or as a useful negative myth – but generally it is either an irrelevance, or an obstacle to adaptation and change.<br /></span></strong><br /><br />This is confirmed by Yasmina Reza’s observations of the candidate Sarkozy between the summer of 2006 and his election in 2007. L’Aube le soir ou la nuit shows him at his hollowest when giving a speech about Joan of Arc, pretending to visit the Churchill Museum (he could not care less), and inviting the press to observe him “meditating” at the tomb of de Gaulle at Colombey-les-deux-Églises. The epic mode does not really suit him (this is where the analogy with Bonaparte breaks down, even though his relationship with Cécilia was very much akin to Napoleon’s with Joséphine – except that the Emperor divorced her, whereas Cécilia left her husband). Reza’s fly-on-the-wall political diary is captivating because of its impressionistic style, which superbly filters out the ambient political noise. But she is uncertain about what sense to make of the residue. <strong><span style="font-size:130%;">Despite the remarkable access she is given (she attends all the meetings of his inner sanctum), and Sarkozy’s commitment to play the game of transparency, he remains elusively opaque. The book thus moves from its original quest for political meaning to become a contemplation of a man struggling with the evanescence of time</span></strong>. This is the campaign trail as we have never seen it before: we catch glimpses of Sarko being abused – “putain de ta mère” – by a woman in Marseille, being lectured on Palestinian rights by the Algerian President, Abdelaziz Bouteflika; cursing at his entourage for failing to meet his expectations (he really does swear a lot); describing, without any apparent sense of irony, his enthusiasm for the film The Silence of the Lambs; musing idly about love; listening in a childlike trance to a piece of jazz; making jokes in the poorest of taste about Jacques Chirac’s hearing difficulties; and, all the while avidly, relentlessly, obsessively craving Reza’s approval. <strong><span style="font-size:130%;">She is struck by his smugness: “si je n’existais pas il faudrait m’inventer”. But behind the bluster, she also senses a real fragility, a “sentiment d’insuffisance” which drives him forward, ever seeking to reach the mountain summit. And what lies behind it? The promised land, perhaps – but also the possibility of a vast, unending, ineffable emptiness.<br /></span></strong><br /><br /><em>Sudhir Hazareesingh's edition (with Eric Anceau) of the late Vincent Wright’s Les Préfets de Gambetta was published earlier this year. He is a Fellow of Balliol College, Oxford. A French translation of his study of Napoleonic civic festivities, Saint-Napoléon, was published in Paris earlier this year.</em><br /><br /></div><div align="justify"></div><div align="justify"><br /></div><div align="justify"></div><div align="justify"><br /></div><div align="justify"></div><div align="justify"><br /></div><div align="justify"></div><div align="justify"><br /></div><div align="justify"></div><div align="justify"><br /></div><div align="justify"></div><div align="justify"><br /></div><div align="justify"></div><div align="justify"><br /></div><div align="justify"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhfcOFeXSIrjJHpa0FMQY7MPcwAc0odqhb7wO0YMmx0RNoy507cHoqufYnTaptBa_nIwH71bIq0haI6pEwW_9NmJDdV8SAjr4QLSkqQ0Uh9CHc9H7O_ol5k3LB7_Juuqfb7EalP1peylK8w/s1600-h/Jean-Baptiste+Colbert.jpg"></a></div><div align="justify"><br /></div><div align="justify"></div><div align="justify"><br /></div><div align="justify"></div><div align="justify"><br /></div><div align="justify"></div><div align="justify"><br /></div><div align="justify"></div><div align="justify"><br /></div><div align="justify"></div><div align="justify"><br /></div><div align="justify"></div>ITSSD Charitable Missionhttp://www.blogger.com/profile/00790887154748866904noreply@blogger.com0tag:blogger.com,1999:blog-7037944389322160928.post-54981763596924714102009-01-02T08:13:00.000-08:002009-02-13T17:15:25.338-08:00France Seeks Regional Protection of Civil Law Notaries via Monty Pythonesque 'Authentic Acts' Proposal that Threatens Anglo-American Competitiveness<div align="justify"><em><strong><span style="font-size:130%;">The following blog entry supports the findings reported in a recent article authored by ITSSD President Lawrence Kogan that was published by the Washington Legal Foundation.</span></strong></em></div><div align="justify"> </div><div align="justify"> </div><div align="justify"><strong><span style="font-size:180%;">[</span><span style="font-size:130%;">See: <em>France Proposes New EU Ministry of Silly Authentic Acts ala Monty Python that Jeopardizes Anglo-American Free Enterprise</em>, ITSSD Journal on Economic Freedom, at:</span> </strong><a href="http://itssdeconomicfreedom.blogspot.com/2009/02/france-proposes-eu-law-ministry-of.html"><strong>http://itssdeconomicfreedom.blogspot.com/2009/02/france-proposes-eu-law-ministry-of.html</strong></a><strong> <span style="font-size:180%;">].</span></strong></div><div align="justify"> </div><div align="justify">-------------------------------------------------------------------------------------------------</div><div align="justify"> </div><div align="justify"><a href="http://www.lawgazette.co.uk/opinion/letters/bid-civil-law-notaries-protect-their-monopoly">http://www.lawgazette.co.uk/opinion/letters/bid-civil-law-notaries-protect-their-monopoly</a><br /><br /><strong><span style="font-size:130%;">Bid By Civil Law Notaries to Protect Their Monopoly</span></strong><br /><br /><br />By Anthony Northey<br /><br /><br />UK Law Society Gazette<br /><br /><br />Dec. 18, 2008<br /><br /><br /><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjytf7TuaGVPxO32BkWap1spxfDuTI6hOz8XTSv_AVIY6xOnEaUpAl6SVJNvvV6glE3vfnHxdHLDM-o8X4EaYxCx7ul4nm9XBmB9_XsI_B1lN8mlagMQB2PfQK3a_X-NGV5it5wzYoANjEv/s1600-h/CCBE_sas_logo.jpg"><img id="BLOGGER_PHOTO_ID_5288386134333546866" style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 200px; CURSOR: hand; HEIGHT: 99px" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjytf7TuaGVPxO32BkWap1spxfDuTI6hOz8XTSv_AVIY6xOnEaUpAl6SVJNvvV6glE3vfnHxdHLDM-o8X4EaYxCx7ul4nm9XBmB9_XsI_B1lN8mlagMQB2PfQK3a_X-NGV5it5wzYoANjEv/s200/CCBE_sas_logo.jpg" border="0" /></a>The news item <strong><span style="font-size:130%;">‘CCBE [Council of Bars & Law Societies of Europe/ Conseils des barreaux europeens]</span></strong> warning on threat of notaries’ highlighted what is going on behind the scenes in Brussels (see [2008] Gazette, 4 December, 3).<br /><br /><br /><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjYzVwuSFZjufE4IRfWTQdVM_XoE7dSE-orz9tgHkKd-Jluf4unQqlBhoba_X61Q7ytb8nFtAn9mecueSmR9E4sJ6VUR20DDSpDehse8Od-J3eD0DvKHj9H1AtfHpDvm8p-hqLMX1Qcc1Y1/s1600-h/notaries+societies+of+england+and+wales.jpg"><img id="BLOGGER_PHOTO_ID_5288387093722216770" style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 88px; CURSOR: hand; HEIGHT: 126px" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjYzVwuSFZjufE4IRfWTQdVM_XoE7dSE-orz9tgHkKd-Jluf4unQqlBhoba_X61Q7ytb8nFtAn9mecueSmR9E4sJ6VUR20DDSpDehse8Od-J3eD0DvKHj9H1AtfHpDvm8p-hqLMX1Qcc1Y1/s400/notaries+societies+of+england+and+wales.jpg" border="0" /></a>As vice-president of the <strong><span style="font-size:130%;">Notaries Society of England and Wales</span></strong>, I attended the Forum on Judicial Cooperation in Civil Matters; Debate with National Parliaments in Brussels on 2 December.<br /><br /><br /><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhfbuCyadNOMomq6o18u4bupyGhwpbBvYUtLjgCS-Z6kIXyFXYORxGddnurNrE1nhCWF_s4iOUrcn5AavrGB7c29xjpfw7oZKwqkYe4vD-0mJdh_m90-oaAxG8HBsbUggBvnbOzLjWAXEP9/s1600-h/council+of+notariats+of+the+EU.gif"><strong><span style="font-size:130%;"><img id="BLOGGER_PHOTO_ID_5288385210779531650" style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 99px; CURSOR: hand; HEIGHT: 99px" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhfbuCyadNOMomq6o18u4bupyGhwpbBvYUtLjgCS-Z6kIXyFXYORxGddnurNrE1nhCWF_s4iOUrcn5AavrGB7c29xjpfw7oZKwqkYe4vD-0mJdh_m90-oaAxG8HBsbUggBvnbOzLjWAXEP9/s400/council+of+notariats+of+the+EU.gif" border="0" /></span></strong></a><strong><span style="font-size:130%;">The Council of the Notariats of the European Union (CNUE)</span></strong> used this forum to promote legislation to obtain international status and mutual recognition in EU states of Authentic Acts prepared by civil law notaries. The proposals would not give any status or recognition to notarial acts or instruments (Authentic Acts) prepared by common law notaries, let alone deeds or documents prepared by solicitors or barristers.<br /><br /><br />We also had a meeting in Brussels with CNUE but they appear to be totally unyielding over this issue.<br /></div><br /><br /><div align="justify"><strong><span style="font-size:180%;color:#ff0000;">If legislation ensues giving international legal effect and recognition to civil law notaries’ Authentic Acts alone, this will create an even more uneven playing field in Europe and will disadvantage the common law jurisdictions throughout the UK, Ireland and also the Nordic countries.<br /></span></strong><br /><br />The Medina Ortega Report on Authentic Acts is now due to be voted on at the plenary session, on 18 December. It is extremely important that we all lobby our MEPs over this issue. Diana Wallis, who is not only a Member of the European Parliament, but also both a solicitor and vice-president of the European Parliament, is doing her best to oppose this proposal. She joined us at our meeting with CNUE. We are very grateful to her for her support.<br /><br /><br /><strong><span style="font-size:180%;color:#ff0000;">The civil law notaries enjoy monopolistic status and are determined to retain this</span></strong>. <em><strong>The UK, Ireland and Nordic countries are not part of CNUE.<br /></strong></em><br /><br />Our three British legal professions of solicitors, barristers and notaries public cannot afford to ignore what is happening in Brussels any longer.<br /><br />-------------------------------------------------------------------------------------------------<br /><br /><a href="http://www.europarl.europa.eu/sides/getDoc.do?type=CRE&reference=20081218&secondRef=ITEM-003&language=EN&ring=A6-2008-0451">http://www.europarl.europa.eu/sides/getDoc.do?type=CRE&reference=20081218&secondRef=ITEM-003&language=EN&ring=A6-2008-0451</a><br /><br /><strong><span style="font-size:130%;">European Parliament - Debates</span></strong><br /><br /><br />Thursday, 18 December 2008 – Strasbourg Provisional edition<br /><br /><br />3. <strong><span style="font-size:130%;">European Authentic Act</span></strong> - E-Justice - Cross-border implications of the legal protection of adults (debate)<br /><br /><a href="http://www.europarl.europa.eu/sides/getVod.do?mode=unit&language=EN&vodDateId=20081218-10:17:26-176">http://www.europarl.europa.eu/sides/getVod.do?mode=unit&language=EN&vodDateId=20081218-10:17:26-176</a><br /><br /><strong><span style="font-size:130%;">Diana Wallis, MEP, UK</span></strong> - on behalf of the ALDE Group. – Mr President, I think my group will have no difficulty, I hope, in supporting my own report and certainly that of Mr López-Istúriz White.<br /><br /><br />The report I want to address – because it brings problems for Members across this House – is that of Mr Medina Ortega. We all share the same idea: we have freedom of movement of judgments. We would like freedom of movement of authentic acts, and I add: ‘or equivalent documents’. There has been much talk about facilitating the lives of our citizens. To me, that means the lives of all Europe’s citizens and <strong><span style="font-size:180%;">it would not serve us well if a number of countries and a number of legal traditions were excluded from this area of justice</span></strong>. That is what will happen if we do not look more widely and have patience and tolerance for legal systems that on the face of it may appear different, but if you dig deeper have very similar ways of approaching things.<br /><br /><br /><strong><span style="font-size:180%;">We have managed to recognise one another’s documents. There is no earthly reason why with tolerance and care we cannot recognise one another’s acts</span></strong> <strong><span style="font-size:180%;">when they are done by contract or notarial act</span></strong>, but not in exactly the same manner and form.<br /><br /><br />My plea is: Please, respect the amendments that have been put today. They may not be passed, but the spirit of them is that <em><strong>this is a Europe of justice for all citizens and all legal cultures</strong></em>. It should not become exclusive.<br /><br />-------------------------------------------------------------------------------------------------<br /><br /><strong><span style="font-size:130%;">[UNFORTUNATELY, HOWEVER, THE BRITISH MEPs WERE UNSUCCESSFUL – SEE BELOW].</span></strong><br /><br />-------------------------------------------------------------------------------------------------<br /><br /><a href="http://www.europarl.europa.eu/sides/getDoc.do?type=PV&reference=20081218&secondRef=ITEM-006-21&language=EN&ring=A6-2008-0451">http://www.europarl.europa.eu/sides/getDoc.do?type=PV&reference=20081218&secondRef=ITEM-006-21&language=EN&ring=A6-2008-0451</a><br /><br /><strong><span style="font-size:130%;">Minutes: Thursday, 18 December 2008</span></strong> – Strasbourg Provisional edition<br /><br /><br />6.21. <strong><span style="font-size:130%;">European Authentic Act (vote)<br /></span></strong><br /><br />Report: with recommendations to the Commission on the European Authentic Act [<a href="http://www.europarl.europa.eu/oeil/FindByProcnum.do?lang=2&procnum=INI/2008/2124">2008/2124(INI)</a>] – Committee on Legal Affairs. Rapporteur: Manuel Medina Ortega (<a href="http://www.europarl.europa.eu/sides/getDoc.do?type=REPORT&reference=A6-2008-0451&language=EN&mode=XML">A6-0451/2008</a>)<br /><br />(Qualified majority)<br /><br />(Voting record: 'Results of votes', Item 20)<br /><br />MOTION FOR A RESOLUTION<br />Adopted (<a href="http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P6-TA-2008-0636&language=EN">P6_TA-PROV(2008)0636</a>)<br /><br />-------------------------------------------------------------------------------------------------<br /><br /><a href="http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P6-TA-2008-0636+0+DOC+XML+V0//EN#BKMD-41">http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P6-TA-2008-0636+0+DOC+XML+V0//EN#BKMD-41</a><br /><a href="http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P6-TA-2008-0636">http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P6-TA-2008-0636</a><br /><br /><strong><span style="font-size:130%;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjMyKjwDntdqh47mmQ4iKALa9-AfvogyJgbHAPujuizQu012m-NWQYnIDqQknKWSvIFa68G6TRak6qFYoSFtk0vqlIElallK5XZY2TztwtS5pB5wo35d2eyRA9aOO5kjs5pC-PIWv9eAsWz/s1600-h/euro_parliament_logo_lead_203x152.gif"><img id="BLOGGER_PHOTO_ID_5288401212928560882" style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 203px; CURSOR: hand; HEIGHT: 152px" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjMyKjwDntdqh47mmQ4iKALa9-AfvogyJgbHAPujuizQu012m-NWQYnIDqQknKWSvIFa68G6TRak6qFYoSFtk0vqlIElallK5XZY2TztwtS5pB5wo35d2eyRA9aOO5kjs5pC-PIWv9eAsWz/s320/euro_parliament_logo_lead_203x152.gif" border="0" /></a>European Parliament <span style="font-size:180%;">Resolution</span> of 18 December 2008, with recommendations to the Commission on the European Authentic Act</span></strong> (2008/2124(INI))<br /><br /><br />The European Parliament,<br /><br /><br />– having regard to Article 192, second paragraph, of the EC Treaty,<br /><br /><br />– having regard to the Commission's communication of 10 May 2005 entitled "The Hague Programme: Ten priorities for the next five years. The Partnership for European renewal in the field of Freedom, Security and Justice" (<a href="http://ec.europa.eu/prelex/liste_resultats.cfm?CL=en&ReqId=0&DocType=COM&DocYear=2005&DocNum=0184">COM(2005)0184</a>),<br /><br /><br />– having regard the comparative study on authentic instruments conducted for the Committee on Legal Affairs,<br /><br />– having regard to Rules 39 and 45 of its Rules of Procedure,<br /><br />– having regard to the report of the Committee on Legal Affairs (<a href="http://www.europarl.europa.eu/sides/getDoc.do?type=REPORT&reference=A6-2008-0451&language=EN&mode=XML">A6-0451/2008</a>),<br /><br /><br />A. whereas, in its aforesaid communication on the Hague Programme, the Commission singled out, as one of its priorities, the need to guarantee an effective European area of civil justice, not least as regards the recognition and enforcement of judicial decisions; whereas, with the aim of strengthening mutual trust within the European Union, that programme stated that continued implementation of the principle of mutual recognition was a main priority in the coming years, as mutual recognition is a specific means of protecting the rights of citizens and guaranteeing their application across borders in Europe,<br /><br /><br />B. whereas the Hague Programme states that continued implementation of the programme of mutual recognition is a main priority and that this should be completed by 2011,<br /><br /><br />C. whereas there is a steady increase in the movement of citizens within the Union; whereas there is therefore a development in the number of legal situations concerning two or more Member States,<br /><br /><br />D. whereas, in its aforesaid Communication on the Hague Programme, the Commission recognised that in the field of civil justice one key aspect that needs to be addressed is the recognition of public documents; whereas, in this respect, there is an urgent need to promote the recognition and enforcement of authentic acts, as defined in the Unibank judgment<a name="ref_1_1"></a><a href="http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P6-TA-2008-0636+0+DOC+XML+V0//EN#def_1_1#def_1_1">(1)</a> ,<br /><br /><br />E. whereas the sectoral and inconsistent approach taken by Community legislation in this field is not satisfactory<a name="ref_1_2"></a><a href="http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P6-TA-2008-0636+0+DOC+XML+V0//EN#def_1_2#def_1_2">(2)</a> ,<br /><br /><br />F. <strong>whereas there is a need to protect European citizens in their cross-border family and property relationships</strong>,<br /><br /><br />G. <strong>whereas businesses have more and more branches abroad and intra-Community activities that result in the greater movement of <span style="font-size:180%;">authentic acts</span> relating to the setting-up and operation of businesses</strong>,<br /><br /><br />H. <strong>whereas it is essential to establish a clear and comprehensive legal framework for the Union that guarantees citizens and economic operators the certainty and predictability of legal <span style="font-size:180%;"><span style="font-size:100%;">situations and transactions drawn up by</span> those delegated with public authority</span></strong>,<br /><br /><br />I. whereas <strong>the creation of a genuine European legal area is based</strong>, in the field of litigation, on the cross-border recognition of legal decisions made by a court or administrative authority and, <strong>in non-judicial matters, on the cross-border recognition of <span style="font-size:180%;">authentic acts </span>d<span style="font-size:180%;"><span style="font-size:100%;">rawn up or registered by a judicial authority or by public officials appointed to</span> authenticate legal acts</span></strong>,<br /><br /><br />J. whereas the <strong>existing regulations on the mutual recognition of legal decisions apply to <span style="font-size:180%;">authentic acts</span> when these emanate from the public authorities</strong>,<br /><br /><br />K. <strong>whereas <span style="font-size:180%;">the key characteristic of an authentic act is that it has a greater probative value than a private agreement</span></strong> <strong>and that this probative value, which must be accepted by the judge</strong>, is regularly conferred on it in Member State legislation on account of the trust placed in acts drawn up, in the context of legal transactions, by a public officer appointed for that purpose or by a public authority<a name="ref_1_3"></a><a href="http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P6-TA-2008-0636+0+DOC+XML+V0//EN#def_1_3#def_1_3">(3)</a> ,<br /><br /><br />L. whereas <strong>the prerequisite for the probative value of an authentic act is <span style="font-size:180%;">recognition of its authenticity</span>, in that it emanates <span style="font-size:180%;">from a public official</span> <span style="font-size:180%;">vested with the power</span> to draw up authentic acts or from a public authority</strong>; whereas mutual trust in the legal systems of the Member States justifies making authenticity verification procedures only applicable in future when serious doubts arise as to the veracity of the document,<br /><br /><br />M. whereas respect for the legislation of the Member State on the territory of which the act is to be produced for use nevertheless entails the certainty that recognition of the probative value does not mean that the foreign authentic act enjoys a greater probative value than national authentic acts in that Member State by virtue of its recognition in the Member State in which it is to be produced; whereas the material scope of the Regulation requested should cover an essential part of civil and commercial law, with the exception of certain clearly defined matters,<br /><br /><br />N. whereas differences in the structure and organisation of public registry systems in the field of immoveable property, as well as differences concerning the nature and scale of the public confidence placed in them, mean that <strong>the transfer of immoveable property rights has to be excluded from a future Community instrument, given the close correlation between the method of drawing up an authentic act and entry in the public register</strong>, <strong><span style="font-size:180%;">[i.e., VALUABLE REAL PROPERTY CONVEYANCES 'AUTHENTICATED'/REGISTERED BY NOTARIES </span></strong><strong><span style="font-size:180%;">ESCAPE THESE RULES OF MUTUAL RECOGNITION]</span></strong><br /><br /><br />O. whereas, as regards the recognition of legal decisions across the Union, <strong>this exclusion corresponds to attributing exclusive competence to the courts of the place where the property is situated </strong>for all appeals relating to immoveable property rights and to the courts on the territory where the public register is kept for all appeals relating to the validity of entries in the public register<a name="ref_1_4"></a><a href="http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P6-TA-2008-0636+0+DOC+XML+V0//EN#def_1_4#def_1_4">(4)</a> ,<br /><br /><br />P. whereas <strong><span style="font-size:180%;">the concept of an authentic act does not exist in common-law systems</span></strong>, in particular the law of England and Wales, or in Nordic countries; <em><strong><span style="font-size:130%;">whereas although in England and Wales there exist solicitors who act as notaries public and the profession of scrivener notaries, those lawyers cannot produce authentic acts, but are merely empowered to certify signatures, and whereas accordingly, in adopting any legislation on European authentic acts, steps should be taken to ensure that no confusion can arise in this respect;</span></strong></em> whereas, in turn, every precaution should be taken to ensure that authentic acts cannot be used in countries where such acts cannot be made by nationals of those countries in order to circumvent procedures prescribed by the those countries' legal systems (e.g. grant of probate); <strong><span style="color:#ff0000;">whereas, in addition, in order to raise awareness among legal professionals in those Member States where authentic acts do not exist, a suitable information campaign should be initiated by the Commission and every effort should be made to ensure that common-law legal professionals are aware of the work done by civil-law public officials and of the potential advantages for their clients – in terms of legal certainty, in particular – of using authentic acts in transactions which they are proposing to conclude in those countries where that instrument is used</span></strong>; whereas this underscores a need often expressed by Parliament's Committee on Legal Affairs for trans-European networks of legal practitioners, information campaigns and material and common training, which the Commission is called upon to promote,<br /><br /><br />Q. whereas the Regulation requested may not apply either to matters relating to the applicable law covered by other Community instruments or to questions relating to the competence, organisation and structure of public authorities and officials, including the authentication procedure, which come under the jurisdiction of the Member States,<br /><br /><br />1. Considers that mutual trust in the field of law within the Community justifies the future abolition of procedures for checking the accuracy of authentic acts in cross-border matters; considers that this recognition of an authentic act for the purpose of its use in the requested Member State can only be refused in the case of serious and substantiated doubts as to its authenticity, or if recognition is contrary to public policy in the Member State requested;<br /><br /><br />2. <strong>Requests the Commission to submit to Parliament, on the basis of Article 65(a) and the second indent of Article 67(5) of the EC Treaty, <span style="font-size:130%;">a legislative proposal on establishing the mutual recognition and enforcement of authentic acts</span></strong>;<br /><br /><br />3. Stresses that recognition may not result in giving a foreign act greater effect than a national act would have;<br /><br /><br />4. <strong><span style="font-size:130%;">Asks that the Regulation requested apply to all authentic acts in civil and commercial matters except those which relate to immoveable property and which must or may be subject to entry or mention in a public register</span></strong>;<br /><br /><br />5. Specifies that the Regulation requested should not apply either to matters relating to the law applicable to the subject-matter of the authentic act or to questions relating to the competence, organisation and structure of public authorities and officials, including the authentication procedure;<br /><br /><br />6. Notes, in this context, that the recommendations annexed hereto respect the principles of subsidiarity and proportionality and the fundamental rights of citizens;<br /><br /><br />7. Considers that the requested proposal will not have any financial implications;<br /><br /><br />8. Instructs its President to forward this resolution and the accompanying detailed recommendations to the Commission and the Council, and to the governments and parliaments of the Member States.<br /><br /><br /><a name="def_1_1"></a>(1) Judgment of the Court of Justice of 17 June 1999 in Case C-260/97 Unibank [1999] ECR I-3715. <a name="def_1_2"></a><br />(2) Council Regulation (EC) No 44/2001 (OJ L 12, 16.1.2001, p. 1); Council Regulation (EC) No 2201/2003 (OJ L 338, 23.12.2003, p. 1); Council Regulation (EC) No 805/2004 (OJ L 143, 30.4.2004, p. 15).<br /><a name="def_1_3"></a>(3) Opinion of Advocate-General La Pergola of 2 February 1999 in Case C-260/97 Unibank , cited above, paragraph 7.<br /><a name="def_1_4"></a>(4) See Article 22, points 1 and 3, of Regulation (EC) No 44/2001.<br /><br /><br /><br /><strong><span style="font-size:130%;">ANNEX<br /><br />DETAILED RECOMMENDATIONS ON THE CONTENT OF THE PROPOSAL REQUESTED</span></strong><br /><br /><br />1. Mutual trust in the field of law within the Community justifies the future abolition of procedures for checking the accuracy of authentic acts in cross-border matters.<br /><br /><br />2. <strong>This recognition of an authentic act for the purpose of its use in the requested Member State can only be refused <em>where there is serious and substantiated doubt as to its authenticity</em>, <span style="font-size:180%;">or if recognition is contrary to public policy</span> in the Member State requested</strong>.<br /><br /><br />3. <strong>Parliament requests the Commission to submit to it</strong>, on the basis of Article 65(a) and the second indent of Article 67(5) of the EC Treaty, <strong><span style="font-size:130%;">a legislative proposal on establishing the mutual recognition and enforcement of authentic acts</span></strong>.<br /><br /><br />4. <strong><span style="font-size:130%;">The act that is the subject of the legislative proposal should apply to all authentic acts in civil and commercial matters except those which relate to immoveable property and which must or may be subject to entry or mention in a public register</span></strong>. It should not apply either to matters relating to the law applicable to the subject-matter of the authentic act or to questions relating to the competence, organisation and structure of public authorities and officials, including the authentication procedure.<br /><br />-------------------------------------------------------------------------------------------------<br /><br /><a href="http://www.lawgazette.co.uk/news/ccbe-warning-threat-notaries">http://www.lawgazette.co.uk/news/ccbe-warning-threat-notaries</a><br /><br /><strong><span style="font-size:130%;">CCBE Warning on the Threat of Notaries</span></strong><br /><br /><br />By Paul Rogerson<br /><br /><br />UK Law Gazette<br /><br /><br />Dec. 4, 2008<br /><br /><br /><strong><span style="font-size:130%;">A backdoor bid by continental notaries to beat off the threat of competition is meeting fierce resistance from lawyers across Europe</span></strong>. At its plenary session in Brussels last weekend, the Council of Bars and Law Societies of Europe (CCBE) abandoned its historically neutral position on the notarial profession to pass a resolution outlining its concerns.<br /><br /><br />The CCBE stressed that <strong><span style="font-size:130%;">the European Commission wants lawyers to compete with continental notaries in their own markets. <em>However</em>, a report from the European Parliament’s Legal Affairs Committee has recommended that the commission legislate to introduce a common system for the mutual recognition and enforcement of so-called ‘authentic acts’.</span></strong> <em><strong>These are instruments used by continental notaries, such as certificates of inheritance.</strong></em> The report will be submitted to the Parliament on 15 December.<br /><br /><br />Richard Frimston, a partner at London law firm Russell-Cooke and an expert in the area, explained: <strong><span style="font-size:180%;color:#ff0000;">‘Notaries feel under threat from the EU over the whittling away of their monopoly. Their reaction is to say “instead of allowing free movement of notaries you should instead allow free movement of so-called authentic acts”</span></strong>. This disadvantages common law jurisdictions where we do not have the concept of an authentic act. We have a deed.<br /><br /><br /><strong><span style="font-size:180%;color:#ff0000;">‘If this proposal went through you’re creating a fortress of civil law notaries, who can make documents within their own jurisdiction which then have to be recognised throughout the EU. We can’t make documents which are then recognised in their country – it’s not a level playing field.’<br /></span></strong><br /><br />Calling for more research before any EU-wide legislation is drafted, the CCBE stressed that EU citizens should not suffer any discrimination in cross-border legal actions. The UK law societies, meanwhile, have written separately to MEPs calling on the Parliament to table an alternative resolution that takes into account deeds and other equivalent documents.<br /><br />-------------------------------------------------------------------------------------------------<br /><br /><a href="http://www.cnue-nouvelles.be/en/000/actualites/cp-etude-acte-authentique-02-12-08-en.pdf">http://www.cnue-nouvelles.be/en/000/actualites/cp-etude-acte-authentique-02-12-08-en.pdf</a><br /><br /><strong><span style="font-size:130%;">A European Initiative for Authentic Acts: A Project Serving Citizens and Business</span></strong><br /><br /><br />Press Release<br /><br /><br />Conseil des Notariats de l’Union Européenne<br />Council of the Notariats of the European Union<br /><br /><br />Brussels, 2 December 2008<br /><br /><br />On Tuesday 2 December the European Parliament organised a forum on judicial cooperation in civil matters, in collaboration with the French Presidency of the Council of the European Union. On this occasion, the Council of the Notariats of the European Union (CNUE), represented by its president, Mr Juan Bolás Alfonso, presented the results of a study commissioned by the European Parliament on the mutual recognition and enforcement of authentic acts in Europe.<br /><br /><br /><strong><span style="font-size:130%;">The study makes a comparative analysis of national rules on private law and private international law relating to authentic acts in six EU Member States representing the different legal systems that coexist within the EU</span></strong>, namely:<br /><br /><br /><strong><span style="font-size:130%;">England, France, Germany, Poland, Romania and Sweden</span></strong>. <em><strong>After having identified the gaps and obstacles arising in the recognition and enforcement of authentic acts</strong></em> between the Member States, <strong><span style="font-size:180%;">the study proposes to remedy this with a European initiative</span></strong>.<br /><br /><br />To this end, reviewing the Brussels I Regulation on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters could be envisaged. Likewise, a horizontal Community initiative could be possible and also useful. <strong>Taking the form of a Regulation, according to Mr Bolás it would make it possible to “remove the procedural requirements involved until now in areas such as family law and company law”.</strong> <strong>Aside from simplifying procedures, “the benefits expected for citizens, families and business would be considerable in terms of costs and time”, he added</strong>. <strong><span style="font-size:180%;">The free movement of the authentic act and its intrinsic qualities, namely probative value and enforceability, would bring greater legal certainty to exchanges.<br /></span></strong></div><br /><br /><br /><div align="justify"></div><br /><br /><br /><div align="justify"><strong><span style="font-size:180%;">[THIS IS THE OSTENSIBLE PUBLIC POLICY GOAL THAT MASKS THE TRUE PURPOSE OF THE REGULATION: THE DISGUISED PROTECTIONISM OF CIVIL LAW NOTARIES, ESPECIALLY THOSE IN FRANCE, FROM EU, UK & US COMPETITION].</span></strong><br /></div><br /><div align="justify"><br />This is why, on the basis of this study and its results, the CNUE supports the creation of a Community framework that is applicable in exactly the same way to all authentic acts within its scope, and it calls on the European institutions to consider creating such a framework. The CNUE considers that this contribution will add to discussions before the vote in plenary session on 18 December 2008 of the report by MEP Manuel Medina Ortega (PES, Spain) on the creation of a European Authentic Act, and the publication at the beginning of 2009 of a Green Paper on the subject by the European Commission.<br /></div><br /><br /><div align="justify"><strong><span style="font-size:130%;">[THE STUDY FOLLOWS IMMEDIATELY BELOW]</span></strong></div><br /><div align="justify">-------------------------------------------------------------------------------------------------<br /><br /><a href="http://www.cnue-nouvelles.be/en/000/actualites/aae-etude-acte-authentique-final-25-11-2008-en.pdf">http://www.cnue-nouvelles.be/en/000/actualites/aae-etude-acte-authentique-final-25-11-2008-en.pdf</a><br /><br /><strong><span style="font-size:130%;">Comparative Study on Authentic Instruments National Provisions of Private Law, Circulation, Mutual Recognition and Enforcement, Possible Legislative Initiative by the European Union:</span></strong> England, France, Germany, Poland, Romania, Sweden</div><br /><br /><div align="justify">Study for the European Parliament</div><br /><br /><div align="justify">By the Council of the Notariats of the European Union (No. IP/C/JURI/IC/2008-019)<br /><br /><br />Nov. 25, 2008<br /></div><br /><div align="justify"><br />…<strong><span style="font-size:130%;">1.1. Aim of the study</span></strong><br /><br />The aim of this study is to provide an in-depth and objective comparative analysis of the national provisions of private law and private international law in the field of authentic instruments (or authentic acts) with special focus on their mutual recognition and enforcement within selected EU Member States in order to evaluate if a legislative initiative of the EU in this field is worthwhile or necessary.<br /><br /><br /><strong><span style="font-size:130%;">1.2. Geographic scope of the study<br /></span></strong><br />This study examines authentic instruments in six EU Member States, chosen as examples of different legal systems coexisting within the EU, namely:<br /><br /><br />- <strong><span style="font-size:130%;">England (as an example of the common law legal system);</span></strong><br />- France (as an example of the civil law or roman legal system, subtype of Code Napoleon);<br />- Germany (as an example of the civil law or roman legal system, subtype of the Germanic system);<br />- Poland and Romania (as examples of the civil law or roman legal system, subtype new Member States); and<br />- Sweden (as an example of the Nordic or Scandinavian legal system).<br /><br /><br />In making this selection, preference has been given to countries, which are generally regarded as typical within each legal system.<br /><br /><br /><strong><span style="font-size:130%;">2. Authentic instruments as the cornerstone of <span style="font-size:180%;">preventive justice</span> limited to Civil Law countries</span></strong><br /><br /><br /><strong><span style="font-size:130%;">2.1. No authentic instruments for contracts in the Common Law and in the Nordic legal systems</span></strong><br /><br /><br />Examining the examples of England and Sweden, <strong><span style="font-size:180%;">this study reinforces the traditional view, that the concept of authentic instruments for contracts or other declarations is not recognized in the Common Law</span></strong> and Nordic legal systems. In particular, the functions of the English general notaries can be compared to the certification of signatures rather than to the issue of authentic instruments.<br /><br /><br /><strong><span style="font-size:130%;">2.2. Authentic instruments as the cornerstone of <span style="font-size:180%;">preventive justice</span> in Civil Law countries</span></strong><br /><br /><br />The concept of authentic instruments is based on the Civil Law concept of preventive justice. In fact, <strong><span style="font-size:180%;">authentic instruments are the cornerstones of the concept of “preventive justice”</span></strong> (FR justice préventive; DE vorsorgende Rechtspflege; PL jurysdykcja prewencyjna; RO justiţie preventivă).<br /></div><div align="justify"><br />- <strong><em><span style="font-size:130%;">Under the concept of preventive justice, the state does not just become involved in deciding legal disputes ex post (“contentious jurisdiction”</span></em></strong>; FR juridiction contentieuse; DE streitige Gerichtsbarkeit). <strong><span style="font-size:130%;">Instead, it provides for a preventive legal control through authentication by authentication authorities</span></strong> (in particular by civil law notaries as external holders of a public office) for transactions with a particular economic and/or personal importance to the public interest or to the parties concerned. </div><br /><br /><div align="justify"><strong><span style="font-size:130%;">[GENERALLY SPEAKING, IN OTHER WORDS, AUTHENTIC ACTS ADMINISTRATIVE PRACTICE PREEMPTS LITIGATION]<br /></span></strong><br /><br />- Obliged by law to be as neutral as a judge, <strong><span style="font-size:130%;color:#ff0000;">the authenticating official has to ensure that contractual provisions fully comply with the law (preventive legality control), that the parties have full (mental and legal) capacity to enter into their intended agreement and that they have fully understood the legal implications of their commitments</span></strong>. Otherwise, the official is required by law to refuse to complete the transaction.<br /><br /><br />- The idea underlying this system is <strong><span style="font-size:180%;">to establish legal certainty and legal security by means of authentic instruments in order to avoid costly and time-consuming litigation about the validity and meaning of contractual provisions after the transaction has been concluded</span></strong>.<br /><br /><br /><strong><span style="font-size:130%;">3. Definition of authentic instruments<br /></span></strong><br /><br />Present EC Law: authentic instruments have been defined by the European Court of Justice in the <em>Unibank</em> decision1, following the Jenard-Möller Report, and by the EC legislator in Article 4 (3) (a) Regulation (EC) No 805/2004 on the European Enforcement Order2:<br /><br /><br />- An authentic instrument is an instrument which has been established by a public authority or other authority empowered for that purpose by the Member State in which it originates;<br /><br />- in the required form;<br /><br />- and the authenticity must relate not only to the signatures, but also to the and content of the instrument.<br /><br /><br />Thus, EC law looks to national laws concerning authenticating authorities and authentication procedures.<br /><br /><br />National Law: This definition is consistent with the existing definitions in the national laws of the <strong><span style="font-size:130%;">four civil law systems examined in this study (France, Germany, Poland and Romania).</span></strong><br /><br /><br />In those systems of law, authentic instruments are defined as follows:<br /><br /><br />- The instrument has to be issued by a public authority or an official.<br /><br />- The authenticating authority or official has to be empowered to authenticate the type of act in question.<br /><br />- The authenticating authority or official has to act within its competence in issuing authentic instruments.<br /><br />- The authenticating authority or official must follow a specific authentication procedure.<br /><br />- It must also follow the relevant rules on the formalities for drawing up and issuing authentic instruments.<br /><br />- The resulting legal effect is that the authentic instrument provides conclusive proof of the content of the instrument.<br /><br />- Generally, obligations arising from authentic instruments are enforceable (in some States by operation of law; in other States if a specific submission to enforcement is contained in a declaration in the authentic instrument).<br /><br /><br /><strong><span style="font-size:130%;">Proposal: There is no need to change the existing definitions (although their wording might be formulated more precisely).</span></strong><br /><br />-------------</div><br /><div align="justify">1. European Court of Justice (ECJ), Judgement of 17 June 1999 - C-260/97, Unibank, ECR 1999, p. I-3715. </div><div align="justify"><br />2. Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims, OJ L 143, 30.4.2004, p. 15.<br /><br /><br />4.1. <strong><span style="font-size:130%;">Abolition of apostille<br /></span></strong><br />Present situation:<br /><br /><br />- In order for its core legal effects – heightened probative value and enforceability – to be recognised, <strong>an authentic instrument needs to be authentic (or ”genuine“) in the sense that it has been established by the public official from whom it appears to originate</strong>. While under national law the four civil law systems examined in this study there is a legal presumption of authenticity for domestic authentic instruments, <strong>authenticity usually needs to be positively proven where instruments are used cross-border</strong>. This has traditionally been done by following the procedure known as legalisation.<br /><br /><br />- The Hague Convention of 5 October 1961 which is applicable to all EU Member States has replaced legalisation with the apostille procedure.<br /><br /><br />- There are some general bilateral agreements between Member States abolishing the need for an apostille and some multilateral agreements (mostly on specific subject matters), which some Member States have ratified. However, these are far from being universally applicable within the EU. In particular, a European Convention abolishing legalisation of documents in the Member States of the European Communities3 has never come into force.<br /><br /><br />- <strong>The apostille procedure is an obstacle both in terms of time and money to the unhindered circulation of authentic instruments within the EU</strong>.<br /><br /><br />- Under EC Regulations already in force concerning the free circulation and enforceability of certain types of authentic instruments (Brussels I Regulation4, Brussels II bis Regulation5 and the Regulation on the European Enforcement Order), the need for an apostille has already been abolished.<br /><br /><br /><strong><span style="font-size:130%;">We propose to abolish the requirement for an apostille completely between all EU Member States.</span></strong> In a European Area for Justice, there should generally be no procedural conditions to be fulfilled before an authentic instrument created in one Member State can effectively be used in another.<br /></div><br /><br /><br /><div align="justify">------------<br /><br />3 Convention Abolishing the Legalisation of Documents in the Member States of the European Communities, done at Brussels on the 25th May 1987.<br /></div><br /><br /><div align="justify">4 Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, OJ L 12, 16.1.2001, p. 1.<br /></div><br /><br /><div align="justify">5 Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, OJ L 338, 23.12.2003, p. 1.<br /></div><br /><div align="justify"><br /><br />… 1.2.1. <strong><span style="font-size:130%;">Defining criteria</span></strong><br /><br />If we compare these definitions, their criteria are almost identical in the four civil law systems analyzed:<br /><br /><br />- The instrument has to be issued by a public authority or by an official.<br /><br />- The authenticating authority or official has to be empowered for authentication of this act (either by an empowerment to authenticate in general, or a specific empowerment for certain types of document or subject matter).<br /><br />- The authenticating authority or official has to act within its competence for establishing authentic instruments.<br /><br />- The authenticating authority or official must follow a specific authentication procedure.<br /><br />- It must also follow the specific rules on the form of how to draw up and issue the authentic instrument.<br /><br /><br />Sometimes the legal effects of an authentic instrument are regulated in the same article as the definition. There are two main legal effects:<br /><br /><br />- conclusive proof of the content of the instrument (and not only of the signature); and<br /><br />- (if the instruments authenticates a contract or another legal act by the parties) enforceability (which might require a specific submission to enforcement).<br /><br /><br />1.3. <strong><span style="font-size:130%;">Types of authentic instrument</span></strong><br /><br />Authentic instruments might be categorized by various factors:<br /><br /><br />- either by the authenticating authority (notarial acts, authentic instruments by courts, authentic instruments by administrative agencies), which seems to be the usual categorization in the French legal doctrine;<br /><br />- by the area of law to which they relate to (civil law, administrative law, procedural law), which are defined differently in Polish law; or<br /><br />- by the nature of their content (contracts and other declarations, decisions and other official acts, statements of fact), which is the distinction of the German law (§§ 415 ss.ZPO).<br /><br /><br />It might be useful to explain the last distinction by reference to the content of the instrument. Here one can distinguish three basic types:<br /><br /><br />- <strong><span style="font-size:130%;">authentic instruments on contracts or other juridical acts</span></strong> (FR acte juridique; DE Rechtsgeschäft; RO act juridic) <em><strong>or</strong></em> <strong><span style="font-size:130%;">generally on declarations of intention</span></strong> (FR déclaration de volonté; DE Willenserklärung; RO declaraţii de voinţă) <em><strong>or</strong></em> <strong><span style="font-size:130%;">on other declarations of persons</span></strong> (FR déclaration; DE Erklärung; RO declaraţie) - whether of legal significance or not (DE § 415 ZPO);<br /><br />- <strong><span style="font-size:130%;">decisions and other official acts or generally declarations of the public authority itself</span></strong> (DE § 417 ZPO); and finally<br /><br />- <strong><span style="font-size:130%;">authentic instruments about (other) facts </span></strong>(Tatsachen) (DE § 418 ZPO)19.<br /><br /><br />This distinction is particularly important, because in most civil law systems competence to authenticate differs according to the content of the instrument20:<br /><br /><br />- <strong><span style="font-size:180%;">The power to authenticate contracts and other declarations by the parties has generally been entrusted to the civil law notaries</span></strong>.<br /><br />- While <strong>the power to authenticate facts (with the probative value attached to the instrument) generally is given to specific authorities</strong> limited for specific facts (e.g. to the civil status registers concerning the facts of birth or death).<br /><br />- <strong>Other public authorities generally are only competent to authenticate their own official acts</strong>, as for example the decisions of an administrative authority or of a court: The public authority may authenticate these acts without having to refer to an authenticating official.<br /></div><br /><br /><br /><div align="justify">----------------</div><br /><div align="justify"><br />19 A similar distinction is made by the Romanian jurisprudence.<br /></div><br /><br /><div align="justify">20 See also Part One, par. 5.<br /><br /><br /><br />… 2. <strong><span style="font-size:130%;">Do similar instruments exist in the Common Law and Nordic legal systems?</span></strong><br /><br /><br />2.1. <strong><span style="font-size:130%;">England </span></strong><br /><br />2.1.1. <strong><span style="font-size:180%;">No authentic instrument</span></strong><br /><br /><strong><span style="font-size:180%;">England has no equivalent of the civil law system of preventive justice</span></strong>.<br /><br /><br /><strong><span style="font-size:180%;">Consequently, English law – like the whole of the Common Law legal family – has no concept of authentic instruments either23</span></strong>. The Common Law system does not provide for any contractual instrument issued by a neutral official, which gives full proof of its content and can be enforced without further judicial examination. There is no undisputed about this among the representatives of the Common Law themselves24. In spite of many interconnections between Common law and Civil law in general, both legal families have developed along separate paths in this respect25.<br /><br /><br /><em><strong><span style="font-size:130%;">So we have to look whether there is any similar instrument equivalent to an authentic instrument.</span></strong></em><br /><br /><br />2.1.2. <strong><span style="font-size:130%;">Public documents<br /></span></strong><br /><br /><strong><span style="font-size:130%;">English law does give some special evidentiary effect to public documents.</span></strong> According to Section 7(2) of the Civil Evidence Act, “public documents (for example, public registers, and returns made under public authority with respect to matters of public interest) are admissible as evidence of facts stated in them”26.<br /><br />--------------</div><br /><br /><br /><div align="justify"><br /><strong><span style="font-size:130%;">23</span></strong> E.g. ZWEIGERT/KÖTZ, Einführung in die Rechtsvergleichung, volume II (1969), p. 44: <strong><span style="font-size:180%;">“The Notary in his function as a public official entrusted with the establishment of authentic instruments is unknown in the legal concepts of the Anglo-American legal family</span></strong>. There is no such thing as the ”notarielle Urkunde“ (§ 128 BGB), the “Notariatsakt“ (e.g. § 551 ABGB) or the “acte authentique“ (Art. 1312 Code civil) under Common Law“ (own translation from the German original). Cf. also LEUTNER, Die vollstreckbare Urkunde im europäischen Rechtsverkehr (1996), pp. 138 ss. (with further references); SCHLOSSER, EUZivilprozessrecht, 2nd edit. (2003), Art. 57 EuGVVO note 2. In detail LANGHEIN, Kollisionsrecht der Registerurkunden, p. 39 with further references: “Notarial authentication (…) and the authentic instrument are unknown to (the Common Law)“ (translated from German).<br /><br />24 Cf. e.g. CLANCY, The Organisation and Function of the Profession of Notary in the United Kingdom, Notarius International, Vol. 5, 2000, p. 102: “(…) the Anglo-American legal system does not recognise the role of the publicly certified instrument (…).” Ibid., p. 103: “(…) the notarial act and notarial evidence have never enjoyed the status of “authenticity” in common law jurisdictions.” In the same sense CLAUDET, National Report England, Notarius International 2002, 39, 40.<br /><br />25 As will be shown later in Part Two, the fact that the concept of the authentic instrument is unknown to England, results on the Community level among other things in the consequence that there is no need for transferring those provision of Community law into national law that deal with the cross-border recognition and enforcement of notarial authentic instruments as far as the establishment of such instruments is concerned. Consequently, the Commisson’s European Judicial Civil Atlas clearly points out with regard to the establishment of a European enforcement order in England based on an authentic instrument according to Article 25 of the Regulation (EC) No 805/2004 of the European Parliament and of the Council creating a European Enforcement Order for uncontested claims: „While Authentic Instruments from other Member States will be enforced in England and Wales they are not produced in England and Wales. Therefore there is no need to designate an authority to certify them.”<br /></div><br /><br /><br /><div align="justify">------------</div><br /><div align="justify"><br />26 See also Wilton & Company v. Phillips (1903) 19 T.L. R. 390.<br /><br /><br /><br /><strong><span style="font-size:180%;">However, public documents under English law must not be mistaken for authentic instruments.</span></strong> <strong>A public document</strong> is rather different from the authentic instrument in that it<strong> only relates to the official business of public agencies or other public officials</strong>. Consequently, a private juridical act does not achieve any particular public or authentic status by virtue of the participation of a notary in the setting up of the documents.<br /><br /><br /><strong>In order for a document to enjoy the status of a public document, it must have a public origin and a public subject matter, and must be in the form of a public document with some indication of authenticity as what it purports to be</strong>.<br /><br /><br />- Specifically, a public document must on its face be issued by a public agency or official acting in the pursuit of his public duties. Public documents can be issued by any organ of national or local government including courts as well as executive, legislative and administrative bodies.<br /><br /><br />- The document must relate to the official business of the agency. Examples would be a birth certificate issued by the Registrar of Births, or a report of a Parliamentary committee, or a judgment of a court. Private business documents do not achieve public document status merely by being typed on a government letterhead.<br /><br /><br />- Finally, almost all public issuers have some form by which their issued documents are identified as genuine – usually a seal, an official's signature, or both.<br /><br /><br />2.1.3. <strong><span style="font-size:130%;">Notarial documents<br /></span></strong><br /><br />Documents set up by English general notaries27 <strong><span style="font-size:130%;">mainly serve as a mere certification in the above-mentioned sense, where the professional does not assume any responsibility for the legal correctness of the content and the validity of the underlying agreement</span></strong>.<br /><br /><br />- <strong><span style="font-size:130%;">English law does not require a notarial instrument for any type of contract or other legal act. Also, the notarial procedure, the form of a notarial instrument and the duties of the English general notaries are not regulated by statute in the same way as those of their civil law counterparts</span></strong>. E.g. there are no provisions on legal control or on independent legal counsel to the parties. Unlike the civil law notary, the English general notary is not a neutral intermediary whose function is to counsel both parties and draft a balanced contract28<br /><br />.<br />- <strong><span style="font-size:180%;">Thus, the English notary only certifies the genuineness of a signature or the identicalness of a copy with the original</span></strong>. The document thus produced is not an authentic instrument.<br /><br /><br />- <strong><span style="font-size:180%;">Consequently, such “notarisations” do not share the main legal effects of authentic instruments, i.e. enforceability and full probative value</span></strong>. Notarial acts do not have any explicit statutorily-based evidentiary status as sufficient proof of their contents <strong><span style="font-size:180%;">and are not entitled to the particular evidentiary status of a public document under English law</span></strong>29; although they may have enhanced credibility in individual cases by virtue of the circumstances under which they were prepared or the mercantile context in which they are used. A recent amendment to English procedural rules makes a notarial signature sufficient proof of authenticity (in the sense of genuineness) of private documents30. That, however, just grants it the same status as a document with a certification of signature in civil law jurisdictions, not as an authentic instrument.<br /><br /><br />- <strong><span style="font-size:180%;">English law does not know the civil law concept of an “executable title” based on a notarial act as is common in civil law jurisdictions. Only a judgment of a court can be made the subject of a civil execution process in favour of a private party</span></strong>. English notaries have no power to create a document that can be executed against a debtor or his property without first going to court, initiating a suit, and obtaining a court judgment.<br /><br />--------------<br /><br />27 For English notaries in general see: BROOKS/HELMHOLZ/STEIN, Notaries Public in England since the Reformation, published for the Society of Public Notaries of London, Norwich, Erskine Press, 1991; READY, Brooke's Notary, 12th edit. 2002; SHAW, ‘Notaries in England and Wales; Modernising a profession frozen in time’, International Journal of the Legal Profession, 2000, vol. 7, no. 2, pp. 141-155; SHAW, ‘Notaries in England and Wales: What future in a climate of globalisation?’ Notarius International 1-2/2006, p. 43. </div><br /><br />28 According to Section 6.2. of the Notaries Practice Rules 2001, a notary must not act for both parties to a transaction unless both have consented in writing; and he is satisfied that there is no conflict of interest between the parties, but where a conflict of interests exists or arises a notary may act or continue to act for both parties for the sole purpose of resolving or attempting to resolve that conflict of interest.<br /><br /><br />---------<br /><br /><div align="justify"><br />29 E.g. see READY, Brooke's Notary (12th Edition, 2002), Sec. 6-08.<br /></div><br /><br /><div align="justify">30 Rule 32 (20) of the Civil Procedure Rules.<br /></div><br /><br /><br /><div align="justify"><br />… 2.1.5. <strong><span style="font-size:130%;">Results for England</span></strong><br /><br /><br />Thus our result for England is: <strong><span style="font-size:180%;">there are neither authentic instruments for contracts or other private acts nor anything equivalent to authentic instruments in English law, just as the civil law concept of preventive justice is not known in England either</span></strong>.<br /><br /><br />- English formal requirements are about writing, witnesses and filing, but not about authentication.<br /><br />- English notarial instruments are not similar to authentic instruments. They come closest to mere certifications of signature.<br /><br />- English public documents do not record declarations by the parties, but relate to the official business of public agencies or other public officials only.<br /><br /><br />… 3.1.2. Comparative analysis </div><br /><br /><div align="justify"><strong><span style="font-size:130%;">[THE TYPES OF BUSINESS TRANSACTIONS REQUIRING 'AUTHENTIC ACTS' REFLECT THE EXTENT OF THE DISGUISED PROTECTIONISM SOUGHT]<br /></span></strong><br /><br />The comparative table shows that the legal acts for which the four civil systems require authentic instruments are similar, but not identical:<br /><br /><br />- <strong><span style="font-size:130%;">In all four civil law systems studied, legal acts changing the civil status (such as recognition of paternity or consent to an adoption) usually require an authentic instrument</span></strong> (unless these acts fall within the exclusive competence of the courts anyway). These acts are of highest importance to the persons involved. Legal certainty as to family relations is also important to third parties.<br /><br /><br />- <strong><span style="font-size:130%;">The same applies generally to matrimonial or antenuptial agreements</span></strong>, but does not in all civil law systems studied extend also to maintenance agreements. However, Germany recently introduced an authentication requirement for maintenance agreements, because it was generally considered to protect the weaker spouse from rash decisions, either during the marriage or in the course of divorce proceeding.<br /><br /><br />- In all four civil law systems studied, testaments can be made in notarial form, but other forms of testaments are also permitted. Only for a succession contract (DE Erbvertrag) which binds the parties, the German law requires mandatory authentication. The notarial form ensures that the testament has not been falsified. Also, it ensures that the will of the testator is recorded clearly and that the testator has been advised about its legal effects (e.g. about reserved portions or the various testamentary provisions permitted by the succession law).<br /><br /><br />- Also <strong><span style="font-size:130%;">the transfer of a succession typically requires an authentic instrument</span></strong>. The underlying reason is both to prevent an unconsidered transfer and to provide legal certainty to heirs. In Romania, in cases of transfer of a succession an authentic instrument is mandatory, when land or pieces of land are part of the succession.<br /><br /><br />- <strong><span style="font-size:130%;">Donations (or more precisely the promise to donate) require an authentic instrument in all four civil law systems studied</span></strong>. The donor should not be bound by a rash word, but only by a formal act undertaken after sufficient consideration of his or her promise.<br /><br /><br />- <strong><span style="font-size:180%;">In land law, generally both the transfer of immovable property and the creation of limited rights in rem in land require an authentic instrument (or the latter at least a certification of signature) for the registration</span></strong>. <em><strong>The underlying idea is to ensure the functioning of the land register and to guarantee the legal certainty provided by the land register in combination with the underlying authentic instrument</strong></em>. For land, legal security is even more important than for movables – if a piece of land is in dispute, then it cannot be used securely. Nor can land be replaced (whereas movables often are generic).<br /><br /><br />- <strong><span style="font-size:130%;">For the establishment of companies, three out of the four civil law systems studied require an authentic instrument</span></strong> (and the fourth system (FR) for one specific type of company), in particular for limited companies and for joint stock companies, some also for some types of partnership38.<br /><br /><br />- <span style="font-size:130%;"><strong>A transfer of shares </strong><strong>requires formalities</strong></span><span style="font-size:100%;"> in two of the four civil law countries studied (DE, PL).</span> The formal requirement is meant to ensure proof of the chain of title. In Germany the authentic instrument and the list of the partners which is based on the act of transfer even serves as the basis for good faith acquisitions39.<br /><br /><br />- <strong><span style="font-size:130%;">Enforceable title may be established in all four civil law systems studied by authentic instruments</span></strong>, whereas in England and Sweden in general enforceable title cannot be created by a declaration by the parties (with minor exceptions, in particular concerning maintenance agreements in Sweden, concluded before the Swedish maintenance office).<br /><br /><br />The legal situation in England and Sweden (as the examples studied of the Common Law or the Nordic systems respectively) is very different:<br /><br /><br />- Many of the above-mentioned contracts or legal acts do not require any formalities at all.<br /><br />- If there is any formal requirement, it is limited to writing (including the signature of the party) and sometimes also the attestation by two witnesses. The witnesses are meant to prevent fraud and to enhance the probative value.<br /><br />- However, none of the legal acts for which civil law countries “typically” require an authentic instrument requires the involvement of any official in England and Sweden. Thus, there is no requirement of an impartial legal counsel and no legal control, which are the key elements of authentication requirements in the civil law countries.<br /></div><br /><br /><br /><div align="justify">----------<br /><br />38 For the role of the civil law notaries in companies law, see in particular: DE: FITZ/ROTH, Der Notar im Kapitalgesellschaftsrecht, JBl. 2004, 205; PRIESTER, Notar und Gesellschaftsrecht, DNotZ 2001, Sonderheft (special edition) p. 52*, 64*; RO: POPESCU, Contractul de societate, Ed. Lumina Lex, Bucureşti, 1996.<br /><br />39 DE §§ 16, 40 GmbHG (reform as of 1.11.2008, BGBl. = OJ 2008 I, p. 2026); see BT-Drucks. (parliamentary materials of Bundestag, the lower house of Parliament) 16/6140, p. 44; HARBARTH, Gutgläubiger Erwerb von GmbH-Geschäftsanteilen nach dem MoMiG-RegE, ZIP 2008, 57; KÖNIG/BORMANN, Die Reform des Rechts der Gesellschaften mit beschränkter Haftung, DNotZ 2008, p. 652, 668 s.<br /><br /></div><br /><br /><br /><div align="justify"><br />3.2. Legal objectives of authentication requirements for contracts and other declarations<br /><br />3.2.1. Prevention of undue haste<br /><br />3.2.2. Guarantee of impartial and qualified counsel for the parties<br /><br />3.2.3. Guarantee of reliable proof<br /><br />3.2.4. Enforceability<br /><br />3.2.5. Legal certainty<br /><br />3.2.6. Legal control<br /><br /><br /><strong><span style="font-size:180%;color:#ff0000;">Also the authentication of a contract serves as a legal control by the state:</span></strong><br /><br /><br />- that might be preliminary legality control (FR contrôle légal préventif; DE vorbeugende Rechmäßigkeitskontrolle; RO control juridic preventiv);<br /><br />- but includes also notification of controlling agencies (FR devoir de notification; DE Mitteilungspflichten; RO notificarea autorităţilor competente).<br /><br /><br /><strong><span style="font-size:130%;">The legality control might cover various areas</span></strong>.<br /><br />- In particular, <strong><span style="font-size:130%;">the notarial intervention in authenticating a contract also obliges the notary to deny authentication and to notify the authorities in case of a suspicion of money laundering</span></strong> (FR blanchiment d’argent, DE Geldwäsche; RO spălarea banilor)50.<br /><br /><br />In particular, <strong><span style="font-size:130%;">the authentication and the notification duties of the authenticating official might help the state in collecting taxes</span></strong> (FR faciliter la perception d’impôts ou de taxes).<br /><br />- In some states, the notary is only obliged to notify the tax authorities concerning the acts authenticated by him (DE).<br /><br />- <strong><span style="font-size:130%;">In other states, the notary is also personally responsible for collecting or retaining the tax: e.g. in France and in Romania51, the notary acts as an unpaid auxiliary of the State in collecting taxes.</span></strong> If the legal act recorded in the authentic instrument is taxable, the notary is responsible for collecting the tax for the State. Therefore, the notary is obliged to verify the sincerity of the tax declarations by the parties and to withhold the registration rights due to the acts he has recorded. In principle, the notary is personally liable for the payment of the taxes arising from the authentic instruments authenticated by him.<br /></div><br /><div align="justify">------------<br /><br />50 FR Article L. 562-1 Code on Money and Finances; DE § 11 GwG (Geldwäschegesetz = Law against Money Laundering, version of 13 August 2008 (BGBl. 2008 I, 1690); PL Article 2 Law of 16 November 2000 concerning the fight against money laundering and against the financing of terrorisme (Official Journal 2003 No 153, 1505; 2004 No 62, 577); RO Article 8(e) Law No 656/2002 on the prevention and punishment of money laundering.<br /><br />51 Article 77 ss. Law No 573/2003 - Romanian Fiscal Code.<br /><br /><br /><br />… <strong><span style="font-size:130%;">Part Three</span></strong><br /><br /><strong><span style="font-size:130%;">REGULATORY INTERVENTION BY THE EUROPEAN UNION</span></strong><br /><br /><br />After having analysed the existing national provisions on authentic instruments in Part One and the existing rules on the circulation of authentic instruments, this study deals in the following Part Three with the question of whether legislative action at EU level is needed to promote the free circulation of authentic instruments in cross-border cases – and if so, how such legislation should be framed.<br /><br /><br />… 1. <strong><span style="font-size:130%;">Concept of authentic instrument not uniformly recognized throughout the EU</span></strong><br /><br /><br /><strong><span style="font-size:130%;">The findings in Parts I und II reinforce the traditional notion that the concept of preventive justice, while being recognised in all Member States adhering to the Civil Law System, is not at all recognised in those countries belonging to the Common Law or Nordic legal systems.</span></strong> Consequently, the authentic instrument that is the core legal means and very foundation of the whole concept of preventive justice, has been found not to exist in the latter sets of countries. In spite of many interconnections between Common Law and Civil Law in general, both legal families have developed along separate paths in this respect.<br /><br /><br />The study confirmed this finding by taking the situations in England and Sweden as examples. For England, the study found that in line with academic opinion among the representatives of the Common Law, there is no instrument like the authentic instrument. Rather, the activities of English general notaries for the most part boil down to mere certifications that fall short of producing authentic instruments.<br /><br /><br />As the study found, <em><strong>since the concept of the authentic instrument is not recognised by Common Law systems, in consequence there is no need for transferring those provisions of Community law into national law that deal with the cross-border recognition and enforcement of authentic instruments as far as the establishment of such instruments is concerned</strong></em>. Consequently, the Commission’s European Judicial Civil Atlas rightly points out, with regard to the establishment of a European enforcement order in England, based on an authentic instrument according to Article 25 of the Regulation (EC) No 805/2004 of the European Parliament and of the Council creating a European Enforcement Order for uncontested claims:<br /><br /><br /><strong><span style="font-size:180%;">“While Authentic Instruments from other Member States will be enforced in England and Wales they are not produced in England and Wales. Therefore there is no need to designate an authority to certify them.”</span></strong> 310<br /><br /><br />… This also applies to the other Common Law countries and to the Nordic countries…<strong><span style="font-size:180%;">With authentic instruments being produced on the Continent, but not in the Common Law </span></strong>or Nordic countries, <strong><span style="font-size:180%;">the Common Law</span></strong> or Nordic <strong><span style="font-size:180%;">countries already feel at a certain disadvantage</span></strong> <em><strong>since, under existing Community legislation with regard to the circulation of authentic instruments311, they have to accept the cross-border circulation and enforcement of foreign authentic instruments without being able to issue such instruments themselves.<br /></strong></em><br /><br />Consequently, it might be argued that any further Community intervention might even deepen this gulf between the Common Law/Nordic approach on the one hand, and the Continental-European model on the other. As a matter of fact, the English national reporters of this study pointed to this concern very explicitly and suggested excluding the Common Law countries and the Nordic countries from the scope of application of any further Community action on the free circulation of authentic instruments.<br /></div><br /><div align="justify">-------------<br /><br />310 Commission’s European Judicial Atlas in Civil Matters: http://ec.europa.eu/justice_home/judicialatlascivil/html/rc_information_en.htm<br /><br />311 See infra par. 3.<br /><br /></div><br /><div align="justify"><br />… 6.9. <strong><span style="font-size:130%;">Interim conclusion on the legal areas relevant for regulatory intervention<br /></span></strong><br /><br />To sum up our findings on the need for Community intervention, this study began by tackling an issue of general concern in this context. This is that <strong><span style="font-size:180%;">as authentic instruments are the product of the continental European system of preventive justice they are not produced in those legal systems following the common law approach like England and Wales, Ireland</span></strong>, and the Nordic countries. Based on the concerns pointed out in the English country report, <em><strong><span style="font-size:130%;">the study thus raised the question whether any regulatory intervention on the part of the Community that specifically deals with the circulation of authentic instruments might even serve to deepen the already existing gulf between the civil law Member States and the common law States</span></strong></em>, in that the latter would have to recognise and enforce foreign authentic instruments without being able to produce them themselves. This study found this to be a primarily political issue, though, and therefore refrained from dealing with it in greater detail.<br /><br /><br />This issue aside, the study found that one has to differentiate between kinds of authentic instrument. As regards the function of authentic instruments as enforcement titles the various EC regulations enabling a free movement of titles already existing or at least about to be enacted already seem to cover most situations. Nevertheless, an aspect that might deserve further attention on the part of the Community legislator is the diversity of rules regarding the exequatur. As analysed above, the older regulations Brussels I and Brussels II bis, still provide for some form of simplified exequatur, whereas the newer EEO Regulation does away with any kind of exequatur. The study found reasons that given today’s advanced state of European integration with regard to the free circulation of enforcement titles the time may be ripe for one single and uniform regulation substituting all existing instruments and repealing within its scope of application the exequatur.<br /><br /><br />As regards authentic instruments subject to registration in national public registers the study found that they are generally not covered by European legislation. The study found, though, that Community legislator’s reluctance in this field does not come by mere accident but rather is based on certain well-founded grounds. In particular, the differences both in structure, organization and proceedings of the various national public register systems in place in the Member States including the differences regarding the nature and extent of public faith assigned to register entries as well as the close interconnection between those peculiarities of national registration law on the one hand and the way of drawing up an authentic instrument subject to entry into a public register on the other strongly speaks against including such instruments within the scope of EU regulatory intervention. This seems to be true at least as long as the national registers remain within the regulatory domain of the Member States.<br /><br /><br />The study thus concluded that <strong><span style="font-size:180%;">for the time being there is no need for regulatory intervention particularly with regard to authentic instruments dealing with rights in rem in immovable property that are the basis of registration in a public real estate register</span></strong>.<br /><br /><br />With regard to authentic instruments dealing with company law matters the study with similar reasoning came to doubt the need for intervention for instruments subject to registration. <strong><span style="font-size:130%;">Against the current development of European <span style="font-size:180%;">company law</span> and the ever-increasing need for companies to do cross-border business, though, </span><span style="font-size:180%;">the study decided in favour of incorporation of authentic instruments in this area into future regulatory intervention by the Community</span></strong>.<br /><br /><br />Also, given the already more-advanced state of European integration for authentic instruments on civil status the study found reasons speaking in favour of Community intervention to further facilitate the free circulation of these instruments. In particular, the study pointed to apostille procedures and the related cross-border recognition of the instrument’s heightened probative value.<br /><br /><br />With regard to authentic instruments not subject to entry into national public registers the study found that here, too, repealing the apostille procedure and substituting it by an expost facto control in cases of serious doubt as to the authenticity of the instrument, as well as providing for a general cross-border recognition of the instrument’s probative value, might contribute to further facilitating the free circulation of authentic instruments.<br /><br /><br />It needs to be pointed out, though, that a serious evaluation of the issue of need of regulatory intervention ultimately remains difficult given the lack of well-founded reliable data both on the extent of today’s cross-border use of authentic instruments and on the kind of possible problems connected to any such cross-border use in any given case.<br /><br /><br />… 2. Soft instruments like recommendations and furtherance of cross-border networking systems<br /><br /><br />… Especially against the background of the gulf analysed above between the Member States following the civil law system of preventive justice and hence knowing the authentic instrument and the common law States where such instruments are not produced one might indeed consider some kind of a “soft” Community-based development of networking systems rather than a binding legislative measure.<br /><br /><br />… <strong><span style="font-size:130%;">Chapter III</span></strong><br /><strong><span style="font-size:130%;">Scope and content of a possible legislative instrument</span></strong><br /><br /><br />… 2. <strong><span style="font-size:130%;">Geographic scope</span></strong><br /><br /><br /><strong><span style="font-size:130%;">One of the main political decisions will be whether or not the proposed new rules should regulate</span></strong> only the mutual recognition and enforcement of authentic instruments within the Civil Law Member States, or whether <strong><span style="font-size:130%;">also the Common Law</span></strong> and the Nordic <strong><span style="font-size:130%;">Member States</span></strong> should be required to recognise and enforce authentic instruments.<br /><br /><br /><strong><em><span style="font-size:130%;">We propose that the new rules should apply to all Member States (except Denmark, but</span></em></strong> <strong><span style="font-size:180%;">including the United Kingdom if it chooses so).</span></strong> This is the approach of all existing and proposed Regulations. The Common Law and the Nordic Member States are already obliged to enforce authentic instruments under the Brussels I and II bis Regulations and the EEO Regulation. Abolishment of the apostille and the general recognition of the probative value of authentic instruments do not seem to place too high a burden on these countries.<br /><br /><br />… 2.2. <strong><span style="font-size:130%;">Effects on the English judicial system</span></strong><br /><br /><br /><span style="font-size:180%;color:#ff0000;"><strong>Our national reporters for England, Prof. Murray and Prof. Watson, were highly critical of this approach. They favour a restriction of the new rules to the Civil Law Member States. In their opinion, it would be too intrusive and run against existing principles of the Common Law evidence rules to require a Common Law judge to accept strict rules of evidence for foreign authentic instruments and to deny the judge any discretion in weighing the documentary evidence. So applying the probative force of authentic instruments also in England etc., would introduce a completely new set of evidence rules</strong></span>…<br /><br />-------------------------------------------------------------------------------------------------<br /><br /><a href="http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A6-2008-0451+0+DOC+PDF+V0//EN">http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A6-2008-0451+0+DOC+PDF+V0//EN</a><br /><br /><strong><span style="font-size:130%;">EUROPEAN PARLIAMENT REPORT with recommendations to the Commission on the European Authentic Act</span></strong> (2008/2124(INI)), Committee on Legal Affairs, Rapporteur: Manuel Medina Ortega (A6-0451/2008) <strong>(11/19/08)</strong><br /><br /><br /><strong><span style="font-size:130%;">MOTION FOR A EUROPEAN PARLIAMENT RESOLUTION with recommendations to the Commission on the European Authentic Act</span></strong> (2008/2124(INI))<br /><br /><br />The European Parliament,<br /><br /><br />… K. <strong>whereas the key characteristic of the authentic act is that it has a greater probative value than a private agreement and that this probative value, which must be accepted by the judge</strong>, is regularly conferred on it in Member State legislation on account of the trust placed in acts drawn up, in the context of legal transactions, by a public officer appointed for this purpose or by a public authority3,<br /><br /><br />L. whereas the prerequisite for the probative value of an authentic act is recognition of its authenticity, in that it emanates from a public official vested with the power to draw up authentic acts or from a public authority; whereas mutual trust in the legal systems of the Member States justifies making authenticity verification procedures only applicable in future when serious doubts arise as to the veracity of the document,<br /><br /><br />… N. whereas differences in the structure and organisation of public registry systems in the field of property ownership, as well as differences concerning the nature and scale of the public confidence placed in them, mean that the transfer of immovable property rights has to be excluded from a future Community instrument, given the close correlation between the method of drawing up an authentic act and entry into the public register,<br /><br /><br />O. whereas, as regards the recognition of legal decisions across the Union, this exclusion corresponds to attributing exclusive competence to the courts where the property is situated for all appeals relating to immovable property rights and to the courts on the territory where the public register is kept for all appeals relating to the validity of entries in the public register4,<br /><br /><br />P. <strong>whereas the institution of the authentic act does not exist in common-law systems, in particular the law of England and Wales, or in Nordic countries; whereas although in England and Wales there exist solicitors who act as notaries public and the profession of scrivener notaries, those lawyers cannot produce authentic acts, but merely certify signatures, and accordingly, in adopting any legislation on European authentic acts, action should be taken to ensure that no confusion can arise in this respect</strong>; whereas, in turn, every precaution should be taken to ensure that authentic acts cannot be used in countries where such acts cannot be made by nationals of those countries in order to circumvent procedures prescribed by the those countries' legal systems (e.g. grant of probate); whereas, in addition, in order to raise awareness among legal professionals in those Member States where authentic acts do not exist, a suitable information campaign should be initiated by the Commission and every effort should be made to ensure that common law legal professionals are aware of the work done by civil-law public officials and of the potential advantages for their clients – in terms of, in particular, legal certainty – of using authentic acts in transactions which they are proposing to conclude in those countries where that instrument is used; whereas this underscores a need often expressed by Parliament's Committee on Legal Affairs for trans-European networks of legal practitioners, information campaigns and material and common training, which the Commission is called upon to promote,<br /><br /><br />Q. whereas the Regulation requested shall not apply either to matters relating to the applicable law covered by other Community instruments or to questions relating to the competence, organisation and structure of public authorities and officials, including the authentication procedure, which come under the jurisdiction of the Member States,<br /><br /><br />1. Considers that mutual trust in the field of law within the Community justifies the future abolition of procedures for checking the accuracy of authentic acts in cross-border matters; considers that this recognition of an authentic act for the purpose of its use in the requested Member State can only be refused in the case of serious and substantiated doubts as to its authenticity, or if recognition is contrary to public policy in the Member State requested;<br /><br /><br />2. Requests the Commission to submit to Parliament, on the basis of Article 65(a) and the second indent of Article 67(5) of the EC Treaty, a legislative proposal on establishing the mutual recognition and enforcement of authentic acts;<br /><br /><br />3. Stresses that recognition may not result in giving a foreign act greater effect than a national act would have;<br /><br /><br />4. Asks that the Regulation requested apply to all authentic acts on civil and commercial matters except those that relate to property and should or may be subject to entry or mention in a public register;<br /></div><br /><br /><br /><div align="justify">-------------<br /><br />3 Conclusion of Advocate-General La Pergola of 2 February 1999 in the aforementioned Unibank Case, point 7.<br /><br />4 See Article 22, points 1 and 3 of Regulation (EC) No 44/2001.<br /></div><br /><br /><div align="justify"><br />…<strong><span style="font-size:130%;">ANNEX TO THE MOTION FOR A RESOLUTION: DETAILED RECOMMENDATIONS ON THE CONTENT OF THE PROPOSAL REQUESTED<br /><br /><br />…EXPLANATORY STATEMENT</span></strong><br /><br /><br /><strong><span style="font-size:130%;">I. Background points</span></strong><br /><br /><br />Europe is growing and Europeans are required to be more and more mobile within this area whose borders are constantly expanding. The movement of citizens within the European Union is, however, impeded by problems with the movement of authentic acts. <strong><span style="font-size:130%;">The concept of the authentic act exists in most Member States. Member States on the European continent with a civil law jurisdiction have a two-pillar system.</span></strong> <strong><span style="font-size:180%;color:#ff0000;">In contrast to countries with Anglo-Saxon and Scandinavian laws, the State is <em>not just</em> involved ex post as regards judicial decisions ("the administration of contentious justice"), but submits legal acts with major consequences in terms of personal or property rights to mandatory preventive scrutiny of their legality through authentication of the legal act by a public official or public authority ("administration of preventive justice"; "voluntary jurisdiction").</span></strong> <strong><span style="font-size:180%;">The administration of preventive justice is thus separate from contentious justice</span></strong>. <strong><span style="font-size:180%;"><span style="color:#ff0000;">The authentic act is intended to avert future litigation relating to the basic legal act</span> whilst making it easier for the judge to take decisions in the case of legal proceedings by virtue of the binding probative value attached to the authentic act.<br /></span></strong><br />-------------------------------------------------------------------------------------------------<br /></div><br /><br /><br /><div align="justify"><a href="http://european-tax-adviser.com/wordpress/wp-content/uploads/2008/11/plr_04_08.pdf">http://european-tax-adviser.com/wordpress/wp-content/uploads/2008/11/plr_04_08.pdf</a><br /><br /><strong><span style="font-size:130%;">Professional Law Report<br /></span></strong><br /><br />Confédération Fiscale Européenne (CFE)<br /><br /><br />5 November - 2008 / Edition 4<br /><br /><br />…EUROPEAN COMMISSION<br /><br /><br />Commission calls on notaries to work towards building “European legal area”<br /><br /><br /><em><strong>On 11 September, in Warsaw, at the opening of the 2nd Congress of EU Civil Law Notaries (CNUE),</strong></em> the European Commission invited all those in the law sector to play an active part in creating a true European area of justice. “<strong><span style="font-size:130%;">We need the practitioners that you are and the great European judicial tradition” to establish a European area of legal certainty, said European Justice Commissioner Jacques Barrot</span></strong> during the opening session. Nearly 800 legal representatives from 21 EU Member States and partner countries attended the Congress organised by the Conference of Notaries of the European Union (CNUE). All those taking part (politicians, professionals in the field and researchers) have been called upon to discuss the theme: “A European area of legal certainty: a value for citizens and families, an by the Conference of Notaries of the European Union (CNUE). All those taking part (politicians, professionals in the field and researchers) have been called upon to discuss the theme: <strong><span style="font-size:130%;">“A European area of legal certainty: a value for citizens and families, an opportunity for businesses”</span></strong>.<br /><br /><br />Although 8 million citizens reside in a Member State other than their own, “law does not move with those people”, Mr Barrot commented, leading in to his speech. “The legal obstacles to citizens’ mobility must be removed”, he said, <strong><span style="font-size:130%;">placing emphasis on the principle of mutual recognition of decisions and legal acts, which in his view are the “cornerstone” for developing the European area of justice.</span></strong> The Commissioner spoke of three workshops underway, which go to illustrate the construction of the European legal area and for which the European notary sector must make its contribution: inheritance, authentic acts and matrimonial regimes.<br /><br /><br /><strong>On the subject of inheritance, Mr Barrot announced his intention to present a legislative proposal during the first half of 2009 for finding solutions on applicable legislation and providing for the recognition of jurisdictional decisions</strong>. This should facilitate the 50-100 thousand transnational legacies each year within the EU. <strong>The proposal will also include the establishment of a European certificate of inheritance to facilitate proof of the identity of heirs to a legacy</strong>. Mr Barrot also stressed the role played by the European Network of Registers of Wills (ENRW), an initiative of the European notaries, which should lead to the interconnection of registers of wills from all Member States. Other work in progress is on authentic acts. According to Mr Barrot, this is “essential to give citizens greater legal security”. <strong><span style="font-size:130%;">He went on to add that “the authenticity of an act established by a public authority may be a very strong base for the European legal order”. The Commissioner has announced his intention to launch a Green Paper in 2009.</span></strong> <strong><span style="font-size:130%;">“‘The aim is to generalise and to promote the recognition of authentic acts”, he explained. </span></strong>“Hitherto, recognition has been done in a pragmatic way. What we now need is more horizontal reflection”, the Commissioner said. The last work that the Commission intends to tackle is that on matrimonial regimes. Some 2,5 million properties located in the EU are owned byspouses in Member States other than the Member States of which they are nationals. In this context, “division is a problem” when couples break up, Mr Barrot said, specifying that he will put forward a proposal during 2009. Once again, he pointed out that it was not a matter of harmonising material law but rather of harmonising the rules of a conflict in law proposal during 2009. In addition to these legislative proposals, the vice-president of the Commission spoke of other ways to increase confidence between professionals in the justice sector, in particular the European Judicial Network (EJN, see below) and e-Justice.<br /><br />-------------------------------------------------------------------------------------------------<br /><br /><a href="http://www.ecla.org/documents/Brussels%20Agenda%20-%20November%202008.pdf">http://www.ecla.org/documents/Brussels%20Agenda%20-%20November%202008.pdf</a><br /><br /><strong><span style="font-size:130%;">The Law Societies – Brussels Agenda Newsletter</span></strong><br /><br /><br />Nov. 1, 2008<br /><br /><br />…RECOGNITION AND ENFORCEMENT<br /><br /><br /><strong><span style="font-size:130%;">European Parliament proposes a European Authentic Act<br /></span></strong><br /><br /><strong><span style="font-size:130%;">The Legal Affairs Committee of the European Parliament has taken the initiative to propose a common system for the mutual recognition and enforcement of authentic acts around the EU.</span></strong> <strong><em><span style="font-size:130%;">Whilst not a formal legislative proposal, it is presented as a recommendation to the European Commission</span></em></strong>. The rapporteur, Manuel Medina Ortega MEP, outlines that such a system would make life easier for citizens and businesses, mainly through dispensing with the formalities on legalisation and apostilles and simplifying registration procedures. From the UK perspective however, this initiative throws up a number of problems. Not only does it fail to take into account analogous legal documents, such as deeds, but it is also heavily biased in favour of the civil law notarial system. The Committee is due to vote on the draft report on 4 November.<br /><br />-------------------------------------------------------------------------------------------------<br /><br /><a href="http://pr.euractiv.com/?q=system/files/CP-Conférence-Acte-authentique-06-10-08-en.pdf">http://pr.euractiv.com/?q=system/files/CP-Conférence-Acte-authentique-06-10-08-en.pdf</a><br /><br /><strong><span style="font-size:130%;">Mrs Dati: The Movement of Authentic Acts is “What Still Has to be Integrated in Europe”<br /></span></strong><br /><br />Press Release<br /><br /><br />Conseil des Notariats de l’Union Européenne<br />Council of the Notariats of the European Union<br /><br /><br />06 October 2008<br /><br /><br />The French Presidency of the Council of the European Union organised on Monday, 6 October, a colloquium on “the movement of authentic acts within the European judicial area”. The Council of the Notariats of the European Union (CNUE) welcomes the opportunity given to European institutions to launch a joint reflection and discussion with a view to enabling each citizen to enforce in another European Union State, without any additional procedure, the provisions set out in an authentic act executed by a civil law notary in one of the Member States.<br /><br /><br />The European civil law notaries who participated actively in the day’s work share with Mrs Rachida Dati , the French Minister of Justice, the idea that <strong><span style="font-size:130%;">this “reflection on the movement of authentic acts will help to advance the freedom to come and go within the European Union”.</span></strong> Moreover, they did not fail to note that, according to her, <strong><span style="font-size:180%;">“evoking authentic acts means talking about everyone’s everyday life, it means taking stock of what remains to be integrated in Europe”.<br /></span></strong><br /><br />Europe’s civil law notaries, as stakeholders in the construction of judicial Europe, wish to underscore that while physical frontiers have come down, far too often judicial frontiers still continue to exist, requiring complex and long procedures which vary from one Member State to another for the enforcement of agreements executed by civil law notaries as law officials.<br /><br /><br />Thus, in the framework of the debates during this colloquium, Mr Juan Bolás Alfonso, President of the CNUE, presented an update on the work carried out by Europe’s civil law notaries on this subject and put forward his proposals for a proposed European authentic act. <em><strong>To date, a sectoral approach has been favoured, involving different instruments and types of procedures. However, the absence of harmonisation may be prejudicial for European citizens and economic actors, for whom improving the movement of authentic acts would assure the increased certainty of transactions</strong></em>. That is why, for the sake of simplicity and efficiency, the <strong><span style="font-size:130%;">CNUE is in favour of a more horizontal approach, leading to the mutual recognition of authentic acts in Europe</span></strong>. The expected benefits of a Community initiative along these lines would be threefold for citizens and businesses: such a system would save time, cut costs and simplify procedures.<br /><br /><br />The CNUE welcomes the fact that the exchanges during this colloquium enabled representatives of the European Parliament and the European Commission, including among others Mr Giuseppe Gargani, Chairman of the European Parliament’s Committee on Legal Affairs, Mr Manuel Medina Ortega, a Spanish MEP and rapporteur on this subject to the Parliament and Mr Francisco Fonseca Morillo, Director of the Commission’s DG JFS, to debate the basis on which such a system of mutual recognition could be implemented.<br /><br /><br />Finally, the CNUE notes with satisfaction that in closing the day’s work, Mr Jacques Barrot, European Commissioner with responsibility for Justice, Freedom and Security, once again declared his support for integrating such a provision in the Community’s body of legislation, as he had done in Warsaw, <strong><span style="font-size:130%;">at the Congress of European Union Civil Law Notaries</span></strong> when he had <strong><span style="font-size:130%;">announced on 11 September last that a “Green Paper” on this subject would be launched shortly</span></strong>.<br /><br />-------------------------------------------------------------------------------------------------<br /><br /><a href="http://blog.doingbusiness.org/2008/02/eu-executive-re.html">http://blog.doingbusiness.org/2008/02/eu-executive-re.html</a><br /></div><br /><br /><br /><br /><div align="justify"><strong><span style="font-size:130%;">EU Executive to Shake up Notaries Services<br /></span></strong><br /><br />Doing Business<br /><br /><br />Feb. 19, 2008<br /><br /><br />Last week, the European Commission (EC) published a landmark study by the Centre of European Law and Politics at Bremen University. Legal fees are a small fraction – between 0.34% and 2.94%- of an average real estate transaction, but vary widely across EU member states.<br /><br /><br /><strong><span style="font-size:180%;">[</span><span style="font-size:130%;">See: Christoph U. Schmid, Steffen Sebastian, Gabriel S. Lee, Marcel Fink, and Iain Paterson, Study COMP/2006/D3/003 <em>Conveyancing Services Market</em> (Dec. 2007)</span> at: </strong><a href="http://ec.europa.eu/competition/sectors/professional_services/studies/csm_study_complete.pdf"><strong>http://ec.europa.eu/competition/sectors/professional_services/studies/csm_study_complete.pdf</strong></a><strong> (“in August 2006 DG Competition commissioned the present comparative study, integrating a legal and an economic perspective, on professional and related regulation and its impact on the efficiency and performance of the conveyancing services market. 21 countries are surveyed in the study: Austria, Belgium, the Czech Republic, Denmark, England and Wales, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Luxembourg, the Netherlands, Poland, Portugal, Scotland, Slovakia, Slovenia, Spain and Sweden. In order to compare and evaluate the different regulatory systems under which legal conveyancing services are provided in the 21 EU countries examined, we categorized the systems into four distinct regulatory models for the purposes of this study: The traditional, highly regulated Latin notary system, which reflects the public office characterisation of notarial activities; The deregulated Dutch notary system, which reflects a more modern vision of the notary as a private entrepreneur fulfilling public tasks; The lawyer system existing in the UK and Ireland, the Czech Republic and Slovakia and – to a lesser extent – also in Austria (where both notaries and lawyers have a high presence on the market); and The Scandinavian licensed real estate agent system under which real estate agents provide legal services, too.)<span style="font-size:180%;">].</span></strong><br /><br /><br />Among other interesting results, this study shows that <strong><span style="font-size:130%;">I would be paying three times more in legal fees in France than in the Netherlands for the same €250,000 house</span></strong>. Why would my French friends be willing to pay more for the same service?<br /><br /><br /><strong><span style="font-size:130%;">The European Commission is not opposed to all regulation of professional services if there are legitimate arguments for it,</span></strong> e.g. consumer protection. But it requires a strict proportionality test to justify a more restrictive regulation. Not meeting this test could jeopardize the basics of the European single market.<br /><br /><br />The European Commission has adopted a step-by-step approach to find an appropriate and viable solution. It has identified the conveyancing services--services associated with buying and selling land and buildings--as a priority sector for reform because of its potential economic impact. The EU Real Estate Market is big. Its turnover is around €1,800 billion (2005), or 16% of EU27 GDP, and the corresponding turnover in legal services is around €16.7 billion (2005).<br /><br /><br />The study compares and evaluates the regulatory systems of conveyancing services for 21 countries from a juridical and economic perspective. They are divided into four categories: (a) the Latin notary system, the traditional highly regulated system in place in most of the EU countries such as Spain, Portugal, France, Italy, Belgium, Germany and Austria; (b) the Dutch notary system, the deregulated version of the previous model which reflects a “more modern vision of the notary”; (c) the Lawyer system, existing in the UK, Ireland, Czech Republic and Slovakia; (d) the Scandinavian licensed real estate agent system, under which real estate agents also provide legal services.<br /><br /><br />The economic part of the study shows that the highly regulated Latin notary system results in higher fees. There is nothing new in this first conclusion. Experts justify the monopoly that notaries enjoy to authenticate legal transactions and fixed fees on grounds of quality of service and legal certainty of the transaction.<br /><br /><br />However, the European Commission study finds that these arguments cannot be supported empirically. On the contrary, it points out that less regulated countries seem to perform better in terms of quality and legal certainty, with Germany being the exception. This second conclusion is striking. The methodology of this study will probably be contested, but the EU executive provides evidence to back its pro-reform arguments.<br /><br /><br />The EC study puts forward an overhaul of the Latin notary system because current regulation, especially the use of fixed fee scales and absolute restrictions on entry, e.g. numerous clauses, are having an overall negative effect on consumer welfare. The study also raises the question on whether the conveyancing market should be opened up to lawyers and other licensed professionals, including real estate agents.<br /><br /><br />These suggested reforms might have a positive impact on the Doing Business ranking of the countries that implement them by easing the process of registering property. The Doing Business Property team will be monitoring any initiative stemming from this study and invites everyone to send us related information.<br /><br />-------------------------------------------------------------------------------------------------<br /><br /><a href="http://www.notaries.org.uk/articles/articles/notaires_in_france.html">http://www.notaries.org.uk/articles/articles/notaires_in_france.html</a><br /><br /><strong><span style="font-size:130%;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjVyR_gsqg7R8tV2KAN9RVWueV6J6yLHxRSLzSs05cw5pFfXKW20elrTNbmKdTZS01gwO0UKV_7OEjqSz1lwL1_QnxP_qSjRHn-m8AReMbNv18jsT-dGB4DQ-5owC8oMGtJmzjQNFRmSXSV/s1600-h/chambre+des+notaires+de+paris.jpg"><img id="BLOGGER_PHOTO_ID_5288379637198279618" style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 270px; CURSOR: hand; HEIGHT: 301px" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjVyR_gsqg7R8tV2KAN9RVWueV6J6yLHxRSLzSs05cw5pFfXKW20elrTNbmKdTZS01gwO0UKV_7OEjqSz1lwL1_QnxP_qSjRHn-m8AReMbNv18jsT-dGB4DQ-5owC8oMGtJmzjQNFRmSXSV/s400/chambre+des+notaires+de+paris.jpg" border="0" /></a>NOTAIRES IN FRANCE: An Unassailable Profession. Or are They?</span></strong><br /><br /><br />By <a href="mailto:gisela@giselashaw.com">PROF. GISELA SHAW</a><br /><br /><br />Notary Talk of England and Wales<br /><br /><br />Author's Version (Taylor & Francis, 2007)<br /><br /><br />Definitive Version – (International Journal of the Legal Profession, Volume 13 Issue 3, November 2006)<br /><br /><br /><strong><span style="font-size:130%;">The Challenge</span></strong> </div><br /><div align="justify"><br />Professions in the Western World generally have traditionally thrived on the privilege of some degree of freedom from competition and regulatory autonomy within certain defined parts of the professional services market, having persuaded their government that reserved areas of activity and professional independence are essential to a well-functioning society. Sociologists of the professions have offered varying explanations of professions’ origin, role, impact, and future. Following early emphasis by scholars on the civilising effect of professions’ high ethical standards of self-regulation (Durkheim, 1992; Parsons, 1954), the notion of market domination based on exclusionary strategies vis-à-vis other professional groups became a prime focus of sociologists’ attention from the 1960s (Larson, 1977; Abel and Lewis, 1988). From the 1970s, a number of American and British sociologists, the main interlocutors in the debate, became aware of their Anglo-American bias. A new and more sophisticated approach emerged which took account of the role of history in the evolution and nature of professions, of their relations with their respective states, as well as of issues of social and political status and power. This for the first time opened up perspectives that could fruitfully be applied to professions in continental Europe. (Johnson, 1972; Rueschemeyer, 1973; Geison, 1984; Halliday, 1987; Siegrist, 1988; Abel, 1989; Torstendahl & Burrage, 1990; Burrage & Torstendahl, 1990; McClelland, 1991; Jarausch, 1990; Burrage, 1996; Karpik, 1995; Malatesta, 1995; Halliday & Karpik, 1997). </div><br /><br /><div align="justify"><strong><span style="font-size:180%;">The profession of notary, although the oldest and arguably most venerable of the legal professions in Europe as well as of continuing importance within Continental European civil law systems</span></strong>, has featured only marginally, if at all, in any of these debates. Exceptions are Ezra Suleiman’s remarkable book on notaires in France (1987), as well as a few shorter studies of the profession in Germany (Shaw, 1997; 2003a; 2003b; 2004; 2006) , Italy (Santoro, 1995), England and Wales (Shaw, 2000; forthc.), and Central Europe (Shaw, 2004). Suleiman focuses on the historically grown and firmly established intertwining of the profession’s corporate interests with those of the French state and of a number of French institutions. He interprets <em><strong><span style="font-size:130%;">the French notariat’s resilience and ability to survive and even thrive on serious crises as a result of notaires’ fundamentally ambiguous status as providers of both public and private legal services: <span style="color:#ff0000;">as public servants, they</span> <span style="color:#ff0000;">enjoy government protection and a statutory monopoly</span><span style="color:#ff0000;">;</span> <span style="color:#000099;">as members of a liberal profession they are free, in fact encouraged by their government, to engage in profit-making activities in the open market</span>.</span></strong></em> This dual position, Suleiman argues, provides them with wide scope for political negotiation and the option to play either card as the need arises. </div><br /><br /><div align="justify">Although most notariats in civil law countries to some degree share this dual nature, <strong><span style="font-size:130%;">the tension between the profession’s two functions and its effect on its socio-political and economic standing are far more pronounced in France than elsewhere</span></strong>. <strong><span style="font-size:130%;color:#ff0000;">Notaries in France enjoy a uniquely close relationship with the state (represented by the Ministry of Justice), an exceptionally high degree of professional autonomy, an uncommonly wide range of privileges, and the built-in potential for enviable levels of prosperity</span></strong>. (For details see Moreau, 1989; Moreau, 1999) Social and political status and the striving for self-regulation have been a major factor in determining the notariat’s political strategies. Economic prosperity, on the other hand, has merely been a highly welcome by-product, not the result of a corporate strategy to expand the profession’s share of the legal services market. </div><br /><br /><div align="justify">On the contrary, <em><strong><span style="font-size:130%;">the last fifty years have seen a process of contraction and concentration on reserved activities, particularly on the property market, leaving areas of activity in the open market into which they might have expanded to their competitors without a struggle. This approach is not dissimilar to that of solicitors in England prior to the abolition of their conveyancing monopoly</span></strong></em>. It was only the impact of deregulation under Margaret Thatcher’s government which forced them to abandon their preoccupation with status and honour and operate in the open market under a strengthened state and market control (Burrage, 1996), a process which is now being rounded off in the wake of the Clementi report of 2002. At the time Richard Abel (1989), from a background of close familiarity with developments in the American legal services market, accurately projected as likely next steps: increasing concentration and mergers, elimination of smaller units, loss of traditional markets, greater reliance on and competition for qualified staff, multidisciplinary partnerships, specialisation, efforts to stimulate demand, shift towards direct employment, loss of professional unity and autonomy and, at worst, loss of identity. Abel also sounded a note of caution regarding the risks involved in giving market forces free reign and losing sight of the fundamentally normative quality of legal work. </div><br /><br /><div align="justify">Almost a decade later, Michael Burrage (1996) broadly welcomed these developments as the transformation of a ‘gentlemen’s profession’ into a ‘public profession’, a move towards greater market-orientation and competitiveness, more openness and accountability to the public, and freedom to adopt a more independent and even adversarial posture vis-à-vis the state. The fate of solicitors following the loss of their conveyancing monopoly may seem worlds away from the situation of notaires in France, where no government has seriously considered removing the barriers shielding them from competition by other domestic professions, and where enlightened self-interest on both sides continues to provide a powerful incentive to reach mutually acceptable solutions to any problems arising, making the position of French notaires appear almost unassailable. </div><br /><br /><div align="justify">However, <span style="color:#ff0000;"><strong><span style="font-size:130%;">in recent years one essential premise has changed: the fate of the notarial profession has ceased to be determined purely within a national framework. Economic globalisation and the liberalising initiatives of the European Commission have introduced a new factor into the equation, moving the problem, or at least a crucial aspect of it, to a higher and previously unknown level</span></strong>.</span> </div><br /><br /><div align="justify"><strong><em>Two major directives, the Directive on the Recognition of Professional Qualifications (Directive 2005/36/EC adopted 7 September 2005) and the Directive on Services in the Internal Market (expected to come into effect by the end of 2006), both aiming to open the services market in Europe, have been looming over the profession, threatening to wipe out any protection from competition</em></strong>. By a hair’s breadth <strong><span style="font-size:180%;color:#ff0000;"><em>notaries</em>, as opposed to other lawyers, ultimately escaped application of the Professional Qualifications Directive</span></strong>, as, after protracted tough negotiations, professions connected, even occasionally, with the exercise of official authority, were excluded from its scope. <strong><span style="font-size:180%;color:#ff0000;">As for the Services Directive, it now looks as if, once again <em>notaries</em> may be able to breathe a sigh of relief as <span style="color:#000099;">specific activities undertaken by them on behalf of national governments</span> are likely to be excluded</span></strong>. </div><br /><br /><div align="justify"><strong><span style="font-size:180%;">However</span></strong>, even if French notaires are not directly affected by these reforms in their core work, <strong><span style="font-size:180%;">the impact on any of their operations in the open market is likely to be considerable</span></strong>, as the world around this tiny profession is swiftly moving into a new era of intensified competition at all levels. In addition, should the housing market take a downturn or should the French government ever decide to restructure or, indeed, abolish the notarial monopoly in this area, the profession of notary would be at serious risk of suffering the fate of other small groups of lawyers in the past who were easily absorbed by either advocate or accountant firms. </div><br /><br /><div align="justify">For the first time in the profession’s history, therefore, old corporatist ties and intertwinings of interests of administration, government, banks and profession can no longer guarantee its continued survival and prosperity. <strong><span style="font-size:180%;color:#ff0000;">Competitors at home and abroad are getting ready to pounce</span></strong>, and fractures within the profession itself are beginning to appear, with some groups (still a minority) embracing with enthusiasm the prospect of a freer market and calling for a more pragmatic approach, while others (still the majority) are unwilling or unable or both to consider the possibility of radical change and insisting on the immutability of the status quo. Any assessment of the profession’s actual and possible responses to this novel challenge requires insight into its current situation and workings. This is what this paper attempts to provide. It does so by focusing on selected key features of the profession today, and analysing them in the light of concepts from the sociology of the professions sketched out above, most particularly the role of history, the relationship between profession and state, and the tension between professional aspirations for socio-political status and the need to face up to competition in the open market. </div><br /><br /><div align="justify">As up-to-date facts and figures on notaires are not easily found and sociological analyses of the French notariat do not exist (apart from Suleiman’s very specifically focused study of 1987), the factual base of my argument relies mainly on information available from the profession’s journals and websites, as well as a number of personal semi-structured and informal interviews with professional leaders conducted since autumn 2004. The journals in question are: Conseil supérieur du Notariat, Notaires. Vie professionnelle; Assemblée de Liaison des notaires de France, LejournAL (prior to 2004: Liaison); Mouvement Jeune notariat, Mouvement Jeune notariat; also associated with Mouvement Jeune notariat: Revue Pompadour Notariat 2000. Revue indépendante d’informations et d’opinions. </div><br /><br /><div align="justify">The reports of the annual conferences of the Assemblée de Liaison des notaires de France provide a great deal of carefully researched information on specific topics. The same is true of the reports of the annual conferences of the Mouvement Jeune notariat, which are available on the internet (<a href="http://www.mjn.fr/">http://www.mjn.fr/</a>). Specific references will only be referred to in exceptional cases to avoid an overload of notes. I am grateful to those who have been willing to give up their time for interviews: three members of the executive of the Conseil supérieur du Notariat, among them a recent President who had also recently been President of the European Union of Notariats (CNUE); the President of the Mouvement Jeune notariat as well as a number of the group’s most active members, including notaires assistants and notaires stagiaires; the Director General of the CRIDON de Paris; key representatives of the DG Competition and DG Internal Market of the European Commission in Brussels; the Head of the CNUE and one of her colleagues in Brussels. I also want to express my appreciation to the Head of the Documentation and Archival services at the Conseil supérieur who has greatly assisted my search for information.<br /></div><br /><div align="justify"><br /><strong><span style="font-size:130%;">Profession and state<br /></span></strong></div><div align="justify"> </div><div align="justify"> </div><div align="justify">Having been abolished in 1791 as an institution of the hated ancien régime, the <strong><span style="font-size:180%;">French notariat</span></strong> was revived in 1803 in a new guise by Napoleon, as part of his ambition to ensure political and economic stability. Anciens notaires were replaced by <strong><span style="font-size:180%;">notaires publics - the model for (and often envy of) civil law notaries in the rest of continental Europe</span></strong>. A major political victory was won by the French profession when in 1816 their former status as officiers ministériels and the accompanying droit de présentation (essentially the right to choose their own successor and to treat their office as part of their personal assets) was reintroduced by the backdoor, a restaurational measure that sits uncomfortably with the otherwise modernised professional profile and has remained a bone of contention ever since. </div><br /><br /><div align="justify"><strong><span style="font-size:180%;"><span style="color:#ff0000;">Notaries are defined as public officers called upon to receive all acts and contracts to which parties have to or wish to give the character of authenticity.</span> <span style="color:#000099;">Their function is that of impartial arbiter, counsellor of individuals, businesses and collectives, and guarantor of the morality and legal security of contractual relationships - a corner-stone of any civil law system</span></span></strong>. As members of a liberal profession they are in control of their own finances, practice and staff, as well as engaging in activities in the open market. As Suleiman’s masterful study shows, the relationship between the notarial corporation and the French state has been a close, but multifaceted one, a mixture of hostility and complicity. </div><br /><br /><div align="justify"><em><strong><span style="font-size:130%;">Generally speaking, the Ministry of Justice which legally exercises tutelle over the profession has allowed its relationship with the profession to acquire a symbiotic character and to act in a generally protective role, as its actual control over the profession is limited to confirming notaires to the office they have purchased</span></strong></em>. No annual meeting of the profession passes without the Minister of Justice and Keeper of the Seals being reminded by professional leaders of his duty to promote the profession’s well-being, and the Minister reassuring them of his faith in their important contribution to society and his unwavering continued support. Regular meetings in the Ministry are set up by the leadership, often with the aim of suggesting and preparing the ground for new legislation they would like to be brought in. <em><strong>The Ministry of Justice’s support is needed particularly vis-à-vis the Ministry of Finance that keeps a close eye on and has to approve any changes in the notarial fees system, the tarif.</strong></em> </div><br /><br /><div align="justify"><strong><span style="font-size:130%;">The state benefits in a number of very tangible ways from the activity of notaires</span></strong>. </div><br /><br /><div align="justify"><em><strong><span style="font-size:130%;">Firstly</span></strong></em>, <strong><span style="font-size:130%;color:#ff0000;">notaires calculate and collect state taxes and legal charges (now also including VAT) for each and every transaction performed</span></strong>. The profession views this arrangement with mixed feelings: on the one hand, it represents an unpaid additional responsibility and, more importantly in today’s climate, a source of suspicion on the part of the public at large which tends to assume that the sums collected by the notaires all flow into their own pockets (in fact, only around 20 per cent do); on the other hand, it can and has come in extremely handy as an invaluable bargaining chip in negotiations with the government on other issues. </div><br /><br /><div align="justify"><span style="font-size:130%;"><em><strong>Secondly</strong></em>,</span> <strong><span style="font-size:130%;"><span style="color:#ff0000;">the state also benefits from the institution of the Caisse des Dépôts et Consignations</span>, a public institution created</span></strong> at the initiative of a member of the profession, Duclos Dufresnoy, <strong><span style="font-size:130%;">through which every notarial office’s income and expenditure has to be channelled, with the exception of rural areas</span></strong> where the Caisse de Crédit Agricole may also be used. Capital accumulated by the former is used for state-directed projects of public interest, while capital flowing into the latter serves to support agriculture.<br /></div><br /><div align="justify"><br /><strong><span style="font-size:130%;">Professional organisation<br /></span></strong></div><br /><div align="justify"><br /><em><strong><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhFU7r0rvekjjIm2RLZnYlnUJ42V7hQYupY9rQHwtv_3gW0zGKlyjHE92rrdhuZjmgzm2YkaevH3UhNHgDBODViHwXjdZVuTMQ0vjVC6JzmJ0qRxbueHL-Y-b_rLib1canxZK7Pyx0Y2Mlh/s1600-h/conseil+superieur+national+du+notariat+logo.jpg"><img id="BLOGGER_PHOTO_ID_5288381523924381218" style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 150px; CURSOR: hand; HEIGHT: 127px" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhFU7r0rvekjjIm2RLZnYlnUJ42V7hQYupY9rQHwtv_3gW0zGKlyjHE92rrdhuZjmgzm2YkaevH3UhNHgDBODViHwXjdZVuTMQ0vjVC6JzmJ0qRxbueHL-Y-b_rLib1canxZK7Pyx0Y2Mlh/s320/conseil+superieur+national+du+notariat+logo.jpg" border="0" /></a>Representing the French notariat’s interests vis-à-vis the government, the public, and, increasingly, the international community</strong></em> is the task of <em><strong>its national organisation</strong></em>, <strong><span style="font-size:130%;">the Conseil supérieur national du Notariat (CSN),</span></strong> established by statute in 1945 - suprisingly late, given the country’s otherwise essentially centralised structure, but still relatively early in the light of the fact that French avocats remained without a national body to represent the totality of the profession’s membership until appropriate legislation was passed in 1990. Funded entirely by the profession itself, <strong><em>the large and bureaucratic National Council enjoys remarkable economic and political clout</em></strong>, appropriately reflected in its recent move from modest rented premises in the 8th arrondissement to its own large purpose-built edifice in the 7th arrondissement, covering 6000 square metres and presented to the profession as a long-overdue symbol of its national standing, as well as a prudent collective investment in its future, in spite of occasional grumbles from the grass-roots. </div><br /><br /><div align="justify">Considerable efforts have gone into strengthening the CSN’s position, a strategy much helped by the membership’s awareness of real threats to the profession both from within and from without, and an acceptance of the need to improve their services to society and strengthen the profession’s solidarity. 33 regional councils have, since 1945, been charged with functions relating to representation, training and communication, a brief to which have recently been added disciplinary powers, which has deprived the 92 departmental (or, in some instances, interdepartmental) chambers of what has traditionally been their core function. Both of these institutional layers have old historical roots. </div><br /><br /><div align="justify"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiS9tivX_FxFaZKsFNCwCZkA3gahDlRlxgdhD74PZ35-DO9TQu8ufEjEzvtE4zt7Dc4BfE8Fbw4TjDh0gQLvj9fzWBTieJJIfWN8O_8dTHLEjvEicYES5Cykgc763JQaUvLY3Zt_WxfdzZq/s1600-h/chambre+des+notaires+de+paris+logo.jpg"><img id="BLOGGER_PHOTO_ID_5288380543234016098" style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 320px; CURSOR: hand; HEIGHT: 83px" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiS9tivX_FxFaZKsFNCwCZkA3gahDlRlxgdhD74PZ35-DO9TQu8ufEjEzvtE4zt7Dc4BfE8Fbw4TjDh0gQLvj9fzWBTieJJIfWN8O_8dTHLEjvEicYES5Cykgc763JQaUvLY3Zt_WxfdzZq/s320/chambre+des+notaires+de+paris+logo.jpg" border="0" /></a>This is particularly true of the exclusive and powerful <strong><span style="font-size:130%;">Chambre des Notaires de Paris</span></strong> which combines interdepartmental and regional responsibilities. Its Parisian headquarters’ façade proudly proclaims a thousand-year history and long-standing closeness to government and courts - closeness, that is, in all senses, including geography. In this venerable and proud institution, concern with social status and political power is tangibly in evidence, as is its claim to be the (historically legitimated) representative of the profession at large. <em><strong>Along with status has come economic strength</strong></em>. In 2005, the Chamber’s membership of 500 (5.9% of the country’s total) had 220 offices (7.6% of the total), employed 5000 staff (10% of the total) and had an annual turnover of 600 mill. euro (10.3% of the country’s total). Compared to their rivals, the avocats, almost 40% of whom (2002: 15,541 of a total of 39,454) are concentrated in Paris, the notarial group in Paris looks modest enough, but this is due to the formula by which the Ministry of Justice creates new offices and does not adequately reflect the economic and political clout of Parisian notaires. <em><strong>Although the Chambre des Notaires de Paris initially found it difficult to accept the creation of a national body, the two organisations have since succeeded in gradually settling into a mutually beneficial relationship</strong></em>, with the Paris notaries being granted special privileges and considerable say in national decision-making, and the National Council benefiting from the Parisians’ centuries-old experience and political influence. </div><br /><br /><div align="justify">A highly original professional organisation, <strong><span style="font-size:130%;">the Assemblée de Liaison des notaires de France</span></strong>, provides a direct channel of both ascending and descending communication, a bridge, between the national body and the general membership. A<em><strong> voluntary body without statutory base, it was initiated in 1950 by the 49th annual congress of French notaries in La Baule as the profession’s ‘parliament’, a forum for elected grass-roots representatives to debate and formulate proposals to be submitted to the National Council, as well as a platform for direct communication between the council and grass-roots members</strong></em>. All key figures of the notarial establishment are invited to the annual two-and-a-half day themed conference in early December at the Palais des Congrès in Paris: members of the CSN, presidents of departmental chambers and regional councils, and delegates of notarial trade unions and professional associations. One session is specially set aside for the CSN’s executive committee to respond to questions put to them from the floor (admittedly, some of these having been subjected to prior screening). On the last day, a series of proposals are voted upon and, once passed, transmitted to the CSN for discussion and decision by one of its standing committees, half of whose membership are, in fact, elected representatives of the Assemblée de Liaison. A conference report is published every year, complementing the Assemblée’s monthly journal Le journAL. </div><br /><br /><div align="justify"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjkSh3wgFPPhjjAtK94WzTfY-6cwKbxZe_iMooUFXnmDLaeJg96xD0wSR7_zU30nn9qSs4Cf7s1pSNZaAs3J2WWRXeW87Hdodi7_tpPaCEf10qX6Oqyf1DmghBgniA2t0qmpAcIjWfqO_In/s1600-h/mouvement+jeune+notariat+logo.gif"><img id="BLOGGER_PHOTO_ID_5288390707206089378" style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 170px; CURSOR: hand; HEIGHT: 87px" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjkSh3wgFPPhjjAtK94WzTfY-6cwKbxZe_iMooUFXnmDLaeJg96xD0wSR7_zU30nn9qSs4Cf7s1pSNZaAs3J2WWRXeW87Hdodi7_tpPaCEf10qX6Oqyf1DmghBgniA2t0qmpAcIjWfqO_In/s320/mouvement+jeune+notariat+logo.gif" border="0" /></a>The other voluntary organisation of note is the <strong><span style="font-size:130%;">Mouvement Jeune notariat (MJN)</span></strong>, <em><strong>a loosely organised group founded in 1960 by Louis Reillier (1913-99), an avant-garde and idealistic notaire in Pompadour, Corrèze, who was determined to modernise and reinvigorate the profession both economically and socially</strong></em>. This group, which still adheres to its self-defined brief to be inclusive, open and future-orientated (un notariat sans frontières), has maintained a refreshingly critical stance and provided a fertile breeding ground for novel ideas, many of which have been skilfully adopted by the CSN once they had proved successful. The same is true of the deliberately unconventional and occasionally mildly provocative journal entitled Notariat2000. Revue indépendante d’informations et d’opinions, also founded by Louis Reillier. The group has a publicly accessible website, and organises annual themed congresses which are increasingly held abroad (including China in 2005). (see www.mjn.fr) Comprehensive published reports consist of carefully orchestrated contributions intended to stimulate debate and move the profession forward. A deliberately provocative step which raised a lot of hackles with the National Council has been the election in 2004 of a President from a country other than France, the Belgian notary Olivier Jamar. <em><strong>A prime example of a successful MJN initiative has been the annual day at the Palais des Congrès at the Porte Maillot in Paris, where notaires gather from all over the country to offer free advice to anyone who wishes to come along</strong></em> - a project the CSN initially refused to be associated with, let alone support, and which has now become one of its major marketing tools. Similarly, <em><strong>the MJN provided the ideas for the so-called Université du Notariat, an annual week of lectures, seminars and discussions organised near Paris - now a highlight in the professional calendar of events</strong></em>. Finally, an annual cycling tournament of notaries projects the image of a profession that is young, energetic and forward-looking. <em><strong>This group and its publications represent a kind of barometer of the progressive and liberal forces within the profession</strong></em>.<br /></div><div align="justify"> </div><div align="justify"><br /><strong><span style="font-size:130%;">Image issues</span></strong><br /></div><div align="justify"><br /><em><strong>Concern with the profession’s traditional public image - somewhat dusty and archaic, patriarchal, elderly, focused on self-enrichment (and, which goes without saying, white)</strong></em> - is a relatively recent but now increasingly pressing item on the National Council’s agenda, as consumers’ views are recognised as an important factor in the profession’s justification of its role in society. Considerable efforts have been made by the CSN to project a more positive image of a profession keen to meet the needs of individuals, families and companies, and uniquely placed to do so on account of a long established basis of trust and the legal security provided by its authentic acts. <em><strong>Occasional highly critical media reports including allegations of greed and financial irregularities have made it hard to get their message across</strong></em>. </div><br /><br /><div align="justify">Purely statistically, <em><strong>the average age of French notaries (49 in 2005), although gradually going down, is relatively high compared to for instance that of their main competitors, the avocats (44.6 (men)/ 38.9 (women) in 2002).</strong></em> In time, this problem will be diffused, as by 2014, 35 per cent of those practising today (members of the post-war baby boom generation) will have retired - a unique opportunity for rejuvenation from the reservoir of some 4,000 notaires assistants waiting for appointments. <em><strong>Three major obstacles stand in the way of a smooth hand-over to a younger generation: firstly, the rampant inflation in the price of offices demanded by retiring members; secondly, the reluctance of existing notarial firms to appoint additional partners - an option open to French notarial firms (as opposed to their colleagues in other countries), as the numerus clausus applies only to offices, not to the notaries working within them; and thirdly, the profession leadership’s reluctance to push for the creation of additional offices</strong></em>. The national body has adopted various strategies in order to ease the situation. It is running a campaign to remind retiring notaires that the notarial office is not primarily a commercial enterprise and that prices demanded for their offices should be kept at more modest levels - an undertaking which is unlikely to bear much fruit. The CSN is also considering forcing notarial firms to take on additional notaires associés if their annual income or number of acts exceed a certain maximum, but how precisely this can be done has yet to be revealed. The need to accelerate the process of appointing notaires has been formally acknowledged by the Ministry of Justice and the CSN, and will be acted upon by a reduction of the waiting period from currently 3 months to 5 weeks. And, finally, an undertaking has been given that the overall number of offices is to be steadily increased by about 2000 over the next 10 years to reach a total of 10,000. </div><br /><br /><div align="justify"><em><strong>The profession’s predominantly male profile represents another potential image problem</strong></em>. Women were only legally admitted to the notariat in 1948. Early female pioneers were mostly widows and daughters of notaries killed in the war, and for quite some time the number of women in the profession remained extremely modest. (1968: 36; 1973: 73; 1980: 130; 1999: 1000 (=13.46% of total)) In Paris, the first two female notaires were appointed in 1977. Tangible change set in from the 1980s, with larger numbers entering the profession and the first women being appointed to higher office. <em><strong>Yet, even today over three quarters of French notaires are men, with women making up 21%.</strong></em> Ironically, by West European standards generally, even 21% represents something of an achievement, as there are national notariats that do not even reach a female participation rate of 10 per cent Looked at more closely, though, <em><strong>the figure disguises a somewhat less favourable picture, as only 16% of independent notaries are women, while their share among employed notaries (notaires salariés) is 55%. Given that over half of today’s trainees are female and the percentage of women is significantly higher among younger notaries than among those over fifty, a certain degree of ‘trickling-up’ can be expected</strong></em>. But there is also evidence that the move to becoming an independent office-holder represents a hurdle of sufficient dimensions to deter many a female trainee from aspiring to this goal. Intriguingly, neither this fact nor the persisting gender-based inequalities of pay - <em><strong>female notaires salariés in Paris may take home up to 25% less than their male counterparts</strong></em> - appears to raise many eyebrows within the notarial establishment. On the contrary, the contrast with the strongly feminised bar (2002: 44.8%) was put forward in conversation with a representative of the CSN leadership as a plus (‘we don’t want to become like them!’). <em><strong>Generally, only modest concessions have been made to gender equality with the occasional appointment of a woman to the presidency of a departmental or regional chamber (the Paris Chamber elected its first female President in 2002).</strong></em> Since 1998, the otherwise male steering committee of the National Council has had one female member - a fact that is proudly quoted as unambiguous evidence of the profession’s commitment to the equality of women, accompanied by comments to the effect that women do not come forward as candidates as they simply lack in confidence. As for racial equality, this is a topic that has not yet been approached in any public form.<br /><br /><br /><strong><span style="font-size:130%;">Training<br /></span></strong><br /><br />Autonomy in the context of training has become central to the French notariat’s strategic planning. While traditionally anyone could step into his predecessor’s shoes without worrying much about formal qualifications, a university education became the norm from 1972 as an important part of a programme of reforms, after a thorough internal survey had provided evidence of a serious credibility crisis. The introduction of structured training offered a welcome opportunity to the national leadership to make its mark vis-à-vis more venerable regional and local organisations, while also diplomatically accommodating an impressive, and by international standards unusual range of alternatives dear to various subgroups within the profession. <em><strong>The bulk of those undergoing notarial training - some 500 a year - come through two routes: either the ‘professional route’ of a three-year degree in law, or the much more specialised and therefore less flexible ‘university route’ providing for a three-year notarial diploma.</strong></em> <em><strong>In both cases, a further three years of notarial theory and practice are required.</strong></em> <strong>But it is also possible for jurists from other fields with only one year’s notarial experience to enter the profession sideways</strong> (some 5% of applicants a year), or even for office clerks without a university degree but with significant practical specialised experience and some notarial theoretical training to rise to a post via internal promotion - traditionally a very common occurrence, now relatively rare. </div><br /><br /><div align="justify">Finally, <strong><span style="font-size:180%;color:#ff0000;"><span style="color:#000099;">notaries from other countries may, in theory, be admitted after passing an aptitude test</span><span style="color:#000099;">,</span> although in practice this route is still blocked by the nationality requirement which operates</span></strong><strong><span style="font-size:180%;color:#ff0000;"> for notaires in France and, indeed, in all but three European civil law countries</span></strong>. (<em><strong><span style="font-size:130%;">Spain, Portugal and Italy gave in to pressure from the European Commission in 2002 and undertook to abolish their nationality requirement</span></strong></em>, <em><strong><span style="font-size:130%;">although this undertaking has so far remained without any practical consequences. </span></strong></em></div><br /><br /><div align="justify">From the 1970s, the profession’s leadership has worked hard to acquire and retain a central role in the funding, design and delivery of both initial and continuing notarial training, occasionally in competition with regions. Their collective achievements are remarkable by any standard. Continuing training - to the regret of many still not obligatory - is offered by Regional Councils as well as at five training centres set up by the National Council, each of these specialising in a major area of notarial activity [4], as well as at the so-called Université du Notariat, the annual training programme organised by the National Council in Jouy-en-Josas near Paris. A very recent indication of the significance attributed by the National Council to the control of initial notarial training as well as to the government’s disinclination to go against their striving for autonomy in this area came with the political challenge to meet the Bologna criteria for higher education. A careful balance has been struck between accommodating the government’s wishes on the one hand and ensuring the profession’s continuing authority over the process on the other. <em><strong><span style="font-size:130%;">Negotiations with the Ministries of Justice and of Education have resulted in a compromise agreement: the structural framework of undergraduate diploma, master’s degree and doctorate will be introduced in return for an undertaking that the profession’s training autonomy will not be adversely affected and <span style="color:#000099;">the diplôme supérieur du notariat</span> will remain untouched</span></strong></em>. </div><br /><br /><div align="justify">Centralisation has proved out of the question in the context of the five autonomously funded and run regional centres for research, information and documentation (CRIDON) at Lyon, Paris, Lille, Bordeaux and Nantes, each of them taking great pride in their respective achievements. Created in the 1960s, they were set up to improve the quality of notarial services by providing ready access to information and advice, especially to those working in isolation in more remote parts of the country. So great has been their success that both Germany and Switzerland have used them as models for similar institutions of their own. The largest centres (Lyon and Paris) employ some 30 specialist consultants ready to answer any questions put to them by notaires in their specific regions (and only those). Cultural differences between regions were vividly described to me at the Paris CRIDON, for instance in terms of communication cultures: ‘Here in Paris everything gets written down and used and reused later: a note becomes a conference becomes a book. In Lyon and Bordeaux they talk to each other.’ As for recruitment cultures, Lyon, the oldest of the CRIDONs as well as the model for all others (established in 1962), was said to recruit lawyers with an established professional reputation ( ‘les gens installés’); in Paris consultants are hand-picked (‘The CRIDON is the Institut Pasteur.’): either young people who are given their first job and will rise to becoming university professors later, or specialist professionals head-hunted over a period of 18 to 24 months, who are experts of the ‘German’ rather than the ‘French’ kind (‘They must have answers in their heads rather than need books to find them.’); while the centre in Nantes was referred to rather unkindly as a ‘pension des Jésuits’. Calls for a co-ordination or even merger of the work of these five centres can occasionally be heard, but nobody would seriously expect more than marginal concessions in this direction.<br /><br /><br /><span style="font-size:130%;"><strong>Access</strong> </span><br /></div><br /><br /><div align="justify">The number and location of notarial offices is strictly controlled by the Minister of Justice and Keeper of the Seals, in consultation with the profession. <strong><em><span style="font-size:130%;">Candidates for office are proposed by chambers and normally accepted by the Minister without queries</span></em></strong>. </div><br /><br /><div align="justify"><strong><span style="font-size:180%;">[</span>Numerus Clausus means "'closed number' in Latin. It is one of many methods used to limit the number of students who may study at a university. It can be similar to a racial quota, both in form and motivation. The numerus clausus is currently used in countries and universities where the number of applicants greatly exceeds the number of available places for students. This is the case in many countries of continental Europe." <span style="font-size:130%;">See: <em>Numerus Clausus</em>, Wikipedia, at</span>: </strong><a href="http://en.wikipedia.org/wiki/Numerus_clausus"><strong>http://en.wikipedia.org/wiki/Numerus_clausus</strong></a> <strong><span style="font-size:180%;">].</span></strong></div><br /><br /><div align="justify"><em><strong>The justification given for the need for a numerus clausus is that competition in an open market would detract from notaries’ commitment to public service and endanger the quality of their work.</strong></em> </div><br /><br /><div align="justify"><strong><span style="font-size:130%;">[A RATHER LAME EXCUSE, <em>NON</em>?]</span></strong></div><br /><br /><div align="justify">As a concession to transparency and fairness, a special commission, the Commission de localisation des offices des notaires (CLON), has since 1986 been in charge of monitoring and, if necessary, adjusting the number and location of offices. On average, of the 500 or so young people who qualify as notaries every year, only some 300 end up ‘taking the oath’ and being admitted, the remainder having the choice between waiting for their chance (which can take a long time), offering their services as notaire salarié, or joining the ranks of the competition (the bar) instead. </div><br /><br /><div align="justify"><strong><em>An appointment to notarial office can come about in four ways</em></strong>. Three of these apply to the bulk of the country, the fourth only to the regions of Alsace Lorraine where the German system was retained after the territory’s return to France in 1919. Firstly, candidates may be chosen by retiring notaires as their successors. Secondly, they may apply for a vacancy, subject themselves to a highly competitive examination, and, if successful, produce the funds to indemnify their predecessor. Thirdly, it is possible to apply for one of the (very rare) newly created offices and sit appropriate highly competitive examinations. A burning and very immediate issue amongst the profession’s membership is the current (low) ceiling placed on the number notarial offices by the Minister of Justice. This has increasingly come under fire, especially amongst the younger generation frustrated by the difficulties put in their way, but also from those who see the profession’s tiny size as a serious hazard in a growing and increasingly competitive legal services market. </div><br /><br /><div align="justify">While throughout the nineteenth and the first half of the twentieth centuries, the number of notaires had been regarded as too high and had been allowed consistently to decline [5], a first wave of office creations occurred in 1964 in order to accommodate 101 notaires returning from Algeria. A second wave followed ten years later when 109 offices were established in the context of the introduction of sociétés civiles professionnelles. Had all these new offices survived, they would by 2005 have accounted for 13 per cent of the total of 4503, but quite a few, especially of those created in the 1970s, did not. (Lemoine, 2000; Urvoy, 2005) Yet much more would be needed to meet applicant and market demands. Rebellious voices can be heard asking for a comprehensive overhaul of the appointment system, including offering all applicants the chance to open their own office as well as some choice of location. (Moreau, 2005) In 2005, a first step towards improving the situation and moving towards the figure of 10,000 offices originally promised was taken as government and profession agreed to set up 2000 new offices over the next ten years. Not all members are happy with this plan for fear of greater competition. But overall such fears are outbalanced by t<em><strong>he realisation that the profession needs to increase its visibility and clout, esp. in the light of the rapid growth of the bar</strong></em>. The urgency of this argument is underlined by <em><strong>the prospect of a further strengthening of the bar by a merger with in-house company lawyers (juristes d’entreprise).</strong></em> This would allow the creation of a specialised business bar and move the legal professions closer to its vision of la grande profession juridique. (Boigeol & Willemez, 2005; Conseil d’État, 2001) </div><br /><br /><div align="justify"><strong><span style="font-size:180%;">A unique feature of the French notariat is the fact that an appointment to notarial office requires evidence not only of subject expertise and experience but also of the candidate’s sound financial position</span></strong>. Permission to take out a loan is tied to evidence being provided by the applicant that enough capital is available for a substantial down payment. This goes even for those with the prospect of a newly created office, as they have to find the resources needed to compensate neighbouring offices for alleged loss of income. On the basis of a recent internet survey among aspiring notaires, it has been calculated that this down payment, representing 25% of the ultimate purchase price plus some other costs, amounts to a minimum of 126,383 euro, requiring a newly qualified notary with no personal means to save up for twenty-eight years before being able to consider running his own office. (Notariat2000, 2005) </div><br /><br /><div align="justify"><strong><span style="font-size:130%;"><span style="font-size:180%;">This system starkly contrasts with the</span> </span></strong>system operating in the three departments of Haut-Rhin, Bas-Rhin and La Moselle, where the <strong><span style="font-size:180%;">German admissions system</span></strong> has remained in operation. <strong><span style="font-size:180%;">Here no money changes hands and appointments are based on purely meritocratic criteria.</span></strong> Nor have any major financial scandals (sinistres) - the bane of the profession in the rest of France - ever come to light in these parts of the country. <em><strong><span style="font-size:130%;color:#000099;">Yet, the adoption of a meritocratic principle has found little favour among the profession where everyone already installed would stand to lose</span></strong></em>. </div><br /><br /><div align="justify">A survey among some 900 notarial offices conducted early in 2005 by the journal Notariat2000 (which is associated with the Mouvement Jeune Notariat) did find considerable sympathies with a meritocratic system. But in this particular context the traditional system for existing offices was not drawn into question and opinions were only sought on the topic of newly created offices. </div><br /><br /><div align="justify">Not surprisingly, <strong><span style="font-size:180%;color:#ff0000;">the institution of the droit de présentation and sale of offices</span></strong> has been a frequent target of attack (for a recent example from the camp of avocats see Redoutey, 2006). It <strong><span style="font-size:180%;color:#ff0000;">is the basis for the disproportionate degree of prosperity that marks out a significant section of the French notariat, most particularly in Paris but also in other urban centres</span></strong>, where notarial offices have been handed down in the same family from generation to generation. Average prices quoted for 2002 were 50,000 to 700,000 euros. (Schützeberg, 2005, p. 142). <em><strong><span style="font-size:130%;">So far, nothing has shifted</span></strong></em>. Why should that be so? Apart from the strength of the notarial lobby on the one hand and the lack of political will on the part of the French government on the other, there is a shatteringly simple economic reason, summed up most succinctly in a<strong><span style="font-size:130%;"> comprehensive report commissioned by the French government under de Gaulle in the late 1950s</span></strong> on the subject of obstacles to the country’s economic expansion. Amongst the key obstacles identified by the authors of the report were rigid professional structures and regulations, exemplified by a number of case studies, one of them on professions classified as officiers ministériels, in particular the notariat. However, the report’s recommendations on how to liberalise these professions for the benefit of the national economy prefaces the section on notaires by the following bland statement: "<strong><span style="font-size:130%;color:#ff0000;"><em>The Committee has not judged it possible to propose the suppression of the traditional system of the venality of offices due to the expense the state would incur in indemnities for some 6,370 notaires in metropolitan France."</em></span></strong> (Armand-Rueff, 1960, p. 43 - my transl.) To this day, in any debate about <strong><span style="font-size:130%;">the profession’s role in society, its ambivalent dual status of public officer and member of a liberal profession (seen by its critics as having its cake and eating it), the droit de présentation has remained the main sticking point.</span></strong></div><br /><br /><div align="justify">To quote from a book by one of the system’s more brilliant critics, at the time (1970s) the youngest judge at the court of appeal in Paris, Michel Jeol: <strong><span style="font-size:180%;color:#ff0000;">"Is it acceptable in a republican system that one should come to a public office by purchasing it?</span></strong> Admittedly, the government gives its agreement and the profession its views on each occasion of transmission of office. But those checks do not ensure democratic access to the function. On the contrary, they lend themselves to discrimination when to the obstacle of money can be added exclusion on political and social, indeed also on racial and religious grounds." (Joel, 1977, p. 98) Joel’s suggested solution was a gradual phasing out of the numerus clausus by limiting office holders’ ownership to their own lifetime so as to spread the costs of compensation over time and make the process manageable. <em><strong>But to this day, neither this nor any other proposed strategy to remove this eyesore left over from the ancien régime has received serious consideration by the French government. Representatives of the profession itself, when questioned on the subject, tend to play down its significance, emphasising variously the difference between droit de présentation and vénalité, the fact that the final say on the choice of a notary’s successor and the price to be paid for his office rests with the Minister of Justice, and the analogy with other liberal professions (lawyers, doctors etc.) who also own and sell their offices (but, of course, do not also claim to be officers of the state).</strong></em> <strong><span style="font-size:180%;">Notaries in other countries look upon this state of affairs with mixed feelings, occasionally tinged by a touch of envy</span></strong>, as it adds further to their difficulties in explaining convincingly to their own critics the benefits to society of the profession’s dual role as public officer and member of a liberal profession.<br /><br /><br /><strong><span style="font-size:130%;">Income and activities</span></strong><br /></div><br /><div align="justify"><br />Having gone through economically uneven times in the 19th century, French notaries have, since World War II, developed into a truly prosperous profession, largely due to the profession’s intimate link to the property market. In 2005, their clientel numbered some 20 million (i.e. roughly one third of the country’s population), and their annual turnover was 5800 million euro. In June 2005, the periodical L’Expansion published ‘the truth about the liberal professions’, showing notaries to have the second highest average income of all liberal professions in France, well above avocats. From 2002-2003 their income level rose by 17.1% to a national average net income of 187,000 euro per notary, compared to an increase by 6.3% to a national average income of 62,605 euros for avocats for the same year. These average figures hide huge discrepancies between the highest earners in Paris and other big cities and low earners in economically deprived rural areas. However, no notaire has ever been forced into real financial hardship as the profession collectively funds its own insurance system as a safety-net for anyone getting into serious financial trouble, be it through financial mismanagement, personal misfortune, or a downturn in the respective region’s economy. </div><br /><br /><div align="justify"><strong><span style="font-size:180%;color:#ff0000;">The profession’s prosperity is mainly anchored in a generous range of monopolies in the legal services market given over to them by law, most particularly in the context of property registration.</span></strong> </div><br /><div align="justify"><br /><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjWKvhf8rusxMw5dI6XZi3TF2u5nWcNluRybUlxzjKLwXgsWGinGXP0iuuuJsno5TH9TlrI97VbLKiteDN9YA0S5WONtsbPIysi2cWwX6_XhRmVEZ8e2y1kdaYcLW6NY8wA42XaO_91GvTU/s1600-h/Hen+that+lays+the+golden+eggs+I.gif"><img id="BLOGGER_PHOTO_ID_5288376017749741378" style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 240px; CURSOR: hand; HEIGHT: 320px" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjWKvhf8rusxMw5dI6XZi3TF2u5nWcNluRybUlxzjKLwXgsWGinGXP0iuuuJsno5TH9TlrI97VbLKiteDN9YA0S5WONtsbPIysi2cWwX6_XhRmVEZ8e2y1kdaYcLW6NY8wA42XaO_91GvTU/s320/Hen+that+lays+the+golden+eggs+I.gif" border="0" /></a><br /><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgGFCPOwBPs4qNz5TYx3-JFc-PuVNi3or15HDSmQZWB1s0nwyQ3hOHFyOpE07BZCR68JmWtPM8osPN_DDUGch3mqz3jD6fAbHj_UClIDf2FJgp5-naHDQgbBjYwvDW0rO_QSh3tEKdA3Dhp/s1600-h/Hen+that+lays+the+golden+eggs+II.jpg"><img id="BLOGGER_PHOTO_ID_5288376114232602994" style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 320px; CURSOR: hand; HEIGHT: 197px" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgGFCPOwBPs4qNz5TYx3-JFc-PuVNi3or15HDSmQZWB1s0nwyQ3hOHFyOpE07BZCR68JmWtPM8osPN_DDUGch3mqz3jD6fAbHj_UClIDf2FJgp5-naHDQgbBjYwvDW0rO_QSh3tEKdA3Dhp/s320/Hen+that+lays+the+golden+eggs+II.jpg" border="0" /></a><strong><span style="font-size:180%;color:#ff0000;">Their (quasi-)monopoly regarding access to the land register, the outcome of a reform of land registration in 1955, is the source of <em>over half</em> of their average annual income</span></strong> - <em><strong><span style="font-size:130%;color:#000099;">enthusiastically referred to by one of their members as ‘the notarial hen of the golden eggs’ (‘la poule aux oeufs d’ore notariale’).</span></strong></em> (Bigot (2005, p. 15) <strong><span style="font-size:130%;">Another quarter comes from activities in family law and estate management, the remainder stemming from work concerning loans and mortgages, company law work, general counselling etc.</span></strong> Notaires have been alerted by their leadership that, although in absolute terms their market looks healthy, it is actually shrinking in relative terms from year to year, as the legal services market overall as well as the number of providers are exploding. By their own admission, notaries collectively have become rather complacent and are making little or no effort to retain other traditional areas of activity, let alone expand into new ones.</div><br /><br /><div align="justify"><strong><span style="font-size:180%;color:#ff0000;">The seemingly unstoppable increase in the value of property has given them a sense of security which many regard as a high-risk approach. Admittedly, every increase in the price of housing automatically increases their income</span></strong>. </div><br /><br /><div align="justify">But even if the property market continues to expand, competitors are always looking out for a chance to get their own slice of the cake. Already the journal L’Expansion has alerted its readers to the possible savings if, in selling a house worth over 1 million euros, they involve an avocat and the courts rather than a notaire. <strong>Property agents are major opponents in property sales transactions in urban areas, as notaires have allowed their share to slip from 9% to a mere 6% in the four years since 2002. Property agents now hold 70% of this market, having consistently worked on improving their position</strong>. Not only have they made sure that their tools are the most advanced possible (specialist training, deontological code, websites, computer technology, research and working networks). They have also set up chains, often owned by banks and attracting clients through optimal efficiency. </div><br /><br /><div align="justify"><strong><span style="font-size:130%;">Inheritance planning is another traditional notarial activity which is gradually slipping into a marginal position <span style="font-size:180%;color:#ff0000;">as notaires are concentrating more and more on authentication work</span>, shunning the need for the specialist training that would be required in this ever changing and increasingly complex field, or simply finding it difficult, particularly in small firms, to release sufficient staff capacity</span></strong>. Although some 80% of those replying to a recent small survey stated that their office still did some inheritance planning, three quarters of these referred to giving ‘simple’ (and often unremunerated) advice rather than getting involved in complex financial matters. The latter are increasingly dealt with by banks and insurance firms equipped with the latest tools and offering teams of specialist advisers capable of providing a one-stop shop. </div><br /><br /><div align="justify"><strong><span style="font-size:130%;">Finally, newly emerging areas of activity in the legal services market are mostly left without a struggle to other legal service providers, i.e. lawyers and accountants</span></strong>. A recent example has been the refusal to get involved with PACS (pacte civil de solidarité), the legal provision established in 1999 for two people (either of the same or of different sex) to set up a contractual partnership for life. In this case, the beneficiaries were the former conseils juridiques who then became avocats d’affaires, who had already occupied the area of commercial law spurned by notaries and who are now only too happy to take advantage of this expansion of their terrain. Another area not yet tapped is the rapidly growing field of mediation. By 2003, France had a total of 1,850 conciliators and 2,000 mediators, comprising avocats, social workers, psychologists and even medics, but notaires have so far not got seriously involved, although mediation by its very nature is acknowledged to be fully in tune with their role in the non-adversarial judiciary.<br /><br /><br /><strong><span style="font-size:130%;">Fees<br /></span></strong><br /><br /><strong><span style="font-size:180%;">The bulk of notaries’ work is remunerated on the basis of a statutory fees scale</span></strong>. Fixed fees were introduced as late as 1896 to curb fraudulent behaviour on the part of notaries following a period of notorious financial scandals. This was initially done on a regional basis to take account of differences amongst regions, but met with considerable resistance from the profession. It was only in 1945, that fees scales were harmonised on a national basis, an important step in the process of professional unification. (Moreau, 1989, 99) They then became a bastion which the profession has successfully defended ever since, with full government support. <em><strong><span style="font-size:130%;">The justification put forward is that ad valorem charges, that is fixed fees based on the value of a transaction irrespective of the work and complication involved, allow for a more socially just distribution of costs, as clients engaged in major transactions are effectively cross-subsidising the costs arising from transactions of minor financial value.</span></strong></em> <em><strong><span style="font-size:130%;">If a client has no choice whether to see a notary or not, it is argued, notarial services must remain accessible even to the economically disadvantaged.</span></strong></em> </div><br /><br /><div align="justify">It was only in 1986 that the notariat used its acceptance of the lifting of the fees scale for commercial work not covered by their monopoly as well as the negotiability of fees in transactions of above 500,000 francs as a bargaining chip to fend off worse governmental interference. The impact of this reform has remained modest, as <strong><span style="font-size:180%;color:#ff0000;">the fees income from authentic notarial acts accounts for an average of around 90% of notaires’ earnings</span></strong>, although a minority of members in economically disadvantaged regions (especially in central France) have to be satisfied with a mere 70% and are therefore forced to generate further income from additional services - by any standards, nationally or internationally, still not a bad position to be in. <strong><span style="font-size:180%;"><span style="font-size:130%;">The institution of fixed fees has, however, not prevented French notaries from steadily expanding their scope for commercial pricing </span></span><span style="font-size:180%;"><span style="color:#ff0000;">even in the context of authentication</span>.</span></strong> As since 1986 negotiated fees have been officially permitted for the exceptional event that a notarial act is not required by law but nevertheless requested by a client, there is a loophole for a more liberal application of the norm. </div><br /><br /><div align="justify"><em><strong>Negotiated fees have become perfectly common in areas where there is competition with other professions, as for instance in company law matters.</strong></em> Here rebates are offered on fees that would otherwise exceed 80,000 euros, and on occasion fees are waived altogether. (Schützeberg, 2005, pp. 157ff.) The National Council’s warnings of the political risks of this trend don’t appear to be heeded. Grass roots’ calls to press the government to raise fees are discouraged by the profession’s leadership as unwise in the present climate. Members have been urged to let sleeping dogs lie and to heed evidence from a number of other countries where highly unwelcome developments have already occurred: Quebec and Switzerland have abandoned the fees scale altogether, the Netherlands are phasing it out, and Belgian notaries are fearing the worst; Italy now merely sets maximum and minimum fees levels, and Spain has introduced severe fees reductions. </div><br /><br /><div align="justify"><em><strong><span style="font-size:130%;"><span style="color:#000099;">Rather than pressing for more generous fees for French notaries, members are exhorted to resist the temptation to deviate from the official fees scale in order</span> <span style="color:#ff0000;">to avoid offering their enemies - the bar, the EU Commission, the Ministry of Finance - the exact weapon they need to justify the abolition of the entire system</span></span></strong></em>. Rocking the boat would be highly unwise, the CSN President warned them at their conference in 2003, given the profession’s almost total reliance on fees-based income. Nor could they, in his view, expect much sympathy from the Ministry of Finance whose figures for the year 2000 had just shown notaries to be the highest earners amongst French liberal professions. (Roth, 2003) What was really needed, the CSN President insisted, was a simplification of the existing fees structure, providing (a) greater transparency for clients and (b) adequate safeguards for notarial offices in non-favoured regions, but without increasing overall costs to society. If this antagonised the country’s very few high earners (who would lose out), so be it. This diplomatic balancing act on the part of the profession’s leadership has since paid off. By 2004, the CSN had started discussions with the Ministry of Justice about a ‘modernisation’ of the remuneration system, the profession having been reassured by the Minister that the fixed fees scale for their work as public officers would not be called into question, as it served social justice and equality amongst clients and amongst members of the profession.<br /><br /><br /><strong><span style="font-size:130%;">Business structures<br /></span></strong><br /><br /><strong><em>Notaries everywhere in the world are a small group compared to their main rivals, the advocacy</em></strong>. Traditionally, they have worked each in their own office and in relative isolation. Today, <strong><span style="color:#000099;">France, with the possible exception of the Netherlands, is the country where the profession has moved furthest away from this mode of working and has made the greatest strides in adapting organisational structures to modern market requirements</span></strong>. On 1 January 2006, France had 8299 independent notaires (around one fifth of the number of avocats), making for a ratio of 7308 per head of population - a relatively high density by Western European comparison [6]. Only roughly a quarter (2184) still operate as sole notaries [7], almost half of these in rural areas which take up some 70% of the country’s territory. For some years now, thinly populated rural regions, where fully fledged offices have ceased to be viable, are provided for by bureaux annexes attached to a fully functioning office in the same region. The majority of notaires (6115) are members of groupings of different types and sizes. The option of partnerships, which was first made available in 1966/67 and was further expanded in the early 1990s, has opened the door to entrepreneurial thinking and management, encouraged rationalisation, and made it possible for individuals to specialise (although as yet very few do). Notaries may opt merely to share office facilities (société civile de moyens - S.C.M), an option rarely taken up (a total of 10 by December 1999); or to set up or join one of two types of société civile professionelle (S.C.P) which is itself a legal person - the choice of the majority since the late 1960s; or (an option available to the notariat since 1990/1993) to join one of three possible forms of an incorporated company (société d’exercice libérale – S.E.L), a route which has been taken by a small number (50 by 30 June 2003), but which is having significant impact in terms of shifting the profession towards an entrepreneurial culture. The size of notarial firms, though still tiny compared to that of law firms, is rising well beyond the level found anywhere else, with the sole exception of the Netherlands whose notariat is the most liberalised on the continent of Europe. In France in early 2005, the largest notarial firm counted a staff of 8 partners, 8 salaried notaires, and c. 100 office staff, of whom 11 were fully qualified notaries awaiting appointment to offices of their own (notaires diplômés). </div><br /><br /><div align="justify">Monoprofessional and even multiprofessional networks, albeit of low profile and local or regional rather than national in character, have been around in France in the field of law <em><strong><span style="font-size:130%;color:#ff0000;">since the 1970s, the decade during which</span></strong></em> <strong><span style="font-size:130%;color:#ff0000;"><em>two large accounting firms (that later became KPMG and Coopers and Lybrand respectively) first took roots in France. Ten years later, the ‘Big Eight’ turned their attention to France. By the late 1990s they had consolidated to form the ‘Big Five’ and had captured around one third of the legal services market for businesses</em></span></strong>. The fusion of avocats and conseils juridiques in 1990 which had been intended to create a strong counterweight of French lawyers in the field of commercial and company law had backfired in that it sparked off numerous controversies between avocats and experts-comptables leaving no time for discussions about multiprofessional groupings. The issuing in 1998 by the national organisation of bars (Conseil national des barreaux) of highly restrictive regulations intended to apply to such groupings involving lawyers, led to protest among a number of more progressive members of profession, and resulted in the government-sponsored Nallet report of 1999 on multidisciplinary networks and the legal professions, recommending the setting up of multidisciplinary groupings by French lawyers and accountants to counteract the work of the ‘Big Five’. (Nallet, 1999; Bpoigeol & Willemez, 2005). </div><br /><br /><div align="justify"><strong>If the French bar resisted the involvement of avocats in multidisciplinary networks, the same applied to the notarial leadership</strong>. In 1993, the CSN put an early break on developments in this direction by setting up a Network Committee (Comité des Réseaux, CORES) supposed to register, vet and control such groupings, which was however left without any means of enforcement, as disciplinary powers remained with departmental chambers who would have to inform the CORES of any irregularities. Unsurprisingly, the CORES ended up simply registering those who volunteered to come forward and has been unable to fulfil the function it was initially set up to perform, with many of those on the register having ceased to function actively. As for the Nallet report, the Conseil supérieur national had successfully lobbied the report’s author and his commission not to include the notaires in his study in recognition of their special status of public officers, fearing the eventual loss of the profession’s separate identity. </div><br /><br /><div align="justify"><strong>Larger notarial networks of national status</strong> still tend to be monoprofessional ones. An outstanding example, as well as among the first of its kind, is the Groupe Monassier. (<a href="http://www.groupe.monassier.com/">http://www.groupe.monassier.com/</a>) Established in 1992 by the Parisian notaire Bernard Monassier who had read the signs of the times and was determined to keep up with market developments and the requirements of enterprises, it currently comprises 24 notarial firms with a total of 86 notaires and 650 staff. The network projects the image of a modern enterprise, committed to cutting-edge expertise supported by relevant research. An executive committee of 9 members is responsible for implementing the strategies agreed on at their general annual meeting, ensuring a common approach to methods of working, organisation and communication. <em><strong>Having initially focused on commercial law and inheritance planning, the network now offers a comprehensive range of services, covering family and inheritance law, international law, company and commercial law, and property law, with an emphasis on complex financial and tax issues.</strong></em> Members are chosen from across the country to ensure full geographical coverage, and they are carefully vetted according to certain criteria: they have to have and be prepared to develop expertise in the network’s areas of work, be members of an SCP or SEL, achieve a certain minimum annual turnover, pay a fee to join as well as annual membership fees, and be approved by existing members. </div><br /><br /><div align="justify"><em><strong>In recent years, a first move on the part of Groupe Monassier in the direction of breaking out of the monoprofessional structure has been the institution of corresponding membership, which has made it possible to include foreigners - not only notaries but also lawyers.</strong></em> Corresponding members require approval by the executive committee, pay a fixed fee, and are allowed to use certain of the association’s services. Non-French members currently are mainly from Western Europe (Germany, Luxembourg, the Netherlands, Belgium, Spain, Great Britain and Switzerland), but also from francophone Africa and Canada. The Group is committed to continuing staff development and research, requires its members to acquire ISO 9001 certification, and employs the most up-to-date methods of communication. More recent national monoprofessional groupings have tended to focus on one specific area previously neglected by notaries and requiring a high degree of specialisation. The best known of these is Pharmétudes, a network created to engage with all aspects of legal advice required by pharmacists, that is to go beyond the normal notarial act of authenticating the purchase or sale of a pharmacy. (<a href="http://www.pharmatudes.com)/">http://www.pharmatudes.com)/</a>. The network is funded by its members, runs a constantly updated database of acquisitions and sales of pharmacies nationally, is regularly represented at pharmacist conferences, has a carefully placed national membership, is committed to keeping up with all developments in the field and to continuing training for both notaries and their staff. A more recent network, Nôtel, created in 1998 for the hospitality industry (hotels, bars, restaurants), was modelled on Pharmétudes. But in contrast to its model, it is a closed network, accessible only to members, with a much larger market and a more rapid turnover, as ownership is subject to frequent change. There is a third national grouping, Jurisvin, which caters for all legal needs of winegrowers. (<a href="http://www.jurisvin.fr/">http://www.jurisvin.fr/</a>) </div><br /><br /><div align="justify">In 2000, the annual conference of the Assemblée de liaison des notaires de France was devoted to the topic of organisational structures of notarial firms. The published report (Assemblée de Liaison des notaires de France, 2000) presented a detailed picture of the profession’s precarious situation and urged members to take seriously the need to modernise its structures. One suggestion from a politically active Parisian notaire was to make more efficient use of the statutory relaxation provided in 1990/1993 by creating holdings. These would, he argued, facilitate the setting up of international as well as interprofessional networks able to respond to new market requirements, while also representing a truly proactive response to the Nallet report and its reflexions on the conditions necessary to modernise the juridical professions - the notariat included. (Humbert, 2000) The only condition for the notariat to get involved would have to be that all those participating belong to regulated professions, therefore strictly excluding banks. Another advocate of networks of all types appealed to his colleagues to remember how the bar ultimately benefited from their exposure to liberalisation in the context of their struggle with the five big accountants firms. Putting one’s head into the sand is not an option, he claimed, urging instead to plan for the worst possible scenario, that is the termination of their special status and protection from competition. After all, what had happened in Quebec and in the Netherlands, could conceivably happen in France. And if interprofessional associations worked in the medical field, why should they not work in the field of law? (Lecuyer, 2000) Multiprofessional groupings that do exist tend to be smaller in scope than monoprofessional ones. They are typically local and regional in character, based on joint interests and personal relations amongst notaires, avocats, experts-comptables, banquiers-assureurs etc., and often arise from social groupings such as the Lions or Rotary Clubs - developments encouraged by the growing pressure of European and global forces on the liberal professions in general and on the legal services market in particular. </div><br /><br /><div align="justify">An impressive recent example of interprofessional co-operation was <strong><span style="font-size:130%;">the first ever joint congress of 7 liberal professions in Lyon in June 2006</span></strong>. It was the brain-child of the Ordre des experts-comptables de Rhône-Alpes who had invited a number of prestigious speakers including a prominent member of the European Parliament. <strong><span style="font-size:130%;">Around 400 professionals attended, including notaires and avocats, all keen to present a united front in the face of the European Commission’s liberalisation measures</span></strong>. No doubt, further multiprofessional initiatives will result from this event. <em><strong>An issue closely linked with that of networks is the need for greater specialisation within the profession</strong></em> - a notion inherently alien to the traditional notaire who regarded his generalist label as sacrosanct and essential to his role as personal counsellor for the whole family and, ideally, from one generation to the next. <em><strong>In a way, of course, the bulk of the profession have already become specialists, i.e. specialists in property law, though not by strategic planning but by default</strong></em>. In structural terms, the specialist does not officially exist, although in larger offices in urban areas, especially in Paris, a degree of specialisation has naturally evolved. <strong>The more progressive elements of the profession argue that just as there is room and need for general practitioners and specialist surgeons in medicine, so there is room and need for generalist and specialists notaries</strong>. (Rose, 2005) But they are as yet in a minority.<br /><br /><br /><strong><span style="font-size:130%;">Management culture<br /></span></strong><br /><br />Promoting the need to transform notarial offices into efficiently managed enterprises has become a priority for the Conseil supérieur. Members are urged to ensure that their offices are organised on proper business principles, paying particular attention to personnel management, quality control systems, and the use of technology. Predictably, achievements in this context vary greatly, with larger city firms having obvious advantages over small and isolated rural ones. Improvements in personnel management have become particularly important given the French profession’s striking reliance on support staff, both notarial and administrative, a feature unknown in most other civil law systems. Office holders are constantly reminded by the National Council that the age of patriarchal regimes is over and that they need to take seriously their role as employers, entrepreneurs and managers. From 2004, annual staff interviews for developmental purposes have become a statutory entitlement of all employees (la loi Fillon), and written accounts of these are required to be handed to interviewees and be available for annual inspections. A key outcome of these interviews is to be an agreement between employer and employee on her or his staff development plan, given that the new legislation entitles every employee in France to around 20 hours of training a year, a good deal of which can be taken during working hours without loss of pay (Droit individuel de formation (Dif)). </div><br /><br /><div align="justify">Notarial employers, on whom rests the onus of setting up the annual interview, are taking some time to absorb and act on the new regulations,. But so, it seems, are their staff who would have to take the initiative to make use of their right. Small offices with fewer than 10 staff are finding it particularly difficult to comply, both in practical and in psychological terms, one of the more frequently heard objections being, Why and how conduct formal interviews when you are working with these people day in day out? And how can you spare them when there is nobody to replace them? Until a few years ago, ready availability of qualified applicants for jobs in notarial firms could be taken for granted. But this has now changed, as young people prefer more glamorous and less specialised careers, better remuneration and a city environment. Both, qualified notarial and qualified administrative staff, are in short supply nationally and will increasingly become so over the next 5 years, as a wave of retirements amongst baby-boomers of both categories is setting in. Nearly 1000 notaires will have retired by 2008. Replacements can come from three groups: either the current pool of notaires stagiaires (trainees in their final stage of training), or from among notaires assistants (those who have completed training and are waiting for opportunities for appointment to independent notarial status), or from notaires salariés (fully qualified notaries with all the rights and duties of a notary, but salaried rather than self-employed), all of which also need to be replaced. </div><br /><br /><div align="justify">Success in recruiting such collaborators varies greatly, with rural offices experiencing most difficulties while those in Paris have all the choice. A particular headache to the profession is caused by the fact that not infrequently those fully qualified as notaires (by a process which involves the profession in not inconsiderable expense) end up opting for another career, either because they cannot come by an office of their own or because competing professions who are very happy to absorb young lawyers with additional notarial expertise are making them more attractive offers. <strong>The post of <span style="font-size:130%;">notaire salarié</span>, a notion regarded in most civil law systems as a contradiction in terms as it would seem incompatible with the essential feature of independence, was created in 1990 and initially intended not only as a safety-valve to ease the pressure brought about amongst aspiring notaries by the numerus clausus on the one hand and financial constraints on being appointed to an office on the other, but also as an option for <span style="font-size:130%;">conseils juridiques</span> whose profession was being disbanded and whose membership would have provided the notariat with welcome access to the fields of company and commercial law</strong> [8]. There had been the hope that the notaire salarié might facilitate flexibility and modernisation without any risk to the existing tight regulatory framework. (Lefalher, 2000) However, the result so far has been disappointing. The take-up has been distinctly hesitant (2004: 200 notaires salariés, i.e. 2.5% of the total) and <strong><span style="font-size:130%;">the status of notaire salarié has generally come to be regarded with suspicion, a kind of second-class notaire</span></strong>. As for <strong><span style="font-size:130%;">the conseils juridiques</span></strong>, they <strong><span style="font-size:130%;">mostly moved straight into the advocacy, strengthening its position in the area of commercial and company law</span></strong> and thereby reinforcing rather than easing pressures on the notariat. </div><br /><br /><div align="justify"><strong>Possibly the greatest human resource problem facing the French notariat is a looming shortage of qualified administrative and technical staff</strong>, on whom the success of any notarial office heavily depends. While during the last thirty years demand for jobs has generally outstripped supply, a wave of retirements in coming years will create gaps which nobody can quite see how to fill. To pre-empt serious problems, the CSN set up an Observatoire des collaborateurs which in 2003 conducted a survey and produced the first comprehensive national picture of administrative staff on permanent employment contracts in notarial offices, covering a wide range of different facets, including employees’ functions, specialisations, and retirement plans. (Assemblée de Liaison des Notaires de France, 2004) <strong>It emerged that of the total of 41,108 staff in post by the end of 2002, a quarter, that is over 11,000, would have retired by the year 2010.</strong> The detailed profile of those retiring has provided the CSN with a clear overall idea of what training needs to be put in place in preparation. Most of this will concern women, as these already make up 82% of administrative and technical staff, and their share is likely to rise in future. Significant regional variations will require a good deal of fine tuning, with support needed for the most economically disadvantaged regions where recruitment of staff has been problematic at the best of times. </div><br /><br /><div align="justify">Quality control is a relatively new concept for French notaires and sits awkwardly with the profession’s traditional self-image. As recently as 2001, the then President of the CSN referred to ISO as a very Anglo-Saxon notion not suited to French culture (‘ce que nous sommes’), and warned anyone trying to use it for publicity purposes. Instead he recommended simple certification of services. By 2003, the CSN had changed President and position. The mere certification of services was declared to be unsuitable as it was not entirely under the profession’s control, but partly in the hands of consumer organisations and the national competition authority. Nor were their methods, involving surprise visits and the direct questioning of clients, compatible with the profession’s ethical code. Generally speaking, certification methods were said to lack sophistication and to be unsuited to the individual character of offices. Instead, the ISO system was recommended to the membership. They were reminded that quality control of some form had become essential, be it only to fend off competition, especially in the European context. At the start of 2004, a two-year quality plan (la démarche qualité notariale, DQN) was launched by the CSN, based on 15 ways of improving the quality of notarial services. Those willing to participate were promised financial support. The plan involves three stages: the first focuses on improving the running of the office (e.g. reception services, filing, and archiving systems), the second on management issues, while the third prepares for certification ISO 9001 (2000). The target for the end of 2006 was set at 1200 firms being involved in some form. Progress during the first two years had been rather slower than hoped. Only around 650 had got involved. However, 21 departmental chambers and 9 regional councils had launched their own plans, which promised to speed things up, while a good number of (mostly southern) regions had not even begun. Ahead of the pack were 28 firms who already held the ISO certificates, amongst them 15 members of Groupe Monassier. </div><br /><br /><div align="justify">The high profile given over to quality is reflected in a structural reform introduced in 2004. Departmental chambers have been relieved of their disciplinary powers (traditionally their key role), which have been moved up to regional level to introduce an element of distance between the parties, make the process a more transparent and objective one, and silence the profession’s external as well as internal critics accusing it of laxness and attempts to cover up disciplinary offences committed by those same 10% who regularly run up an annual record of client complaints well above the average level. This reform has been presented by the leadership as a bold one. Yet, more progressive elements within the profession - admittedly, still a minority - consider it to be no more than a reformette and would like to see further measures in this direction. Why, some have been asking, does the notariat not have the courage of the Paris bar which publishes in its internal bulletin an annual list of sanctions and the reasons for them? As things are, there is not even a binding obligation on the part of the regional council to inform the complainant of the outcome of the procedure. The number of critics of the traditional secrecy surrounding disciplinary offences as well as the lack of rigour in applying the existing scale of possible sanctions is growing, as is awareness that today a poor public image can no longer be shrugged off but is likely to have serious economic consequences which affect everyone in the profession. </div><br /><br /><div align="justify">Greater transparency and disciplinary rigour require a tightening up of annual inspections of notarial offices, which are generally accepted to have become rather lax, with the result that in some instances turpitudes have been allowed to be committed for many years without being spotted. Inspections are carried out by members of the profession accompanied by experts qualified to assess the state of accounts and the handling of client moneys, normally accountants (experts-comptables). Emphasis has traditionally been on financial aspects, although legally all aspects of office management are supposed to be subject to critical scrutiny, including the use of modern technologies. In their efforts to sensitise members to the crucial significance of quality control, the profession's leaders are emphasising the need for the profession to retain its control over the procedure. Occasionally, the need for training for inspectors is mentioned, but as yet no action appears to have been taken. </div><br /><br /><div align="justify">The French notariat has made considerable strides over recent years in making use of new technologies to improve notarial services. As early as 1979, they were asked by the government to establish a national data base of last wills. This has now been computerised and can be accessed electronically by notaires to find out whether a will exists, when it was registered and in which notarial office it has been deposited. The French data base is linked with a similar one in Belgium. Then there is the electronic network REAL, a secure intranet for the transmission of data among notaires, and the REAL card, issued by the National Council to each notaire and their qualified collaborators, which allows them to access confidential data stored in the profession’s electronic data bases. Work on electronic storage and archiving of acts is in progress. Thirdly, the profession has developed a constantly updated national data base of all types of property on the market, listing precise information on location, key features, technical details, and price (la Base B.I.E.N.), thereby improving the speed and quality of advice given to clients as well as providing more accurate information on developments in the property market. Finally, the five regional research centres (CRIDONs) have computerised their materials, and the Parisian Chamber has created a system allowing clients confidential access to their files as well as to communicate with their notaire on line. Full use of these tools by all requires individual offices nation-wide to be up to speed with their own technological equipment. A good deal still remains to be done in this context. As yet, ignorance of the existence and nature of these tools, lack of awareness of the growing importance to make use of them, and outdated and incompatible equipment are anything but uncommon. </div><br /><br /><div align="justify">All in all, considerable efforts are being made by the leadership towards nudging the profession into a new era of entrepreneurial accountability and openness, as an urgent measure to maintain credibility in an environment where both these qualities are regarded as a sine qua non. Ironically, this coincides with an enhanced political emphasis on the official nature of the profession, including all its facets and activities, in the hope that this might shield it from the harsh winds of ‘ultra-liberalism’ blowing from Brussels and finding a worrying echo within France. </div><br /><br /><div align="justify">In the words of the President of the CSN on the occasion of the 2004 annual meeting of the Assemblée de Liaison des notaires de France: "The notariat finds itself once again at a turning-point in its history. <em><strong>Having, in the 1980s, successfully stood up to those advocating a position of ‘all state’ (‘tout Etat’), it is now confronted with those unconditionally favouring the ‘without state’ (‘sans Etat’).</strong></em> <strong><span style="font-size:130%;">Between the two, there is another path, there is</span></strong> <strong><span style="font-size:130%;">the notariat, the notariat which combines social usefulness and economic efficiency, a notariat that combines public service and service to the public - but, beware, that path is a narrow and demanding one".</span></strong> (Dejoie, 2005, p.18)<br /></div><br /><div align="justify"><br /><strong><span style="font-size:130%;">What future ?<br /></span></strong></div><br /><div align="justify"><br /><em><strong>The French notariat’s strategy has been shaped by its determination to maintain and consolidate its autonomy and status</strong></em>. This has been achieved by means of occasional minor concessions to pressure for change from within and without while remaining firmly in control of its own destiny. <em><strong>In this it has been able to count on the unwavering support of the Ministry of Justice</strong></em> which has shown no appetite to upset its historically grown and structurally robust relationship of interdependence with the profession. However, <strong><span style="font-size:130%;color:#ff0000;">this constellation is now at risk, as economic globalisation and the growing weight of the European Union have shifted the focus away from a purely national to a European and even world level, and economic arguments have been gaining predominance over all others</span></strong>. The World Bank’s reports Doing Business of 2004 and 2005 have left notaires in no doubt that their very raison d’être is being questioned. (<a href="http://www.doingbusiness.org/">http://www.doingbusiness.org/</a>) Nor can they draw much comfort from the European Commission’s approach to the liberal professions. <strong><span style="font-size:180%;color:#ff0000;">As an institution deeply rooted in the system of civil law, the notariat has additional reason to feel vulnerable, as competition from common law and common law lawyers is getting ever more threatening</span></strong> [9]. </div><br /><br /><div align="justify">Faith in its own strengths backed by solid government support has, it seems, for quite some time clouded the profession’s awareness of the reality and precise nature of the threats ahead. Only the last five or six years have seen the start of serious efforts at a systematic and coherent defence of its position. <strong><span style="font-size:130%;">The French government is still firmly behind the notariat, insisting on the need for the traditional regulatory regime to remain in place, including all the pet targets for attack by those advocating a liberalisation of the legal services market: nationality requirement, numerus clausus, fixed fees, ban on advertising, and limitations on permissible organisational structures.</span></strong> <strong><span style="font-size:130%;color:#ff0000;"><em>After all, an attack on the nation’s officiers ministériels and public officers, and on their statutory rights and duties also represents an attack on the French government’s authority to regulate the liberal professions as it sees fit. The National Council of Notaries and the Minister of Justice have been united in their defence of the French notarial system, presenting it as not only viable but the ideal model for a well-functioning economy</em></span></strong>. In the words of the Minister, in March 2003: <strong><span style="font-size:180%;">"The organisational principles of the notariat and the mission of the authentification of acts represent exportable values. Their efficiency can be demonstrated. The prominent characteristics of continental law make a great contribution to legal security.</span></strong> ... The notarial profession finds its proper place in this construction in re-enforcing mutual trust amongst the various parties, guaranteeing the reliability of legal acts and investing their content with certainty. This strategy is in tune with economic developments in all countries." (Boucher, 2003, pp. 43-4) </div><br /><br /><div align="justify"><strong>The profession’s newly designed strategies vis-à-vis the European Commission’s policies have been closely associated with the person of Armand Roth</strong>, Vice-President of the CSN in 2002, its President in 2003, and President of the Organisation of European Civil Law Notariats (CNUE) in Brussels in 2004. Under his leadership, a three-pronged approach has been adopted and implemented. Firstly and most importantly, a range of internal reforms have been set in motion to put the profession’s own house in order, generally modernising its workings and enhancing transparency, accountability, quality of services and the robustness of disciplinary procedures. Secondly, the first serious efforts have been made to assess the nature and possible impact on the profession of Brussels’ liberalisation project. Armand Roth never tired of rallying his troups to engage in the fight for their culture, language, legal system and their own profession, and made every effort to raise the profession’s profile and get the national public on its side by demonstrating its contribution to society and of the quality of its services. Finally, <em><strong><span style="font-size:130%;">under his leadership, the French notariat began to look beyond the country’s frontiers, to engage in discussions with European notarial organisations, to foster the solidarity with other civil law notariats in Europe and in the world at large, and to get actively involved in shaping developments in the evolution of the European legal space</span></strong></em>. </div><br /><br /><div align="justify">His successor, Laurent Dejoie, appears determined to follow in his predecessor’s footsteps. The CSN itself has undergone a restructuring to meet the new demands made on it. (D’Oysonville, 2005) In 2005, the post of Vice-President for European affairs was created within the National Council, and an office set up in Brussels, following the example of Austria and Germany who had been on the alert for some time. </div><br /><br /><div align="justify">So far, the precise outcome of EU liberalisation efforts in relation to the profession of notaries is still in the balance. <strong><span style="font-size:130%;">Should notaires’ public officer status eventually be confirmed</span></strong> (as appears likely), <strong><span style="font-size:130%;">the two most contentious directives relating to the liberal professions would not immediately apply to their core activity</span></strong>, i.e. <strong><span style="font-size:180%;color:#ff0000;">the creation of authentic acts</span></strong>, as it <strong><span style="font-size:180%;color:#ff0000;">is an integral part of the French non-contentious judicial system.</span></strong> What would remain uncertain, however, is the answer to the question <em><strong>what will happen to the remainder of their activities, that is those not covered by their official status</strong></em> <em><strong>but part of their role as providers of legal services in the open market</strong></em>. In contrast to, for instance, German notaries whose activities are limited to authentication work and who do not engage in ordinary commercial transactions, French notaires are after all active on both fronts and are constantly urged by their leaders to widen their expertise and range of services offered, whether in the context of <em><strong>property transactions</strong></em> preceding the actual drawing up of the authentic act (la négociation immobilière), <em><strong>inheritance planning and management</strong></em> (la gestion de patrimoine), <em><strong>or legal advice to businesses</strong></em>. Also, somewhere in the background, <strong><span style="font-size:180%;color:#ff0000;">there always lurks the nightmare scenario of a change of legislation regulating property registration, which currently accounts for over half of notaires’ average income</span></strong>. </div><p> </p><p> </p><div align="justify"><strong><span style="font-size:130%;">There already exist studies funded by the Spanish government claiming that mandatory intervention by notaries or, indeed, any other lawyers, in land and company registration should be abolished as changes in the nature of transactions and methods of registration make such intervention redundant.</span></strong> (Arruñada, 2004a; 2004b). Given their political and commercial savvy and historical record of successful crisis management, notaries in France should be better placed to face future uncertainties and threats than their counterparts in most other West European countries. But status and close links with their government and other national organisations have ceased to be guarantors of the notariat’s continuing identity, relevance and economic prosperity. </div><br /><br /><div align="justify">It is now economic considerations that must take centre stage if this tiny profession largely unused to having to cope within a competitive market is to hold its own: <strong><span style="font-size:180%;color:#ff0000;">against their fiercest competitors, the ever growing number of avocats who have long learnt to embrace the culture of an open national and global market and are keen to see the notariat stripped of its privileges</span></strong> (Pierre Redoutey, 2005); <strong><span style="font-size:180%;">against ever more powerful banks, insurance companies and accounting firms who are well prepared to take over as soon as the opening is there</span></strong>; and not to forget, <strong><span style="font-size:180%;color:#ff0000;">against competitors from abroad, most particularly Anglo-American law firms</span></strong> (Law Gazette, 2006), <strong><span style="font-size:180%;color:#ff0000;">and even a minute, but vociferous and effective lobby of British notaries, which has been putting pressure on the European Commission to ensure the abolition of the nationality requirement to allow them access to the lucrative notarial market in France</span></strong> (Kober-Smith, 2006). However confident their official pronouncements, French notaires may, in the medium to long term, find themselves isolated and dependent on their very narrow (though currently most lucrative) field of official expertise, unless they follow the example of groupings such as the Groupe Monassier and adopt a radical strategy to modernise their organisational and client structures, management style, service range and delivery so as to meet the expectations of an increasingly demanding national and international market. </div><br /><br /><div align="justify"><strong><span style="font-size:130%;">NOTES</span></strong> </div><br /><br /><div align="justify">1. For a recent example that caused the CSN a good deal of headache, see Notaires. Succession d’embrouillles, Que Choisir? (ed. by the Union fédérale des Consommateurs), no. 426, 26 April 2005. </div><br /><br /><div align="justify">2. Loi 48-460 permettant aux femmes l’accession à diverses professions d’auxiliaires de justice (JO 21 mars 1948); this came into force with the publication by the Minister of Justice of the Circulaire relative à l’accès des femmes aux fonctions d’officier public ou ministériel on 15 July 1948. </div><br /><br /><div align="justify">3. Austria (2002): 3.6%; West Germany (2003): 6.1% (notaries only) and 9% (solicitor notaries); the Netherlands (2001): 9.1%; Spain (2005): 30% . The picture is very different in central and eastern Europe, where women represent the majority. Greece (2004) boasts a record of 83% women. </div><br /><br /><div align="justify">4. Institut Notarial de l’Entreprise (INE), Institut Notarial de l’Immobilier (INDI), Institut Notarial du Patrimoine (INP), Institut Notarial de l’Espace Rurale et de l’Environnement (INERE), Institut Notarial des Collectivités Locales (INCL). </div><br /><br /><div align="justify">5. The total number of notaries in France on the eve of the French Revolution is estimated to have been 16,000 to 18,000 - twice today’s number, for a population of 26 million, i.e. less than half of today’s. (Moreau, 1989, p.51)<br /><br /></div><div align="justify">6. Austria: 17,122; Spain: 14,080; Luxembourg: 13,015; Italy: 11,620; the Netherlands: 11,394; Germany: 8995; Greece: 4962. </div><br /><br /><div align="justify">7. This was the norm until the 1960s. - 1970: 95.4%; 1990: 39.9%; 1999: 28.2% (Eric Lefalher, 2000). </div><br /><br /><div align="justify">8. September 2004: 2000 titulaires de 3° cycle notarial (mostly notaires stagiaires), 5000 diplomés notaires (notaires assistants), and 200 notaires salariés (<a href="http://www.mjn.fr/">http://www.mjn.fr/</a>). </div><br /><br /><div align="justify">9. For a spirited response to the Doing Business reports and a defence of the merits of civil law in promoting economic development, see Association Henri Capitant (2005). A carefully structured argument leads up to the tongue-in-cheek question whether Doing Business might perhaps be most aptly described as ‘le Da Vinci Code du droit comparé’: "The year 2004 was marked by the success of a novel which, at the price of hasty comparisons, hazardous hypotheses and a number of untruths, has pretended to reveal the key to 2000 years of history. Delving into the reports Doing Business, one cannot help asking oneself whether this genre is perhaps not limited to popular literature." (p. 33, my transl.)<br /><br />-------------------------------------------------------------------------------------------------<br /><br /><a href="http://www.notaries.org.uk/page32/page27/page27.html">http://www.notaries.org.uk/page32/page27/page27.html</a><br /><br /><strong><span style="font-size:130%;">ART. 57 OF E.U. REGULATION 44/2001: AUTHENTIC ISSUES OF HUMAN RIGHTS?</span></strong><br /><br />BY GREGORY TAYLOR<br /><br /><br />Notary Talk of England and Wales (2005)<br /><br /><br />[NOTE : This article will soon be updated to take into account Regulation (EC) 805/2004 of 21 April 2004 relating to European Enforcement Orders for uncontested claims, which applies from 21 October 2005. To download the new Regulation in PDF format, click <a href="http://europa.eu.int/eur-lex/pri/en/oj/dat/2004/l_143/l_14320040430en00150039.pdf">HERE</a> ] <strong>[BRACKETED INFORMATION IN ORIGINAL ARTICLE]</strong> </div><br /><br /><div align="justify"><strong><span style="font-size:130%;">EU Council Regulation (EC) No. 44/2001 of 22 December 2000 came into force on 1st March 2002</span></strong> [to download the full text of the Regulation in PDF format, click <a href="http://europa.eu.int/eur-lex/pri/en/oj/dat/2001/l_012/l_01220010116en00010023.pdf">HERE</a>]. At first sight, a Regulation describing itself as dealing with jurisdiction and the recognition and enforcement of judgments in civil and commercial matters may seem to have little or no relevance to Notarial acts, which are not "given by a court or tribunal", and although Notaries are appointed by a Court or other lawful authority, they are independent and therefore not "officers of the court" (Art. 32). Turning however to <strong><span style="font-size:130%;">Art. 57.1</span></strong>, we find : <em><strong>"A document which has been formally drawn up or registered as an authentic instrument and is enforceable in one Member State shall, in another Member State, be declared enforceable there...".</strong></em> </div><br /><div align="justify"><br />Oddly, the Regulation does not define the term "authentic instrument", but by <strong><span style="font-size:130%;">Art. 57.3</span></strong>, <strong><span style="font-size:130%;">the document must satisfy the conditions necessary to establish its authenticity in the EU Member State of origin. </span></strong></div><br /><br /><div align="justify"><strong><span style="font-size:180%;color:#ff0000;">The concept of an "authentic instrument", being unknown to the common law, has no practical meaning in England and Wales</span></strong>. However, other "equally authentic" versions of the Regulation translate the term as : German - öffentliche Urkunden ("public certifications") ; French - actes authentiques ("authentic acts") ; Spanish - documentos públicos ("public documents") ; Italian - atti pubblici ("public acts"). <strong><em><span style="font-size:130%;">The Regulation states that an "authentic instrument" within Art. 57.1 and which is enforceable in the Member State of origin can be enforced in another Member State if it has also been declared enforceable in that other Member State (and in the case of the UK, in the relevant jurisdiction within the UK).</span></em></strong> </div><br /><br /><div align="justify"><strong><span style="font-size:130%;">In the Continental European "civil-law" jurisdictions, Notarial acts can give a valid title for enforcement, provided that they are in "public" form. </span></strong>An example : A German contract for the purchase of land must be entered into in the form of a Notarial "public" act, and in the document, the parties can submit to enforcement in the event of default by either party. If the buyer defaults in payment, the seller can enforce in Germany his rights against the buyer without recourse to the Courts, as the contract operates as an acknowledgment of indebtedness by the buyer. Supposing the buyer has moved to, say, England, then the Regulation provides for the acknowledgment to be directly enforced in England, subject to the procedures laid down in the Regulation, i.e. <em><strong><span style="color:#ff0000;">a certificate of enforceability (Annex VI) by the German Notary</span></strong></em> (as the "competent authority", within Art. 57.4, of the Member State of origin), <em><strong><span style="color:#ff0000;">followed by a certificate of enforceability by the "court or competent authority"</span></strong></em> (Art. 57.1) in England, i.e. the High Court of Justice (Annex V). <strong><span style="font-size:130%;">It is clear from the prescribed form of the Notary's Annex VI certificate, which refers to "creditor" and "debtor", that the enforcement can only be in relation to a liquidated, i.e. already ascertained, sum of money, such as would otherwise be the subject of a debt action if Court proceedings were required</span></strong>. </div><br /><br /><strong><em><span style="font-size:130%;">Such cross-border enforceability of Continental European contracts could be used in almost any contractual situation,</span></em></strong> i.e. in addition to those cases specifically prescribed by national law (such as real estate transactions in Germany), <strong><em><span style="font-size:130%;">provided that the contract is entered into in Notarial "public" form</span></em></strong>.<br /><br /><br /><div align="justify"><strong><span style="font-size:180%;color:#ff0000;">There can be no doubt that "civil-law" EU Notaries will increasingly seek to apply in other EU jurisdictions, including England and Wales, enforcement provisions contained in their own Notarial acts</span></strong>, through the simple device of drawing up contractual documents in Notarial "public" form. </div><br /><div align="justify"><br />Art. 57.1 requires that the document be "formally drawn up or registered as an authentic instrument". While the term "formally" is also not defined in the Regulation, <strong><span style="font-size:180%;">it is simply taken for granted by "civil-law" jurisdictions that Notarial acts drawn up in "public" form come within the Regulation, even though the word "Notary" does not appear in the Regulation</span></strong>. </div><p> </p><p> </p><p align="justify">As mentioned above, <strong><span style="font-size:180%;color:#ff0000;">the term "authentic instrument" has little or no meaning in "common-law" jurisdictions, such as England and Wales, whose legal culture has been based since the </span></strong><a href="http://www.bl.uk/treasures/magnacarta/magna.html"><strong><span style="font-size:180%;color:#ff0000;">Magna Carta of 1215</span></strong></a><strong><span style="font-size:180%;color:#ff0000;"> on the principle of "due process of law", i.e. on the determination of legal rights and obligations by the Courts</span></strong>. Our <a href="http://www.opsi.gov.uk/acts/acts1998/19980042.htm">Human Rights Act 1998</a>, which incorporates into UK law the <a href="http://www.echr.coe.int/Convention/Convention%20countries%20link.htm#CONVENTION%20EUROPEENNE%20DES%20DROITS%20DE%20L">European Convention on Human Rights</a> ("ECHR"), can therefore be seen as a formal statutory codification of a centuries-old legal and social principle. <a href="http://www.opsi.gov.uk/acts/acts1998/80042--d.htm#sch1"><em><strong><span style="font-size:130%;">Art. 6 ECHR</span></strong></em></a><em><strong><span style="font-size:130%;"> states : "In the determination of his civil rights and obligations..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law".</span></strong></em> <strong><span style="font-size:180%;color:#ff0000;">The often-cited advantage of an enforceable Notarial "public" act is that it avoids the necessity for Court proceedings, however it is precisely this "advantage" which makes it vulnerable to attack under Art. 6 ECHR</span></strong>. It may well be that the debtor has the right to have enforcement stayed and/or amended or revoked by application to the Court in the original Member State, but this is an entirely separate right to that guaranteed by Art. 6 ECHR, which requires that the determination of the obligation is itself effected by due process of law, i.e. by a Court.<br /></p><div align="justify"><br /><strong><span style="font-size:130%;">The Courts in the UK are increasingly extending the application of the Human Rights legislation and principles into areas which involve property and commercial issues.</span></strong> <em><strong><span style="font-size:130%;">Art. 57.1 of the Regulation states that the court with which an appeal is lodged against the decision on an application for a declaration of enforceability shall refuse or revoke such a declaration only if enforcement of the instrument is "manifestly contrary to public policy" in the Member State addressed</span></strong></em>. </div><br /><br /><div align="justify"><strong><span style="font-size:180%;color:#ff0000;">It is submitted that our Courts will probably hold that a prima facie breach of Art. 6 ECHR renders the enforcement of Notarial "public" acts "manifestly contrary to public policy", i.e. on the basis that such acts purport to create extra-judicial remedies. </span></strong></div><br /><div align="justify"><br />It is even possible that Notarial acts containing enforcement provisions might not be enforceable at all in any EU jurisdiction which has incorporated the ECHR into its own national legislation. In any event, we will have to wait and see how the Courts, both here and in other EU jurisdictions, will seek to strike the right balance between commercial practicalities and reciprocity within the European single market, on the one hand, and the consistent upholding of human rights throughout the European Union, on the other hand. Gregory Taylor [Notary Public, Greater London] </div><br /><div align="justify">-------------------------------------------------------------------------------------------------<br /><br /><a href="http://www.notaries.org.uk/articles/articles/notaries_in_england_and_wales.html">http://www.notaries.org.uk/articles/articles/notaries_in_england_and_wales.html</a><br /><br /><strong><span style="font-size:130%;">NOTARIES IN ENGLAND AND WALES<br /></span></strong><br /><br />BY <a href="mailto:gisela@giselashaw.com">PROF. GISELA SHAW</a><br /><br />(2004)<br /><br /><br /><strong><span style="font-size:130%;">THE OLDEST LEGAL PROFESSION IN ENGLAND (1)</span></strong> </div><br /><div align="justify"><br /><strong>The profession of notary, the roots of which go back to ancient Rome, is arguably the oldest legal profession in England</strong>. With the spread in the Middle Ages of Roman civil law to countries north of the Alps, notaries found a place in continental Europe’s non-contentious jurisdictions. Their licences to practise, granted by the Pope or by the Holy Roman Emperor respectively, were not restricted to specific territories, and their instruments freely crossed national frontiers. A number of notaries, both ecclesiastical and imperial, also reached England. <strong>Since 1279, it has been the </strong><a href="http://www.archbishopofcanterbury.org/"><strong>Archbishop of Canterbury</strong></a><strong> who has appointed notaries in England, initially by authorisation of the Pope and the Emperor respectively, then, from 1533, by authorisation of the English Crown</strong>. <em><strong>A Court of Faculties, one of the oldest of the English courts (now located next to Westminster Abbey in London), was set up by the Crown and attached to the Archbishop of Canterbury, to deal with the practice of such appointments. The Court is presided over by the </strong></em><a href="http://www.facultyoffice.org.uk/Page2.html"><em><strong>Master of the Faculties</strong></em></a><em><strong> who is the most senior ecclesiastical judge and commonly also a judge of the Supreme Court</strong></em>. This system has been in place for almost 500 years. In England, notaries never attained the same prominence as they did in the continental European jurisdictions based on Roman law. <strong><span style="font-size:130%;">As common law, with its preference for lay judges and oral testimony over trained lawyers and documentary evidence, increasingly replaced Roman law, the need for notaries began to diminish</span></strong>. The last major blow came in the 19th century with the transfer to the common law courts of the bulk of the business of the last two courts to apply Roman law, i.e. the Court of the Admiralty and the ecclesiastical courts. </div><br /><br /><div align="justify"><strong>Nevertheless, notaries in England and Wales have survived to this day as a separate legal profession.</strong> They even survived repeated take-over bids on the part of the <a href="http://www.lawsociety.org.uk/home.law">Law Society</a>, the last of these in 1884, thanks to the lobby of the powerful group of London Scrivener notaries (in 1884, 33 of a total of 48), then as now members of the London <a href="http://www.scriveners.org.uk/">Worshipful Company of Scriveners</a> founded in 1373. In contrast to their colleagues outside London whose notarial workload was not sufficient to enable them to practise exclusively as notaries, the <strong><span style="font-size:130%;">London Scrivener notaries had established a strong position in the City of London’s commerce and banking and shipping industries. A geographically defined monopoly in and around the City of London shielded them from competition by general (solicitor) notaries from across the rest of the country, and was repeatedly reaffirmed by Parliament, most recently in 1990</span></strong>. </div><br /><br /><div align="justify"><strong><span style="font-size:130%;">THE PROFESSION TODAY (2)</span></strong> </div><br /><div align="justify"><br /><strong><em>Between the middle of the 19th and the latter part of the 20th century, nothing much changed for notaries in England and Wales.</em></strong> The world at large, including the world of politics and law, had totally forgotten that they existed. Change began with <strong><span style="font-size:130%;">the </span></strong><a href="http://www.opsi.gov.uk/acts/acts1990/Ukpga_19900041_en_1.htm"><strong><span style="font-size:130%;">Courts and Legal Services Act of 1990</span></strong></a>. A watershed for the legal professions in England and Wales generally, the Act <strong><span style="font-size:130%;">actually contained a brief reference to notaries - the first since the Bills of Exchange Act of 1882. Its </span></strong><a href="http://www.opsi.gov.uk/acts/acts1990/Ukpga_19900041_en_3.htm#mdiv57"><strong><span style="font-size:130%;">section 57</span></strong></a><strong><span style="font-size:130%;"> removed two barriers to competition amongst notaries outside London: first, notaries ceased to be appointed to practise only within particular districts in England or Wales and were now able to settle and practise anywhere outside London; secondly, the apprenticeship system for notaries practising outside London was abolished, to be replaced by a meritocratic system based on national training qualifications</span></strong>, the details to be defined by the Master of the Faculties. At the same time, <em><strong><span style="font-size:130%;">however, the Act expressly re-affirmed the geographical monopoly accorded to the Scrivener notaries in London, as well as their power to control their own separate system of training and access to their branch of the profession. </span></strong></em></div><br /><br /><div align="justify">Having once again escaped state interference, the Scriveners in London continued to keep themselves at some distance from their provincial colleagues in England and Wales, while strengthening their bonds with notaries in the civil-law world, and only they enjoyed full membership in the <a href="http://www.uinl.net/">International Union of Latin Notaries (UINL)</a>. Eventually, even the Scriveners were caught up in the government’s campaign to liberalise the legal services market. In a first step, they lost their autonomy over training and access to their branch of the profession, when in 1998 the Public Notaries (Qualification) Rules of 1991 for notaries outside London were replaced by more comprehensive and detailed <a href="http://www.facultyoffice.org.uk/Notaries4.16.html">Notaries (Qualification) Rules</a> encompassing the profession as a whole. The second step came in the form of <a href="http://www.opsi.gov.uk/acts/acts1999/90022--c.htm#53">section 53 of the Access to Justice Act of 1999</a>, and since then, the Scriveners have been subject to the same professional regulations as their colleagues across England and Wales.(3) </div><br /><br /><div align="justify"><strong><span style="font-size:130%;">As the European market and the opportunities it offered have become ever more real, both groups within the profession have increasingly focused their ambition on narrowing the gap that separated them from their colleagues in the civil-law world</span></strong>. In particular, the <a href="http://www.thenotariessociety.org.uk/">Notaries’ Society</a> has developed its keen interest in and commitment to the reform of notarial training within the framework of the new Notaries Qualification Rules, as well as to the promotion amongst its members of professionalism, solidarity, corporate identity and awareness of developments in the other Member States of the European Union. In 1991, the Society set up a magazine, "The Notary", as a first channel of communication, information and discussion amongst its membership. In 1999, this was complemented by an e-mail discussion group “Notary Talk”, created by one of its members. <strong><span style="font-size:130%;">Since 1992, the UK Notarial Forum has provided representatives of notarial organisations in England and Wales, Scotland and Northern Ireland with an opportunity for regular meetings and exchange of views</span></strong>. <em><strong><span style="font-size:130%;">In 1998, the Notaries’ Society’s efforts were rewarded by its being granted observer status with the International Union of Latin Notariats (UINL).</span></strong></em> </div><br /><div align="justify"><br />A part-time distance-learning <a href="http://www.cont-ed.cam.ac.uk/LegalStud/Notarial/">Diploma Course in Notarial Practice</a> has been offered since 1999 by the University of Cambridge. After 5 years of operation, 74 awards had been made. A critical review conducted in 2004 resulted in major adjustments, most of them aimed at ensuring greater academic rigour and respectability. The programme was raised to postgraduate level and the range of modules offered reduced to the 3 core subjects (Roman law, international private law, and notarial practice), therefore requiring all successful applicants to hold a degree in law. Assessment regulations were tightened and the maximum period allowed for completion reduced from 5 to 2 years. <em><strong>The training for all newly qualifying notaries in England and Wales has thereby broadly been put on a par with that for other lawyers within England and for the legal professions (including notaries) within the European Union at large.</strong></em> </div><br /><br /><div align="justify"><strong><span style="font-size:130%;">THE FUTURE</span></strong> </div><br /><div align="justify"><br /><strong>Prospects for members of the profession who are not Scriveners (currently a total of around 800) are better now than they have been for a long time</strong>. Rising demand for their services results in an improvement of their income as notaries rather than as solicitors, with some 60 of them having already taken the decision to work as notaries-only. The first ever survey of the profession of notaries in England and Wales, which was commissioned in 2002 by the Notaries’ Society, clearly reflects this trend. It also shows that <em><strong>numbers are falling due to a significant retirement element, presenting the prospect of significant changes in the profession’s age and qualification profiles</strong></em>, as well as benefits in terms of experience and incomes for those remaining in the profession.</div><br /><br /><div align="justify"><strong><span style="font-size:130%;">Two major challenges are facing the profession as a whole, one national, the other international.</span></strong> </div><br /><br /><div align="justify"><span style="font-size:130%;"><em><strong>First</strong></em>,</span> there is <span style="font-size:130%;"><strong>the <span style="font-size:100%;">possible effect of the report by Sir David Clementi following his Review of the Regulatory Framework for Legal Services in England and Wales</span></strong><span style="font-size:100%;">. </span><strong>The </strong></span><a href="http://www.legal-services-review.org.uk/"><strong><span style="font-size:130%;">Clementi Report</span></strong></a><span style="font-size:130%;"><strong>, submitted in December 2004</strong>,</span> acknowledged that the notarial profession already distinguishes between regulatory and representative functions (a distinction lacking in the case of the Law Society), but <strong><span style="font-size:130%;">proposes a transfer of regulatory powers from the Archbishop of Canterbury to an overarching Legal Services Board (LSB).</span></strong> Should the government decide to implement this proposal, this <em><strong><span style="font-size:130%;">would spell not only the loss of the last symbol of notaries’ historical exclusivity, but</span></strong> </em><strong><span style="font-size:130%;"><em>may also bring about the end of their separate and distinct existence as a profession</em>. </span></strong></div><br /><br /><div align="justify">The <em><strong><span style="font-size:130%;">second </span></strong></em>major challenge stems from <strong><span style="font-size:130%;">the European Commission’s campaign to liberalise and harmonise the liberal professions within the European Union</span></strong>. While notaries in England and Wales, being already as liberalised as far as is possible, have themselves nothing directly to fear, their assessment of the situation differs markedly, depending on their own professional aspirations. </div><br /><br /><div align="justify">There are those who voice concern that <strong><span style="font-size:130%;">a weakening of the status of civil-law notaries on the Continent could indirectly damage their status within England and Wales</span></strong>, and <em><strong><span style="font-size:130%;">there are others intent on lobbying in Strasbourg and Brussels in favour of the abolition of monopolies enjoyed by notaries in EU civil-law jurisdictions</span>, <span style="font-size:130%;color:#ff0000;">most specifically resulting from the nationality requirement imposed by many Member States</span></strong></em>.(4) It is unlikely that, in the short- and even mid-term, the bulk of notaries in England and Wales will find themselves personally and directly affected by these wider developments around them. What is likely to undergo significant change, however, is the shape and feel of the profession as a whole and its standing in the national and international communities of lawyers. </div><br /><br /><div align="justify"><strong><span style="font-size:130%;">FOOTNOTES:</span></strong><br /><br /><br />1. C. W. Brooks, R. H. Helmholz, P. G. Stein, Notaries Public in England and Wales since the Reformation, Norwich: Erskine Press, 1991; N. P. Ready (ed.), Brooke’s Notary, 11th ed., London: Sweet & Maxwell, 1992 (first ed. by Richard Brooke in 1839).<br /></div><br /><br /><div align="justify">2. Gisela Shaw, ‘Notaries in England and Wales: modernising a profession frozen in time’, International Journal of the Legal Profession. Vol. 7, no. 2, 000, 141-155. </div><br /><br /><div align="justify">3. For a detailed account of the background to these changes, see Mark Kober-Smith, "Legal Lobbying. How to Make Your Voice Heard", London, Sydney: Cavendish Publishing, 2000.<br /></div><br /><br /><div align="justify">4. Only Italy, Spain and Portugal promised to withdraw the nationality requirement to avoid being caught up in the formal warning issued by the EU Commission in November 2000. – Gisela Shaw, ‘The German notariat and the European challenge’, International Journal of the Legal Profession, vol. 10, no. 1, 2003, 37-54. </div><br /><div align="justify">-------------------------------------------------------------------------------------------------<br /></div><br /><div align="justify"><a href="http://www.lawsociety.ie/Gazette/May2000.pdf">http://www.lawsociety.ie/Gazette/May2000.pdf</a><br /><br /><strong><span style="font-size:130%;">Law Society Gazette (May 2000)<br /></span></strong><br /><br />Brussels convention<br /><br /><br />Case C-260/97 <em>Unibank A/S v Flemming G Christensen</em>, judgment of 17 June 1999. In Denmark, written acknowledgements of indebtedness can be acted on in the same manner as a judgment, provided that they contain an express provision to that effect. Christensen, a Danish resident, had signed three such acknowledgements in favour of Unibank. The documents stated that they could be used as a basis for execution. <strong><span style="font-size:130%;">The ECJ was asked whether an enforceable acknowledgement of indebtedness, drawn up without the involvement of a public authority, was an authentic instrument within the meaning of article 50</span></strong>. <em><strong>The court held that as the instruments under article 50 were enforced under the same conditions as judgments, the authentic nature of such instruments had to be established beyond dispute so that the court enforcing the instruments can rely on their authenticity</strong></em>. <strong><span style="font-size:180%;color:#ff0000;">Instruments drawn up between private individuals are not inherently authentic.</span></strong> <em><span style="font-size:130%;color:#ff0000;"><strong>The involvement of a public authority or any other authority empowered for that purpose by the state of origin is necessary to endow them with the character of authentic instruments</strong></span></em>. The Jenard/Möler report on article 50 of the Lugano convention supports this interpretation. (p. 49) </div>ITSSD Charitable Missionhttp://www.blogger.com/profile/00790887154748866904noreply@blogger.com4tag:blogger.com,1999:blog-7037944389322160928.post-50230779152809135242008-11-26T06:08:00.000-08:002008-12-01T06:35:35.843-08:00It's Time America Begins Looking at Three-Dimensional Foreign Trade Barriers Without Rose-Colored Glasses<div align="justify"><a href="http://www.ft.com/cms/s/0/3e6a2afa-ac0b-11dd-aa46-000077b07658.html?nclick_check=1">http://www.ft.com/cms/s/0/3e6a2afa-ac0b-11dd-aa46-000077b07658.html?nclick_check=1</a><br /><br /><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgNzeu9JKW6wiWbdu3Q42aZKbDg8J9MsGd6RKiWU-omQ9WhmXRuX0BPdBHHWwjIQCQ_HBFKP0shk3C065QdW4TGfwg_L-nBg4ZAEbZxOumfA4vBjKvkK1I8-S8ODsU75sN42V15I9L0vVrq/s1600-h/no+rose-colored+glasses.jpg"><img id="BLOGGER_PHOTO_ID_5272990936319391890" style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 320px; CURSOR: hand; HEIGHT: 276px" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgNzeu9JKW6wiWbdu3Q42aZKbDg8J9MsGd6RKiWU-omQ9WhmXRuX0BPdBHHWwjIQCQ_HBFKP0shk3C065QdW4TGfwg_L-nBg4ZAEbZxOumfA4vBjKvkK1I8-S8ODsU75sN42V15I9L0vVrq/s320/no+rose-colored+glasses.jpg" border="0" /></a><strong><span style="font-size:130%;">America needs a bipartisan coalition on trade</span></strong><br /><br /><br />Leo Hindery and Shanker Singham<br /></div><div align="justify"> </div><div align="justify">Financial Times</div><div align="justify"><br /><br />November 6, 2008<br /><br /><br /><em><strong><span style="font-size:130%;">In the past 15 years we have seen the almost complete unravelling of the bipartisan coalition on trade policy that once productively defined the modern free trade movement in the US. For many in each political party, this unravelling is welcome – progressives believe there has been too much wage stagnation and offshoring of jobs; conservatives that US companies have faced too much opposition to their international growth. Yet without another bipartisan coalition, the prospects for negotiating further trade barrier reductions around the world will be dim.</span></strong></em><br /><br /><br />While the two of us approach trade from different political persuasions, we agree that <strong>America’s trade deals need to follow three principles.</strong> They must provide clear and measurable benefits for American workers; they must be explicitly designed also to lift up workers around the world, which is the right thing to do morally and economically; and they must be realistic about country differences in terms of the rule of law and state of development – that is, one size does not fit all when it comes to trade policy.<br /><br /><br />We also agree that there are at least four planks on which the administration of Barack Obama, Congress, labour and business should have consensus.<br /><br /><br /><strong><span style="font-size:180%;">First, that trade liberalisation, if fairly carried out, continues to hold enormous promise for the world’s poor and for companies and workers, including American workers.<br /></span></strong><br /><br /><strong><span style="font-size:180%;">Second, that trade liberalisation is not fairly carried out if countries are allowed to distort markets through public sector restraints on trade, illegal subsidies or the anti-competitive operation of state-supported enterprises.<br /></span></strong><br /><br /><strong><span style="font-size:180%;">Third, that businesses must have maximum protection for their physical and intellectual property.<br /></span></strong><br /><br /><strong><span style="font-size:180%;">Fourth, that the US needs to invest substantial resources in clean energy, education and infrastructure to ensure that we keep our competitive edge and that our workers have the skills they need to fill the jobs of the future.<br /></span></strong><br /><br />In the world today, there are two sets of business and trade rules. One set resides in the developed countries, such as the US and Europe, where companies compete largely on the basis of business acumen. <a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgEcBpPb3uwDnGb0Npmjz7j8ZRP4dIhgoKO6Pjt5SO4ht7SoLEOrrS66mKskB9aynZdHPe5YeW20QaQs8GwfmQFRQJNms-5hkHgSglE0SKhfiAyMq5DJrwdZNzG7o4_PGoxJGicN6-899TI/s1600-h/three-dimensional+chess.jpg"><img id="BLOGGER_PHOTO_ID_5272984538976018994" style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 400px; CURSOR: hand; HEIGHT: 320px" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgEcBpPb3uwDnGb0Npmjz7j8ZRP4dIhgoKO6Pjt5SO4ht7SoLEOrrS66mKskB9aynZdHPe5YeW20QaQs8GwfmQFRQJNms-5hkHgSglE0SKhfiAyMq5DJrwdZNzG7o4_PGoxJGicN6-899TI/s400/three-dimensional+chess.jpg" border="0" /></a><strong><span style="font-size:180%;">The other set resides in the world’s largest emerging markets, where national champions are chosen to be global competitors and the full power of the state is deployed to assist and sometimes own them. US workers are suffering because our open competition approach is being swamped by some of our competitors’ more mercantilist, often <span style="color:#ff0000;">unfair</span> and sometimes <span style="color:#ff0000;">even illegal</span> practices.<br /></span></strong><br /><br /><strong><em><span style="font-size:130%;">Emerging market countries, especially Brazil, Russia, India and China (the Brics), and some Asian countries, have economic policies to retain and improve the quality of their existing jobs and induce foreign corporations to shift production facilities and technology to them. Faced with these practices, foreign companies cannot be successful on their merits, even when they are given so-called “market access”.<br /></span></em></strong><br /><br /><strong><span style="font-size:180%;">It is imperative – way past time, in fact – for America to be as aggressive in defending its economic interests as our trading partners are in advancing theirs. Specifically, the US trade representative should supplement the annual survey of foreign country trade barriers to include market distortions of any sort. Also, the World Trade Organisation must confront market distortions as aggressively as it addresses tariffs and other border measures and it must enforce vigorously our trade agreements, including demanding “parity of enforcement” among all parties.<br /></span></strong><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgs-ei3cBKk4x8iJQab9kBhjjGkU7qnHCnNhpMfSCIeJZYC1VdA7yta2NHHVbOQbjEmiUG-98N6EN-ifAyaluT6wEemH_aJFJd5tavlXbfQLVZj5-h9HnMx9-04pM1ExjLKLkns6BmnzNQt/s1600-h/carrot-stick.jpg"><img id="BLOGGER_PHOTO_ID_5272982200624128402" style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 320px; CURSOR: hand; HEIGHT: 320px" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgs-ei3cBKk4x8iJQab9kBhjjGkU7qnHCnNhpMfSCIeJZYC1VdA7yta2NHHVbOQbjEmiUG-98N6EN-ifAyaluT6wEemH_aJFJd5tavlXbfQLVZj5-h9HnMx9-04pM1ExjLKLkns6BmnzNQt/s320/carrot-stick.jpg" border="0" /></a><br /><br /><strong><span style="font-size:180%;">Domestically, we must encourage new jobs through enlightened corporate tax policies and stop encouraging the offshoring of millions of US jobs through misguided ones.</span></strong> Also, by eliminating the tax deferral incentives for corporations to relocate production overseas, we can mitigate government complicity in aiding offshoring.<br /><br /><br /><strong><span style="font-size:180%;">Finally, we should cut taxes for all US manufacturers and give tax credits to US companies that invest in the skills of American workers, in research and development for jobs here at home, and in new machinery, equipment and software.<br /></span></strong><br /><br /><em>Leo Hindery Jr is a Democratic party trade and economic policy adviser and chairs the Smart Globalisation Initiative at the New America Foundation. He is managing partner of a media industry private equity fund. Shanker Singham was a senior trade adviser to Republican presidential candidate Mitt Romney. He is chair of the International Round Table on Trade and Competition Policy, and leads the Market Access/WTO group of Squire, Sanders & Dempsey </em></div>ITSSD Charitable Missionhttp://www.blogger.com/profile/00790887154748866904noreply@blogger.com0tag:blogger.com,1999:blog-7037944389322160928.post-19388938886438515852008-11-23T07:22:00.000-08:002008-11-23T09:07:41.663-08:00APEC Members Pledge Effort to Avoid Trade Protectionism: Are President-elect Obama and the US Congress Listening??<a href="http://www.smh.com.au/news/world/apec-leaders-vow-to-stick-with-free-markets/2008/11/23/1227375062156.html">http://www.smh.com.au/news/world/apec-leaders-vow-to-stick-with-free-markets/2008/11/23/1227375062156.html</a><br /><br /><br /><strong><span style="font-size:130%;">APEC leaders vow to stick with free markets<br /></span></strong><br /><br /><br /><br />Mark Davis Political Correspondent in Lima<br /><br /><br /><br />The Sydney Morning Herald<br /><br /><br /><br />November 24, 2008<br /><br /><br /><div align="justify"><br />ASIA-PACIFIC political leaders have promised not to resort to protectionism as the world's economies slow sharply in coming months after hearing a strong plea from the outgoing US President, George Bush, to maintain their commitment to free markets despite the global financial turmoil.<br /></div><br /><br /><br /><div align="justify">In a statement last night, the leaders of the 21 member economies of the Asia-Pacific Economic Co-operation forum also agreed to the recovery plan endorsed a week earlier by the G20 grouping, which calls on governments to stimulate their economies to insulate them from the global slowdown. </div><br /><br /><div align="justify"><strong><span style="font-size:180%;color:#ff0000;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgXNszeFGPS0AzdaoumU7FNtCDwR3DTbByOO0ui1xIUmm04Tfbtq0SHE4D4sWTYF5nEsZqls-rrdCvEHX27bm-24S4_kyp_pyJ6NK0EMLGkViQxkuy0Uaj0eCifvcRJP4k4SJqBpElqL-gj/s1600-h/fortress+europe+-+eu+protectionism.jpg"><img id="BLOGGER_PHOTO_ID_5271884160563471762" style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 217px; CURSOR: hand; HEIGHT: 270px" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgXNszeFGPS0AzdaoumU7FNtCDwR3DTbByOO0ui1xIUmm04Tfbtq0SHE4D4sWTYF5nEsZqls-rrdCvEHX27bm-24S4_kyp_pyJ6NK0EMLGkViQxkuy0Uaj0eCifvcRJP4k4SJqBpElqL-gj/s320/fortress+europe+-+eu+protectionism.jpg" border="0" /></a>The Prime Minister, Kevin Rudd, joined his counterparts from the US and China in pressing hard for the annual APEC summit to make a commitment in favour of free trade because of concerns that a revival of protectionism could turn the global financial meltdown into a deep recession as occurred in the 1930s.</span></strong></div><br /><br /><br /><div align="justify">Australian officials attending the summit in Lima, Peru, said the APEC statement was significant because it extended the commitment to the G20's Washington Declaration to the 11 APEC countries that are not also members of the G20 group.</div><div align="justify"></div><div align="justify"><br /><span style="font-size:180%;color:#ffcc00;"><strong><a href="http://tk.files.storage.msn.com/x1pc_jqddVOWRmJNAnQFk_mHGp8m12EI-NxYsmEHZ4jmb1bH9J1Jc-FURRLwk25RyJWC8RXC-pGoifCuSJ5UUA8_wKuukR1reK61kaYUOFSwEmgiloxqYthh_fvwcf9gAwBANDd7zLOy2A"><img style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 208px; CURSOR: hand; HEIGHT: 270px" alt="" src="http://tk.files.storage.msn.com/x1pc_jqddVOWRmJNAnQFk_mHGp8m12EI-NxYsmEHZ4jmb1bH9J1Jc-FURRLwk25RyJWC8RXC-pGoifCuSJ5UUA8_wKuukR1reK61kaYUOFSwEmgiloxqYthh_fvwcf9gAwBANDd7zLOy2A" border="0" /></a>They said the language of the APEC leaders' statement was even stronger than the Washington Declaration because it gave a "commitment" to achieve a break-through by the end of the year in the Doha round of multilateral trade talks, which aim to free up trade in agricultural products, manufactured goods and services.<br /></strong></span><br /></div><div align="justify"><strong><span style="font-size:180%;">The statement acknowledged that in many countries, slowing economic growth would lead to political pressure to erect trade barriers to protect local companies but said protectionist measures would only worsen the economic situation. <span style="color:#33ff33;">"We strongly support the Washington Declaration and will refrain within the next 12 months from raising new barriers to investment or trade in goods and services [and from] imposing new export restrictions," it said.<br /></div></span></span></strong><br /><br /><div align="justify"><strong><span style="font-size:180%;color:#3333ff;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEimWkbUS6g1lgQLXmH2VrNG17aHcy6dWCQg3dR8NEtPlxTv1Vh3y4g9FujNEYNRMKhLSnLcUKibrtBWT72-8XhVfqAcGJPhkbIrQsdwf58iCFgPWgZKhXDq24Y8WcoWarVXGCvoM6d7dija/s1600-h/fortress+europe+III.jpg"><img id="BLOGGER_PHOTO_ID_5271884874935697106" style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 320px; CURSOR: hand; HEIGHT: 229px" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEimWkbUS6g1lgQLXmH2VrNG17aHcy6dWCQg3dR8NEtPlxTv1Vh3y4g9FujNEYNRMKhLSnLcUKibrtBWT72-8XhVfqAcGJPhkbIrQsdwf58iCFgPWgZKhXDq24Y8WcoWarVXGCvoM6d7dija/s320/fortress+europe+III.jpg" border="0" /></a><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhNy9_xt_GqoEKP-pDBJqApckUZtN6l9qP1lbULBXQd4p0ctvB7qLNG-m6xMRWyvxUKUc6c1sHmnKhlvFT-6nS2Xn9biOXB0YhQc1y-02GoyP6cJwLNUL7SVCLKsO15sp5zMJwRdzmhbpBJ/s1600-h/fortress+europe+I.jpg"><img id="BLOGGER_PHOTO_ID_5271884757020580642" style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 150px; CURSOR: hand; HEIGHT: 188px" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhNy9_xt_GqoEKP-pDBJqApckUZtN6l9qP1lbULBXQd4p0ctvB7qLNG-m6xMRWyvxUKUc6c1sHmnKhlvFT-6nS2Xn9biOXB0YhQc1y-02GoyP6cJwLNUL7SVCLKsO15sp5zMJwRdzmhbpBJ/s320/fortress+europe+I.jpg" border="0" /></a>Australian officials believe <em><span style="color:#33ff33;">the pro-free trade statement will send a message to the US president-elect Barack Obama,</span></em> who will ultimately, with <span style="color:#000099;">the European Union</span> and the developing countries of Brazil, India and China, be the big players in securing a new free trade deal in the Doha talks.<br /></div></span></strong><br /><br /><div align="justify"><strong><span style="font-size:130%;"><span style="font-size:180%;">[</span>See, e.g.: <em>Congressman Rangel and Other House Ways & Means Committee Majority Members Provide Political Cover for Clinton & Obama to Promote Trade Protectionism</em>, ITSSD Journal on Disguised Trade Barriers, at:</span> </strong><a href="http://itssddisguisedtradebarriers.blogspot.com/2008/04/house-ways-means-committee-chairs-play.html"><strong>http://itssddisguisedtradebarriers.blogspot.com/2008/04/house-ways-means-committee-chairs-play.html</strong></a><strong> <span style="font-size:180%;">];</span></strong></div><div align="justify"></div><div align="justify"></div><div align="justify"><strong><span style="font-size:130%;"><span style="font-size:180%;">[</span>See, e.g.: <em>Trade Expert Criticizes Obama & Blue Party's Prescription for Economic Change: Adoption of the European Trade Strategy Known as 'Export-Protectionism'</em>, ITSSD Journal on Disguised Trade Barriers, at:</span> </strong><a href="http://itssddisguisedtradebarriers.blogspot.com/2008/09/trade-expert-criticizes-obama-blue.html"><strong>http://itssddisguisedtradebarriers.blogspot.com/2008/09/trade-expert-criticizes-obama-blue.html</strong></a><strong> <span style="font-size:180%;">];</span></strong><br /></div><div align="justify"></div><div align="justify"></div><div align="justify"><strong><span style="font-size:130%;"><span style="font-size:180%;">[</span>See, e.g.: <em>Africa Suffers From European Protectionism Yet Again: Is This What EURObama's Embedded Carbon/ Carbon Tariff-Focused US Trade Policies Would Achieve?, </em>ITSSD Journal on Disguised Trade Barriers, at:</span> </strong><a href="http://itssddisguisedtradebarriers.blogspot.com/2008/09/africa-suffers-from-european.html"><strong>http://itssddisguisedtradebarriers.blogspot.com/2008/09/africa-suffers-from-european.html</strong></a><strong> ]<span style="font-size:180%;">;</span></strong><span style="font-size:180%;"> </span></div><div align="justify"></div><div align="justify"></div><div align="justify"><strong><span style="font-size:180%;">[</span><span style="font-size:130%;">See, e.g.: <em>Princeton University Global Governance Advocate Calls for New Wave of American Regulatory Socialism in the Image of European Protectionism</em>, ITSSD Journal on Disguisted Trade Barriers, at: </span></strong><a href="http://itssddisguisedtradebarriers.blogspot.com/2008/06/princeton-university-global-governance.html"><strong>http://itssddisguisedtradebarriers.blogspot.com/2008/06/princeton-university-global-governance.html</strong></a><strong> <span style="font-size:180%;">];</span></strong></div><div align="justify"></div><div align="justify"></div><div align="justify"><strong><span style="font-size:180%;">[</span><span style="font-size:130%;">See, e.g.: <em>OBAMA-BROWN-MICHAUD Non-Tariff Trade Barrier Act Likely to Devastate US Economy, Trigger a Global Trade War & Endanger World Peace</em>, ITSSD Journal on Disguised Trade Barriers, at: </span></strong><a href="http://itssddisguisedtradebarriers.blogspot.com/2008/06/us-trading-partners-beware-obama.html"><strong>http://itssddisguisedtradebarriers.blogspot.com/2008/06/us-trading-partners-beware-obama.html</strong></a><strong> <span style="font-size:180%;">].</span></strong></div><br /><br /><div align="justify">The APEC summit is likely to be Mr Bush's last international gathering before he hands over to Mr Obama in January. He urged the gathering not to lose faith in free markets and called for an Asia-Pacific region of "free markets, free trade and free people".<br /></div><br /><br /><br /><div align="justify"><strong><span style="font-size:180%;color:#33ff33;">"It is also essential that governments resist the temptation to overcorrect by imposing regulations that would stifle innovation and strangle growth," he said. "One of the enduring lessons of the Great Depression is that global protectionism is a path to global economic ruin."</span></strong><br /></div><br /><br /><br /><div align="justify"><strong><span style="font-size:180%;color:#ff0000;">The financial crisis is widely regarded as the most severe since the stockmarket crash of 1929. Economic historians believe it was the outbreak of "tit for tat" protectionism later which turned that crash into a global depression by stifling trade.<br /></span></strong></div><br /><br /><br /><div align="justify">Earlier yesterday, Mr Rudd and Indonesia's President, Susilo Bambang Yudhoyono, announced their governments would set up a disaster reduction facility in Jakarta to help the region's poorest countries prepare for natural catastrophes.<br /></div><br /><br /><br /><div align="justify">Research commissioned by the two leaders found the Asia-Pacific faced an era of big disasters as urbanisation, climate change and food shortages magnified the effect of events such as earthquakes, volcanic eruptions and storms.<br /></div><br /><br /><br /><div align="justify">An assessment by Geoscience Australia said there were likely to be several disasters each year killing more than 10,000 people and there was great potential for huge catastrophes affecting more than one million people.</div><br /><br /><div align="justify"><br />Mr Rudd said the Government would spend $67 million over the next five years on the disaster reduction facility.<br /></div><br />-------------------------------------------------------------------------------------------------<br /><br /><a href="http://www.msnbc.msn.com/id/27858912/">http://www.msnbc.msn.com/id/27858912/</a><br /><br /><a href="http://www.dfa.gov.ph/images/APEC%20Logo_gif_vertical%5B1%5D.GIF"><img style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 282px; CURSOR: hand; HEIGHT: 162px" alt="" src="http://www.dfa.gov.ph/images/APEC%20Logo_gif_vertical%5B1%5D.GIF" border="0" /></a><strong><span style="font-size:130%;">APEC leaders: No new trade barriers</span></strong><br /><br /><br /><br /><em>President Bush: ‘Global protectionism is a path to global economic ruin’<br /></em><br /><br /><br />The Associated Press<br /><br /><br />updated 10:32 p.m. ET, Sat., Nov. 22, 2008<br /><br /><br /><div align="justify">LIMA, Peru - Leaders who oversee half the world’s economy pledged Saturday to avoid protectionism but shied away from any new proposals on the financial crisis because of somebody who wasn’t there: U.S. President-elect Barack Obama.<br /></div><br /><br /><div align="justify">The 21 leaders endorsed last weekend’s agreement by major world economies to resist domestic pressures to protect industries, while ensuring that small and medium-sized companies have enough credit to stay afloat.<br /></div><br /><br /><div align="justify"><strong><em><span style="font-size:130%;">“We strongly support the Washington Declaration and will refrain within the next 12 months from raising new barriers to investment or to trade in goods and services (and from) imposing new export restrictions,”</span></em></strong> leaders of the Asia-Pacific Economic Cooperation forum said in a joint declaration.<br /></div><br /><br /><div align="justify">They also pledged to reach agreement next month on the outlines of a World Trade Organization pact that collapsed in July after seven years of negotiations. Concern over the global financial crisis injected new urgency into the so-called Doha round of trade talks.<br /></div><br /><br /><div align="justify">The leaders called for greater APEC participation in the International Monetary Fund and other multilateral lenders. Japan said last week it was ready to lend up to $100 billion to the IMF, but </div><br /><br /><div align="justify">China has so far resisted entreaties to dig into its $1.9 trillion in reserves.<br /></div><br /><br />Leaders speak out against protectionismDelegates said, however, that there was little incentive to propose more concrete action without the support of Obama, who takes office in January and did not send representatives to Lima.<br /><br /><br /><div align="justify"><strong><span style="font-size:130%;"><span style="color:#33ff33;">“The next U.S. administration must assume leadership in a very firm manner — not just for Americans but for the whole world,” Mexican President Felipe Calderon said in a speech before heading into closed-door meetings that produced the resolution</span>. </span></strong><br /></div><br /><div><br /></div><div><div align="justify"><strong><span style="font-size:180%;color:#ff0000;">Even people who work for the White House’s outgoing occupant, George W. Bush, acknowledged that tough issues such as a stalled U.S.-South Korea free-trade agreement would likely have to wait.</span></strong><br /></div><br /><br /><div>However, Bush did attempt to persuade allies to secure a North Korea disarmament deal before he leaves office, pushing hard for a late, legacy-shaping win. The White House announced that all nations engaged in the showdown with North Korea would meet in China in early December.<br /></div><br /><br /><div>That nudge in the process alone was a boost to Bush, whose government is eager to lock in an international agreement on how to accurately verify North Korea’s nuclear capabilities.<br /></div><div></div><div align="justify"><strong><span style="font-size:180%;color:#ff0000;">Leader after leader at Saturday's forum spoke out against protectionism, saying it would bring devastating consequences</span></strong>.<br /></div><br /><br /><div align="justify"><strong><span style="font-size:180%;color:#ff0000;">“Companies will go bankrupt and countless jobs will be lost, and poor nations and poor people will suffer the most damage,” South Korean President Lee Myung-bak told business executives. </span></strong></div><strong><span style="font-size:180%;color:#ff0000;"></span></strong><br /><span style="font-size:180%;color:#ff0000;"><div align="justify"><span style="font-size:100%;"></span><span style="font-size:100%;color:#000000;"></span><span style="font-size:100%;"></span><br /><strong>Bush said nations must not respond to the crisis by “imposing regulations that would stifle innovation and choke off growth.”<br /></strong></div></span><div><br /><br /></div><div align="justify"><strong><span style="font-size:180%;color:#ff0000;">“One of the enduring lessons of the Great Depression is that global protectionism is a path to global economic ruin,” he said.</span></strong> </div><div><br /></div><div align="justify"><br /><strong><span style="font-size:130%;color:#ffff00;">Free-trade success stories</span></strong></div><div><br /><br /></div><div align="justify"><strong><em><span style="font-size:130%;color:#ffcc00;">The leaders argued their case with free-trade success stories. Lee, former head of the Hyundai group, said open markets were central to boosting his nation’s per-capita annual income from $100 in the 1960s to $20,000 today. Canadian Prime Minister Stephen Harper said the North American Free Trade Agreement has tripled trade and created 40 million jobs. </span></em></strong></div><div><br /></div><div align="justify"><br />But Nick Reilly, president of General Motors Corp. Asia-Pacific, said the leaders all will face intense pressure at home to protect their most vulnerable markets.<br /></div><div><br /></div><div align="justify"><strong><span style="font-size:180%;">[U.S. GOVERNMENT PROTECTION OF THE U.S. AUTO INDUSTRY WOULD BE UNNECESSARY IF GENERAL MOTORS MANAGEMENT HAD DONE ITS JOB CORRECTLY WHICH IT HAS LONG FAILED TO DO. IF GENERAL MOTORS MANAGEMENT HAS ANY KNOWLEDGE OF THE U.S. & GLOBAL AUTO MARKETS, IT CERTAINLY HAS NOT BEEN REFLECTED IN MOST OF THE PRODUCTS IT HAS MANUFACTURED DURING THE PAST 40 YEARS!! ITS MANAGEMENT HAS REPEATEDLY TAKEN THE U.S. CONSUMER FOR GRANTED AND ASSUMED THE AMERICAN MARKETPLACE WOULD CONTINUE TO ACCEPT <em>LESS</em> THAN MARKET-STANDARD QUALITY PRODUCTS. SUCH MISCALCULATION HAS BEEN VERY COSTLY, AS MANIFESTED MOST RECENTLY WITH THE SUV CRAZE OF THE PAST DECADE. THE ONLY WAY GENERAL MOTORS CAN IMPROVE IS TO OUST ITS CURRENT CROP OF MANAGEMENT EXECUTIVES AND REPLACE THEM WITH NEW OPEN-MINDED ENTREPREURIAL BLOOD. WHILE NOT THE FOCUS OF THIS BLOG ENTRY, THE BUSH ADMINISTRATION AND 110TH CONGRESS ARE 100% CORRECT IN INSISTING THAT GENERAL MOTORS CORPORATION PROVIDE A VIABLE RESTRUCTURING PLAN SUBJECT TO SUBSEQUENT PERIODIC FINANCIAL REVIEWS, THAT WOULD RESULT IN COMPETENT, CAPABLE DECISIONMAKING AND PROFITS IN THE SHORT & LONG TERMS, <em>BEFORE</em> IT COULD BE ELIGIBILE TO RECEIVE U.S. TAXPAYER MONIES. SHOULD THE U.S. GOVERNMENT DECIDE TO ASSIST GENERAL MOTORS CORPORATION, IT WOULD EFFECTIVELY SERVE AS THE FINANCIAL LENDER 'OF LAST RESORT', AND THUS, BE ENTITLED TO BASE ITS LOANS ON STRICT CONDITIONALITIES. 'HE WHO HOLDS THE PURSE, DETERMINES THE RULES'. IF STRUCTURED PROPERLY, THIS SHOULD <em>NOT</em> CONSTITUTE AN ILLEGAL GOVERNMENT SUBSIDIES UNDER WTO RULES. SO, EUROPEAN AUTOMAKERS SHOULD CALM DOWN & TAKE A DEEP BREATH.]</span></strong></div><div><br /></div><div align="justify">“The economies haven’t yet seen the full impact of unemployment hit. So domestically, the leaders are going to be facing that,” Reilly told The Associated Press.<br /></div><div><br /></div><div align="justify"><strong><span style="font-size:180%;color:#ff0000;">Indonesia’s trade minister, Mari Pangestu, told the AP that some protectionist measures are inevitable in the coming year or two. The secret, she said, is to not make them open-ended.<br /></span></strong></div><div><br /></div><div align="justify"><strong><span style="font-size:130%;color:#ff0000;">“You will have to end up protecting particular groups,” Pangestu said in an interview, giving the example of the agriculture sector in Indonesia, which accounts for 60 percent of its 237 million people.</span></strong><br /></div><div><br /></div><div align="justify">Canadian Prime Minister Stephen Harper alluded to the tough decisions ahead when he described his recent re-election in terms that could just as easily apply to Obama.<br /><br /></div><div align="justify">Getting elected these days, he said, “is like winning a vacation to the Caribbean during hurricane season.” </div><div></div><div align="justify"><br /><em>© 2008 The Associated Press</em></div><div align="justify"><em></em></div><div align="justify">------------------------------------------------------------------------------------------------- </div><div align="justify"></div><div align="justify"><a href="http://www.apec.org/apec/enewsletter/nov_vol18/onlinenewsa.html">http://www.apec.org/apec/enewsletter/nov_vol18/onlinenewsa.html</a></div><div align="justify"></div><div align="justify"><strong><span style="font-size:130%;">Perspectives on 2008: A Dialogue With Peru's Ministers</span></strong></div><div align="justify"></div><div align="justify"></div><div align="justify">APEC - E Newsletter</div><div align="justify"></div><div align="justify"></div><div align="justify">Leaders' Week Edition - Vol18, November 2008 </div><div align="justify"></div><div align="justify"></div><div align="justify">In an interview with the APEC Secretariat, Peru's Ministers for Foreign Affairs and Trade shared their priorities for APEC Economic Leaders' Week which will occur in Lima between November 16-23, 2008. As co-chairs of the meeting, they previewed what will be on the agenda and expressed their hope that Ministers would be able to come to agreement on a wide range of issues.<br /></div><div align="justify"><br />Identifying regional solutions to the financial crisis which continues to unfold, bringing together diverse interests to achieve a conclusion for the Doha Development Agenda, and supporting structural reform and capacity building as well as new issues like corporate social responsibility all remain on the agenda.<br /></div><div align="justify"><br /><strong><em><span style="font-size:130%;">Peru's Minister for Trade, Mercedes Araoz and Minister for Foreign Relations, José Antonio García Belaunde, discuss below their perspectives on the issues.</span></em></strong> </div><div align="justify"></div><div align="justify"><br /><strong>APEC E-Newsletter (APEC E):</strong> What are the most important issues Leaders and Ministers will focus on this November?<br /></div><div align="justify"><br /><strong>José Antonio García Belaunde (JAGB):</strong> We are facing the most challenging economic circumstances that we have seen in decades. Leaders will focus on shaping a regional response to the crisis. A strong economy is fundamental to achieving results in many other areas of the APEC agenda. That will also be discussed by Leaders and Ministers in November.<br /></div><div align="justify"><br /><strong>Mercedes Araoz (MA):</strong> The high level of the Leaders' Meeting creates a great scenario for the discussion of priority issues in the region. On November 22-23, Leaders will discuss the progress towards greater economic integration in the Asia-Pacific region, the current economic situation in the Asia-Pacific as a result of the global financial turmoil; and the important issue of climate change.<br /></div><div align="justify"></div><div align="justify">At the APEC Ministerial Meeting, to be held on 19-20 November, Ministers, will cover the main issues of this year's APEC agenda. Progress on economic integration in the Asia-Pacific region is the most important issue, as we have received from the APEC Economic Leaders in 2007, very specific instructions on how to advance this work in the current year. </div><div align="justify"></div><div align="justify"><br />Another important issue is the progress on APEC's Second Trade Facilitation Action Plan (TFAP II), which by 2010, aims to reduce transaction costs by a further 5%. It is worth noting that APEC is a world leader in trade facilitation.<br /></div><div align="justify"></div><div align="justify">Besides these two issues, it is important to mention the importance of APEC adopting the Investment Facilitation Action Plan during the Ministers Responsible for Trade Meeting held on 31 May - 1 June in Arequipa, Peru; and on progress on behind-the-border reforms, or as it is also known, the Leaders' Agenda on Structural Reform (LAISR).</div><div align="justify"></div><div align="justify"><br /><strong>APEC E:</strong> What impact will the current financial turmoil have on the Asia-Pacific region and what, if there are any plans, does APEC have to address this issue?<br /></div><div align="justify"></div><div align="justify"><strong>MA:</strong> I am afraid that there are going to be very significant impacts in the region and in the world. A generalized reduction in the rate of growth, that I hope will be short lived, could be the most important one for all of us. Trade flows will decrease and credit will tighten. </div><div align="justify"></div><div align="justify"><br />In these dire circumstances, APEC members should reiterate their commitment to open markets and free trade as the best tools to quickly overcome this financial turmoil. <strong>A positive message that APEC could send to the rest of the world could be, for example, a declaration stating that we will not increase our barriers to trade until the financial problem is solved. </strong></div><div align="justify"></div><div align="justify"></div><div align="justify">Another message could be the reiteration of APEC´s strong support for the prompt finalization of the Doha Development Round.<br /></div><div align="justify"></div><div align="justify"><strong>JAGB:</strong> The Asia-Pacific has played a pivotal role in sustaining world economic growth rates over many years and many APEC economies have experienced solid economic growth for over a decade. The problems in the financial markets may soon reach the real economy, consequently impacting on future economic growth. APEC Finance Ministers met in Peru on November 5-6. They analyzed the financial crisis and how to coordinate a response. APEC economies can support the excellent work undertaken by the Financial Stability Forum which is examining how to enhance market and institutional resilience. </div><div align="justify"></div><div align="justify"><br /><strong>APEC E:</strong> Leaders have consistently supported a successful conclusion to the Doha Round. What actions do you expect APEC Ministers and Leaders to take this year to create urgency for concluding these negotiations? </div><div align="justify"></div><div align="justify"></div><div align="justify"><strong>JAGB:</strong> We are very disappointed that it has not been possible to reach an agreement until now. The Round is likely to be complicated by the ongoing political and financial uncertainty. Nevertheless, the WTO has made very good progress so far on many aspects of Doha and we should keep working to achieve a result. </div><div align="justify"></div><div align="justify"><br />MA: I think that all APEC economies are disappointed by the impasse that the Doha Round had reached in July, but we believe in the early revival of negotiations. I am sure that, as APEC, we can work together to achieve an ambitious and balanced outcome of the Round.<br /></div><div align="justify"><br />Since its inception, support for the multilateral trading system has been a key priority in APEC´s work agenda. At this year's APEC Ministers Responsible for Trade Meeting in Arequipa, Peru, we decided to adopt a stand-alone statement to demonstrate our commitment to progress towards an early and successful conclusion of the Doha Round.</div><div align="justify"></div><div align="justify"><br /><strong>APEC E:</strong> Can you discuss the progress made on the priorities that Peru set earlier in the year?</div><div align="justify"></div><div align="justify"></div><div align="justify"><strong>JAGB:</strong> At the beginning of the year, Peru took responsibility for leading the implementation of the APEC agenda set out in the Sydney Declaration of 2007. These priorities included regional economic integration (REI), trade and investment liberalization and structural reform.</div><div align="justify"></div><div align="justify"><br /><strong><span style="font-size:180%;color:#ff0000;">We are especially pleased that we have been able to raise the level of awareness of Corporate Social Responsibility (CSR) within APEC this year. Leaders will be discussing this issue in November. This year's theme for APEC is "A New Commitment to Asia-Pacific Development" and improving levels of CSR in the region promote that goal.</span></strong></div><div align="justify"></div><div align="justify"><br /><strong>MA:</strong> I really believe that this year has been a very successful one because APEC has made great progress on the main 2008 priorities. </div><div align="justify"></div><div align="justify"><br />We have advanced the regional economic integration agenda, including the prospects for a Free Trade Area of the Asia-Pacific (FTAAP).<br /></div><div align="justify"></div><div align="justify">We have continued with the implementation of actions to advance trade and investment liberalization and facilitation: for example, the completion of model measures for RTAs/FTAs, the endorsement of the Investment Facilitation Action Plan, the development of Key Performance Indicators for the Second Trade Facilitation Action Plan and the discussion on the rationalization of rules of origin. </div><div align="justify"></div><div align="justify"><br />We've also been working on strengthening the policy agenda on ECOTECH; especially in the areas of education, small and medium enterprises, tourism, information and communication technologies, anti-corruption and transparency.<br /></div><div align="justify"></div><div align="justify"><strong>APEC E:</strong> For the first time ever, APEC Ministers met to discuss structural reform issues this year. What approaches do you expect APEC to take in order to advance this agenda item? </div><div align="justify"></div><div align="justify"><br /><strong>JAGB:</strong> We all know that implementing structural reforms can be very difficult, but the benefits speak for themselves. APEC can support individual member economies in several ways. </div><div align="justify"></div><div align="justify"><br />The Structural Reform Ministerial Meeting held this year in Melbourne approved a Good Practice Guide on Regulatory Reform. This will help economies to voluntarily review existing regulation and assess the impact of new regulation. Most importantly, ministers agreed to voluntary reviews or self-reviews of member economies' institutional frameworks that support structural reform. I think this process will help economies focus on priority areas for reform and is a good way to exchange information on how to best tackle this challenging area.</div><div align="justify"></div><div align="justify"><br /><strong>MA:</strong> Structural reform must remain at the top of the APEC agenda. We have advanced on the implementation of the Leader's Agenda but further work is necessary. </div><div align="justify"></div><div align="justify"><br />We need to work on strengthening cooperation and coordination between the Economic Committee (those who are in charge of the structural reform issues), the Committee on Trade and Investment and the Finance Ministers' Process, as well as with the private sector. </div><div align="justify"></div><div align="justify"><br />A good step has been the establishment of the APEC Policy Support Unit which will strengthen the capacity of the APEC Secretariat to assist member economies in policy dialogue on structural reform and in strengthening domestic institutions and policies that support the reform process. </div><div align="justify"></div><div align="justify"><br /><strong>APEC E:</strong> What do you think will be Peru's main contributions to the APEC agenda this year?<br /></div><div align="justify"></div><div align="justify"><strong>JAGB:</strong> We have been committed to implementing the decisions made by Leaders last year, <strong><span style="font-size:180%;color:#ff0000;">but additionally this year, Peru wanted to emphasize the social dimension of the APEC agenda with the inclusion of Corporate Social Responsibility</span></strong>, besides other issues such as education, reducing the digital gap, support for small and medium enterprise and joint efforts in anti-corruption matters. Two successful Ministerial meetings in education and in small and medium enterprises have contributed to this cause. </div><div align="justify"></div><div align="justify"><br /><strong><span style="font-size:180%;color:#ff0000;">Regarding corporate social responsibility, Peru is keen to ensure strong compliance with labor and environmental standards but also to involve the private sector in a partnership to ensure sustainable development where they have operations.</span></strong></div><div align="justify"></div><div align="justify"><br /><strong>MA:</strong> We have chaired many meetings, including Sectoral Meetings of Ministers responsible for Trade, Tourism, Small and Medium Enterprises, Education and Finance. </div><div align="justify"></div><div align="justify"><br />In the area of trade and investment, we have assumed a leading role on the discussion of a Free Trade Area of the Asia-Pacific. Peru has conducted a study of existing bilateral and plurilateral free-trade agreements in the region with the aim of increasing knowledge of their similarities and differences, thereby enabling economies to identify possible ways in which the FTAAP concept could be furthered. New Zealand, the United States, Japan and Chile, as well as the IADB, have also contributed to this important activity. Moreover, we are collaborating with Korea and Indonesia on a review of existing analysis relevant to a possible FTAAP and are assessing the need for future work.</div><div align="justify"></div><div align="justify"><br /><strong>APEC E:</strong> In your view, how has APEC made progress on its issues under the theme, "A New Commitment to Asia-Pacific Development?" </div><div align="justify"></div><div align="justify"><br /><strong>MA:</strong> Peru proposed the theme "A New Commitment to Asia-Pacific Development" in order to give APEC the opportunity to work on the social dimension of its agenda. The objective is to encourage initiatives on the social issues that have a substantial influence on the advance towards the goals of trade and investment facilitation. To this end, we have highlighted the role of education in the social and economic development of member economies and have supported the development and modernization of small and medium enterprises.</div><div align="justify"></div><div align="justify"><br /><strong>JAGB:</strong> This theme reflects our approach to bridging the development gap in the region. I consider it essential to show how an open trade and investment policy can make a positive impact on economic development. <strong><span style="font-size:180%;color:#ff0000;">But at the same time, we have to take account of the social dimension of trade, and that is why we have been promoting a greater uptake of corporate social responsibility in the region. </span></strong></div><div align="justify"></div><div align="justify"><br /><strong>APEC E:</strong> How has APEC's capacity building program prepared member economies to better participate in the global economy? </div><div align="justify"></div><div align="justify"><br /><strong>MA:</strong> Capacity building programs are a vital part of the APEC process because they allow capacity to be developed in key priorities areas regarding trade and investment liberalization and economic and technical cooperation. These programs cover a wide range of activities, such as seminars, publications and research.</div><div align="justify"></div><div align="justify"><br />They allow developing economies such as Peru to learn from developed economies' experiences, in order to reduce the technological gap and enhance the economic growth and prosperity of the region.</div><div align="justify"></div><div align="justify"><br />This year, APEC has financed 21 Peruvian projects, which have been implemented successfully. They have allowed us to strengthen our knowledge of key areas of common interest in the region, such as the single window initiative and the data privacy pathfinder. For 2009, 16 projects were approved by the Budget and Management Committee meeting last October.</div><div align="justify"></div><div align="justify"><br /><strong>JAGB:</strong> Economic and technical cooperation is critical to APEC's work. This is especially true in areas such as the competitiveness of small and medium enterprises, and human resources development. APEC's commitment to capacity building demonstrates how the region as a whole works together to address the gap in the various levels of development. </div><div align="justify"></div><div align="justify"><br /><strong>APEC E:</strong> <strong><span style="font-size:180%;color:#ff0000;">Corporate social responsibility has made it to the APEC agenda. How does this issue contribute to the economic growth of the region? </span></strong></div><div align="justify"></div><div align="justify"><br /><strong>JAGB:</strong> <strong><span style="font-size:180%;color:#ff0000;">I think CSR plays a key role at the local level to promote sustainable development.</span></strong> We have seen this in some projects undertaken by mining companies in remote communities of Peru, where the firm has invested in local infrastructure and development. I think it is clear that this has a positive reward for the individual company - it can improve the local workforce and promote better relations with local communities. <strong><span style="font-size:180%;">[SORRY. CSR DOES NOT, BY ITSELF, CONTRIBUTE TO COMPANY PROFITS, REVENUE GROWTH OR EVEN MACROECONOMIC GROWTH.]</span></strong></div><div align="justify"></div><div align="justify"><br /><strong>MA:</strong> <strong><span style="font-size:180%;color:#ff0000;">We have introduced the issue of Corporate Social Responsibility on a voluntary basis to encourage the incorporation of social and environmental concerns into business operations, as a complement to existing public policies and programs.</span></strong> </div><div align="justify"></div><div align="justify"><br /><strong><em><span style="font-size:130%;"><span style="color:#3333ff;">As an example of our efforts in advancing this issue, we held the 5th Tourism Ministerial Meeting under the theme "Towards Responsible Tourism in the Asia-Pacific Region" to promote continuous sustainable growth in the tourism industry.</span> <span style="color:#33ff33;">We hope that the meetings' outcomes will help to generate income and employment in local communities and to promote the conservation and preservation of our environment, including the social and cultural aspects.</span></span></em></strong></div><div align="justify"></div><div align="justify"></div><div align="justify">I<strong><span style="font-size:130%;color:#ff0000;"> am sure that a strong discussion on this issue could address challenges of great significance in the achievement of socio-economic development and equitable and sustainable growth.</span></strong></div><div align="justify"></div><div align="justify"></div><div align="justify"><strong><span style="font-size:180%;">[WE BEG TO DIFFER. THIS SOUNDS A LOT LIKE THE EUROPEAN UNION SPEAKING. THE EUROPEAN UNION HAS PERFECTED THE USE OF CORPORATE SOCIAL RESPONSIBILITY STANDARDS SCHEMES, WHICH THE SOCIALIST PARTY WITHIN THE EUROPEAN PARLIAMENT SEEKS TO CONVERT INTO REGULATORY MANDATES, AS ANOTHER NEW FORM OF DISGUISED TRADE PROTECTIONISM THAT ENABLES GOVERNMENTS TO DISTINGUISH THEIR CHAMPIONED COMPANIES BASED ON NON-TECHNICAL, NON-PERFORMANCE-BASED PROCESS GROUNDS. CSR SCHEMES HAVE ALREADY RESULTED IN THE 'SOCIAL BLACKLISTING' OF COMPANIES, LET ALONE, IN LEGAL LIABILITY FOR COMPANIES, BOARD MEMBERS AND MANAGEMENT WITHIN THE U.S. THIS IS LIKELY TO OCCUR WHERE NONGOVERNMENTAL ORGANIZATIONS DECIDE FOR THEMSELVES THAT COMPANIES HAVE FAILED TO TRUTHFULLY REPORT THEIR ACTIVITIES AS SET FORTH IN NONFINANCIAL ANNUAL REPORTS PREPARED AND SUBMITTED TO NONFINANCIAL REPORTING MECHANISMS SUCH AS THE GLOBAL REPORTING INITIATIVE AND THE UNITED NATIONS GLOBAL COMPACT OFFICE.</span> <span style="font-family:georgia;"><span style="color:#33ff33;"><em><span style="font-size:130%;">See, e.g.: ITSSD JOURNAL ON CSR (CORPORATE SOCIAL RESTRICTION)</span></em> at: </span></span></strong><a href="http://itssdjournalcsr.blogspot.com/"><strong>http://itssdjournalcsr.blogspot.com</strong></a><strong> ; <em><span style="font-size:130%;color:#33ff33;">ITSSD JOURNAL ON INTERNATIONAL STANDARDS,</span></em> at: </strong><a href="http://itssdinternationalstandards.blogspot.com/2008/07/absurdity-multitude-of-european-fruit.html"><strong>http://itssdinternationalstandards.blogspot.com/2008/07/absurdity-multitude-of-european-fruit.html</strong></a><span style="font-size:180%;"><strong>]. </strong></span></div><div align="justify"></div></div>ITSSD Charitable Missionhttp://www.blogger.com/profile/00790887154748866904noreply@blogger.com0tag:blogger.com,1999:blog-7037944389322160928.post-45687354297128800452008-11-06T06:30:00.000-08:002008-11-18T15:25:44.152-08:00What Type of 'SEAT at the Table' Will Be Reserved for an EURObama Administration??<a href="http://online.wsj.com/article/SB122591746511102337.html">http://online.wsj.com/article/SB122591746511102337.html</a><br /><br /><br /><strong><span style="font-size:130%;color:#3333ff;">And the Winner Is . . . Europe?<br /></span></strong><br /><strong><span style="font-size:130%;color:#3333ff;">Firms on the Continent may gain the most under Obama.</span></strong><br /><br /><br /><br />By KYLE WINGFIELD<br /><br /><br /><br /><div align="justify">Wall Street Journal Europe<br /></div><br /><br /><br /><div align="justify">November 6, 2008</div><br /><br /><br /><div align="justify"></div><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiMB1pvbicwlqAdw4yJUQ85kjRdXCE4IDR8zPQyM6_DeWWcDmywhTYOaEwIPvPsLlZcOwMrBCovntXvvGyu7-ikWxoV9j8vG_IRGk-4iKc1OdKfnXAWOwxUuHCEiEoIDJz5pwf4AUE-ynxG/s1600-h/Europe+around+the+table+toasting+Democratic+Party+victory.jpg"><img id="BLOGGER_PHOTO_ID_5265555925331670226" style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 278px; CURSOR: hand; HEIGHT: 370px" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiMB1pvbicwlqAdw4yJUQ85kjRdXCE4IDR8zPQyM6_DeWWcDmywhTYOaEwIPvPsLlZcOwMrBCovntXvvGyu7-ikWxoV9j8vG_IRGk-4iKc1OdKfnXAWOwxUuHCEiEoIDJz5pwf4AUE-ynxG/s320/Europe+around+the+table+toasting+Democratic+Party+victory.jpg" border="0" /></a><br /><br /><div align="justify"><strong><span style="font-size:180%;color:#3333ff;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiLpRRMKoaT6ik23xO1KrmlaMmHH3HVSX5A9OTfyd6E8e-qqm-jI3J7cGUfJ9dxGLhsHYMGpoEv03VdnN9W_a0D5d9vXnYKUimKkxKrMoc1xtEisxmzA3WrMYfSYsXK8Vw7dT57L_2vPnBs/s1600-h/seat+at+the+table+-+board_table.jpg"><img id="BLOGGER_PHOTO_ID_5265566911736493634" style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 380px; CURSOR: hand; HEIGHT: 259px" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiLpRRMKoaT6ik23xO1KrmlaMmHH3HVSX5A9OTfyd6E8e-qqm-jI3J7cGUfJ9dxGLhsHYMGpoEv03VdnN9W_a0D5d9vXnYKUimKkxKrMoc1xtEisxmzA3WrMYfSYsXK8Vw7dT57L_2vPnBs/s320/seat+at+the+table+-+board_table.jpg" border="0" /></a>Amid all the celebrations in Europe of Barack Obama's election as the American president, one wonders how many glasses were clinking in boardrooms across the Continent.</span></strong> The early guess: a lot.</div><div align="justify"></div><br /><br /><br /><div align="justify"><strong><span style="font-size:180%;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjz0oF-8hJTEvjHsvYQtE9KDtInDAo_42SHr2MTdJPjD1dJ1n9orfR9FCdAdOr353YyHnJ-jcJMyV46I4cY2rgSjmM3BTTFuJgpdOsmHxg3Dqv8SL4jc9I6t7ZSMjjDLLA2EUtdiW8Hj2LR/s1600-h/seat+at+the+table+-+Knights_of_the_Round_Table.jpg"><img id="BLOGGER_PHOTO_ID_5265568124190030914" style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 398px; CURSOR: hand; HEIGHT: 330px" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjz0oF-8hJTEvjHsvYQtE9KDtInDAo_42SHr2MTdJPjD1dJ1n9orfR9FCdAdOr353YyHnJ-jcJMyV46I4cY2rgSjmM3BTTFuJgpdOsmHxg3Dqv8SL4jc9I6t7ZSMjjDLLA2EUtdiW8Hj2LR/s320/seat+at+the+table+-+Knights_of_the_Round_Table.jpg" border="0" /></a>[THE LONG HIDDEN COMMON AGENDA OF THE ELITIST LIBERAL PROGRESSIVE WING OF THE U.S. DEMOCRATIC PARTY AND THEIR EUROPEAN WELFARE STATE-MINDED COUSINS IN THE EUROPEAN COMMISSION & THE SOCIAL DEMOCRACIES OF FRANCE, GERMANY AND GREAT BRITAIN IS NOW PALPABLE & VISIBLE, AS THEY EACH SIP THEIR FRENCH & CALIFORNIA WINES AND CHAMPAGNES AND 'PURE' GERMAN BEERS IN CELEBRATION OF THE OSTENSIBLE COLLECTIVE VICTORY OF 'SOFT' SOCIALISM OVER 'COWBOY' CAPITALISM.]</span></strong></div><br /><br /><div align="justify"><br /><strong><span style="font-size:180%;"><span style="color:#3333ff;">Many U.S. companies will be apprehensive about what an Obama administration coupled with a strongly Democratic Congress will mean for them</span>: <span style="color:#ffff33;">higher tax rates, or certainly not lower ones; greater power for trade unions after a decades-long pendulum swing toward management; stricter environmental regulations and possibly a cap-and-trade system; less inclination to negotiate meaningful free-trade agreements; a spate of new federal judges who are hostile to business interests.</span></span></strong> <strong><span style="font-size:180%;"><span style="color:#3333ff;">European firms can view these developments as a leveling of the playing field -- or even a <em>tilting</em> of the field in their favor.</span> </span></strong><br /><br /></div><div align="justify"><strong><span style="font-size:180%;">[</span><span style="font-size:130%;">See ITSSD Press Release: <em>Putting Country First Means Defending America's Sovereignty, Constitution and Free Enterprise System Against Foreign Incursion</em>, PR Newswire (Sept. 6, 2008) at: </span></strong><a href="http://www.reuters.com/article/pressRelease/idUS134761+08-Sep-2008+PRN20080908"><strong>http://www.reuters.com/article/pressRelease/idUS134761+08-Sep-2008+PRN20080908</strong></a><strong> <span style="font-size:180%;">].</span></strong></div><br /><br /><div align="justify"><br /><strong><span style="font-size:180%;">[</span><span style="font-size:130%;">See Lawrence A. Kogan, <em>Exporting Europe's Protectionism</em>, The National Interest (Fall 2004), accessible on ITSSD Main Website at: </span></strong><a href="http://www.itssd.org/Publications/Kogan%20TNI%2077FINAL.pdf"><strong>http://www.itssd.org/Publications/Kogan%20TNI%2077FINAL.pdf</strong></a><strong> <span style="font-size:180%;">].</span></strong><span style="font-size:180%;"> </span><br /></div><div align="justify"></div><br /><br /><div align="justify"><strong><span style="font-size:180%;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhYvVX_sJJ7nbhlQqizOPcpah79Ii1oO1zUCRiGGtkvwruVO93jzLkhzbf12GuloEUn64GknLEfFj6Kj4sakeJzuQ35xEvV_lq4KiCZE_LKOfvS-OhUJsP0etqSWKUqBQGW6cMPvk4LRUT8/s1600-h/eu-toilet.jpg"><img id="BLOGGER_PHOTO_ID_5265556253104680706" style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 415px; CURSOR: hand; HEIGHT: 295px" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhYvVX_sJJ7nbhlQqizOPcpah79Ii1oO1zUCRiGGtkvwruVO93jzLkhzbf12GuloEUn64GknLEfFj6Kj4sakeJzuQ35xEvV_lq4KiCZE_LKOfvS-OhUJsP0etqSWKUqBQGW6cMPvk4LRUT8/s320/eu-toilet.jpg" border="0" /></a>[IT IS NO LONGER A SECRET THAT THE LIBERAL WING OF THE DEMOCRATIC PARTY HAS ACHIEVED ITS LONG-TERM GOAL - OF RETURNING THE U.S. TO THE TRANSATLANTIC NEGOTIATING TABLE TO HARMONIZE AMERICA'S ENLIGHTENMENT ERA-INSPIRED FREE ENTERPRISE SYSTEM & COMMON LAW-BASED LEGAL SYSTEM WITH CONTINENTAL EUROPE'S SOCIAL WELFARE STATE ECONOMIC & CIVIL LAW-BASED LEGAL SYSTEMS. HOWEVER, THE TABLE AT WHICH THEY NOW CELEBRATE AND THE SEAT EACH NOW OCCUPIES WILL CERTAINLY BE DIFFERENT FROM THAT AT WHICH THEY ALL ROLL UP THEIR SLEEVES TO DO THEIR 'DIRTY' WORK.]</span></strong></div><br /><br /><div align="justify"><br /><strong><span style="font-size:180%;color:#ffcc00;"><span style="color:#3333ff;">New regulations</span> will play a large role in this leveling exercise. </span></strong><strong><span style="font-size:180%;color:#ffcc00;">For instance, trade unions are licking their chops at the prospect of Democrats running both the executive and legislative branches.</span></strong> One of the items on their wish list is "card check," which would eliminate secret ballots among employees deciding whether to join a union.</div><div align="justify"><br /><br />Should card check help unions to boost their membership substantially from its current trough, American companies will be forced to make some of the same concessions that European firms have been making all along. <strong><span style="font-size:180%;color:#ff0000;">Part of the trans-Atlantic competitiveness gap would be erased.<br /></span></strong></div><div align="justify"><br /></div><div align="justify"><strong><span style="font-size:180%;color:#ff0000;"><span style="color:#33ff33;">Environmental laws</span> are another area where American competitiveness could fall toward European levels.</span></strong> <strong><span style="font-size:180%;color:#3333ff;">Businesses in the EU already have to deal with</span></strong> <strong><span style="font-size:180%;color:#33ff33;">a cap-and-trade system to curb carbon emissions</span></strong>. <strong><span style="font-size:180%;color:#ffff33;">It's a good bet that the same will be true in America within the next four years, and the U.S. will probably work closely with Europe to create a successor to the Kyoto Protocol.</span></strong></div><br /><br /><br /><div align="justify">While the faulty construction of the first phase of the European Union's Emissions Trading Scheme limited the impact on businesses, the screws are being tightened in the second phase and more industries (e.g., airlines) are being sucked in. <strong><span style="font-size:180%;color:#ff0000;">Any hit to European industry's global competitiveness, though, will be greatly softened if the U.S. introduces its own cap-and-trade system.</span></strong></div><br /><br /><br /><div align="justify"><strong><span style="font-size:180%;color:#3333ff;">And as we've already seen in the automotive industry, a Washington that's determined to subsidize companies' transition to the low-carbon economy will only encourage European capitals to do the same.</span></strong><br /></div><br /><br /><div align="justify">Thus the $25 billion in public loans that have already been granted to Detroit, with another $25 billion possibly on the way once Mr. Obama takes office, have spurred Europe to consider a €40 billion loan program for its own car makers. <strong><span style="font-size:180%;color:#ff0000;">The manufacturers will gladly take this taxpayer money.</span></strong></div><br /><br /><br /><div align="justify"><strong><span style="font-size:180%;">[YES. THIS IS THE ULTIMATE GOVERNMENT APPROVED AND INDUSTRY LOBBIED 'SUBSIDY'!]</span></strong></div><br /><br /><div align="justify"><br /><strong><span style="font-size:180%;color:#ff0000;">Both environmental laws and labor regulations are ways in which <span style="color:#3333ff;">European firms wouldn't necessarily improve themselves,</span> only see their American rivals become less competitive.</span></strong> A more positive benefit for Europe could come in the trade arena.</div><div align="justify"></div><br /><br /><div align="justify"><br /><strong><span style="font-size:180%;">Those who hope Mr. Obama will breathe new life into a multilateral trade deal like the Doha Round are likely to be disappointed.</span></strong> There are trade experts who believe the president-elect and his advisers have more free-trade instincts than they've let on -- witness the brouhaha earlier this year over whether talk about a President Obama unilaterally rewriting the North American Free Trade Agreement was just a way of winning over protectionist-minded Democrats during the primary campaign.</div><div align="justify"></div><br /><br /><div align="justify"><br /><strong><span style="font-size:180%;color:#ff0000;">The problem with that optimistic view is that Mr. Obama will face a Congress that views trade liberalization as anathema. <span style="color:#3333ff;">Democrats on Capitol Hill haven't blocked bilateral trade deals with the like of Colombia and South Korea because George W. Bush wanted them, but because their trade-union supporters did not want them.</span></span></strong></div><br /><br /><div align="justify"><br /><strong><span style="font-size:180%;color:#ff0000;">Democrats' refusal to approve those deals, alongside America's inability to push through a Doha deal, has opened the door for the EU to take the lead in bilateral free-trade agreements</span></strong>. Since lifting its self-imposed moratorium on bilaterals once it became clear that Doha was going nowhere, Brussels has been aggressive on this front. It has courted Canada, India, South Korea, the Association of Southeast Asian Nations and others.<br /><br /></div><div align="justify">Bilateral trade deals can mean administrative headaches for companies that do business in a number of countries. But however imperfectly, they do open markets. <strong><span style="font-size:180%;color:#ff0000;">In just about anywhere outside U.S. borders, European industry could gain from American protectionism.</span></strong></div><div align="justify"></div><br /><br /><div align="justify"><br /><strong><span style="font-size:180%;color:#3333ff;">None of these gains will materialize, though, if European governments take the Obama era of "change" as an excuse to halt their slow crawl toward economic reform.</span></strong> Other countries or regions outside Europe could also choose to take advantage of a fall in U.S. competitiveness. </div><div align="justify"><br /></div><div align="justify">It would make no sense to react to an upswing in American trade-union power, for instance, by freezing the liberalization of Europe's still-rigid labor markets. <strong><span style="font-size:180%;color:#ff0000;">This is one time it might not pay to follow America's lead.</span></strong><br /></div><div align="justify"><br /><em>Mr. Wingfield edits the Business Europe column.</em></div>ITSSD Charitable Missionhttp://www.blogger.com/profile/00790887154748866904noreply@blogger.com0tag:blogger.com,1999:blog-7037944389322160928.post-67953758424534923542008-09-05T04:29:00.000-07:002008-09-05T05:07:40.935-07:00Trade Expert Criticizes Obama & Blue Party's Prescription for Economic Change: Adoption of the European Trade Strategy Known as 'Export-Protectionism'<a href="http://www.ft.com/cms/s/0/43cac9fc-6ded-11dd-b5df-0000779fd18c.html?nclick_check=1">http://www.ft.com/cms/s/0/43cac9fc-6ded-11dd-b5df-0000779fd18c.html?nclick_check=1</a><br /><br /><strong><span style="font-size:130%;">The selfish hegemon must offer a New Deal on trade</span></strong><br /><br /><br />By Jagdish Bhagwati<br /><br /><br />Financial Times<br /><br /><br />August 19, 2008<br /><br /><br />In the 1980s, Japan was feared in the US to be a lethal combination of Superman and the evil genius Lex Luthor in a classic case of what I have called the Diminished Giant Syndrome.<br /><br /><br /><strong><span style="font-size:130%;">Members of Congress</span></strong> famously smashed a Toshiba radio cassette recorder on the steps of Capitol Hill in protest in 1987. Great Britain at the turn of the 19th century had been marked by similar diffidence, despair and recrimination when Germany and the US were emerging on the world scene. There, Sir Howard Vincent entered parliament festooned with mops, pails and brushes marked “Made in Germany”.<br /><br /><br />US hegemony survived the exaggerated threat from Japan. But the US is now once again a fearful giant. Many Americans see trade as a peril rather than an opportunity. This has turned the US from what the economist Charles Kindleberger famously called an “altruistic” hegemon into a “selfish” hegemon.<br /><br /><br /><strong><span style="font-size:180%;color:#3333ff;">On the back of economic anxiety in the country, many in both political parties <em>(although far more among Democrats)</em> see freer trade now as a costly giveaway to others at the expense of the US. They ask: “What is in it for me?”</span></strong> <strong><span style="font-size:130%;">Only an agenda for institutional change, one that addresses the true causes of the anxiety in the US today, has a chance of returning trade policy to sanity.<br /></span></strong><br /><br />The US role in the failed Doha trade talks illustrates the collapse of American leadership. Here, the US has been the central spoiler, refusing to cut its <a class="bodystrong" title="Brazil to dispute US subsidies" href="http://www.ft.com/cms/s/0/7928a77a-6183-11dd-af94-000077b07658.html" target="_blank"><strong><span style="font-size:180%;">trade-distorting subsidies</span></strong></a> significantly even though they are universally recognised as intolerable. Its latest offer was to cap them at $14.5bn (€9.84bn, £7.76bn) but that well exceeded current payouts, estimated at $9bn. With only 2m farmers in the country, the US still attacked India for asking for an enhanced “special safeguard mechanism” to be used in case of an import surge, when India has far smaller, often subsistence, farms and nearly two-thirds of its population in rural employment.<br /><br /><br />While making negligible concessions itself, the US was insisting on difficult concessions from India, made even more troublesome politically because of the insubstantial offer on US subsidies. Besides, when the Doha talks started, the developing countries were not even supposed to be making concessions in agriculture. <strong><span style="font-size:130%;">Throughout the Doha negotiations</span></strong>, the office of the US trade representative and <strong><span style="font-size:130%;">US Congress pointed a finger at others</span></strong> – at Brazil, then at India and then also China – <strong><span style="font-size:130%;">but have never considered their own roles</span></strong>.<br /><br /><strong><span style="font-size:130%;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEik7EnjZ2Ev0gAUh8-Bv9JTsFe4Z7z3Gnn_dxPNgCaJ7mDVfT0SgF1ol69Ojf5zoCShQBjwtVvYybDAyKMc3O75LbcmgvfFcwJ92S2wBUvjsb8cMMJRTn3RkYk8GY_ju0DR3s3Z0AJoEsp_/s1600-h/Hoover"><img id="BLOGGER_PHOTO_ID_5242505427197203010" style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 455px; CURSOR: hand; HEIGHT: 203px" height="199" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEik7EnjZ2Ev0gAUh8-Bv9JTsFe4Z7z3Gnn_dxPNgCaJ7mDVfT0SgF1ol69Ojf5zoCShQBjwtVvYybDAyKMc3O75LbcmgvfFcwJ92S2wBUvjsb8cMMJRTn3RkYk8GY_ju0DR3s3Z0AJoEsp_/s400/Hoover's+Disastrous+Trade+Policies+Embraced+by+Blue+Party.jpg" width="455" border="0" /></a>The US has also muscled in to its bilateral preferential trade agreements (nearly all with small, developing nations) <em><span style="font-size:180%;color:#000099;">conditions unrelated to trade</span></em> at the expense of their partner nations</span></strong>.<br /><br /><br /><strong><span style="font-size:180%;">[THE EUROPEAN UNION INNOCENTLY REFERS TO SUCH CONDITIONS AS 'CULTURAL PREFERENCES']</span></strong><br /><br /><br />Thus <strong><span style="font-size:180%;">a country [the US]</span></strong> that is hardly an exemplar on <strong><span style="font-size:180%;color:#3333ff;">labour rights</span></strong>, where the right to strike has been severely restrained since the Taft-Hartley legislation more than half a century ago, where union membership in the private sector has declined to less than 10 per cent of the labour force, and which has not ratified all the International Labour Organisation’s core conventions, <strong><span style="font-size:180%;">has had the effrontery to impose standards on others in these PTAs. Why?</span></strong><br /><br /><br />It is evidently not because it practises what it preaches and demands. Rather, it is because the <strong><span style="font-size:180%;color:#3333ff;">labour lobbies</span></strong> believe, without any compelling evidence, that American wages have been stagnant because of competition from the developing nations. Further, <strong><span style="font-size:180%;color:#000099;">they believe that if one could only stand Thomas Friedman of “flat earth” fame on his head and flatten the earth by raising these countries’ labour costs up to US levels, that would help reduce competition. In short, this is what economists call “export protectionism”. </span></strong><br /><br /><br />What is doubly offensive about <strong><em><span style="font-size:130%;color:#3333ff;">this exercise of political muscle is that it is advanced in the language of altruism: not by saying frankly that it is because “our unions are worried about competition” but by pretending that it is “in your workers’ interests”.</span></em></strong> An altruistic hegemon would not be playing these games; a selfish hegemon will do little else.<br /><br /><strong><span style="font-size:180%;color:#3333ff;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEi6CNkFGvoF83xvXellorzsFDQd_dXgu7lDqy1jbHvm6eRFkxFLPYByMpqComJXDxKlVLkbsDAE3PEaIsqJXtO3mVRHfY6EMzffs2NQXXpjbnhyphenhyphen3y6CBw0OYS7SOZ1rMaTYSqw-8dlOx3im/s1600-h/obama"><img id="BLOGGER_PHOTO_ID_5242503347454243218" style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 337px; CURSOR: hand; HEIGHT: 278px" height="247" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEi6CNkFGvoF83xvXellorzsFDQd_dXgu7lDqy1jbHvm6eRFkxFLPYByMpqComJXDxKlVLkbsDAE3PEaIsqJXtO3mVRHfY6EMzffs2NQXXpjbnhyphenhyphen3y6CBw0OYS7SOZ1rMaTYSqw-8dlOx3im/s320/obama's+export+protectionism.bmp" width="369" border="0" /></a>Senator Barack Obama does not quite get this</span></strong>. By asking, as part of his agenda for change, that the US should now impose even more draconian labour requirements in future PTAs, and that the North American Free Trade Agreement should be revised to incorporate yet tougher labour requirements, <strong><span style="font-size:180%;color:#3333ff;">he is making export protectionism, and the reputation of the US as a selfish hegemon, worse, not better. Some change.</span></strong><br /><br /><br />Change is indeed in order, although along totally different lines. It must reflect a holistic view of the new reality that the US confronts. In particular, <strong><em><span style="font-size:130%;">the economic anxiety that overwhelms US workers today stems from the increased fragility of their jobs</span></em></strong>.<br /><br /><br />First, as with Japan in the 1930s, when one-dollar blouses flooded the world, India and China today are growing and exporting rapidly. They are like Gullivers in a Lilliputian world economy. They create tsunamis for specific industries where their exports concentrate.<br /><br /><br />Second, competition has intensified. As exemplified by the Boeing-Airbus saga, <strong><em><span style="font-size:130%;">the margins of competitive advantage have shrunk. No chief executive or any of his workers in tradable industries leads a happy life any more as there is always someone, from somewhere, breathing down his neck</span></em></strong>. I call this new phenomenon <strong><span style="font-size:180%;">“kaleidoscopic comparative advantage”</span></strong>. <strong><span style="font-size:180%;">It leads to volatility of jobs, as you have an advantage today and can lose it tomorrow.</span></strong><br /><br /><br />Third, labour-saving technical change continuously threatens assembly-line jobs for the unskilled. The assembly lines continue but increasingly do not have workers on them; they are managed from a glass cage by skilled operators whose jobs increase instead.<br /><br /><br /><strong><em><span style="font-size:130%;">The agenda for institutional change has to address this fragility of jobs, enabling unskilled and skilled workers to face the new uncertainties. To illustrate: <span style="font-size:180%;">higher education will have to be recast to reduce the proportion of time spent on specialisation</span>: this would enable an easier response to shifting skill requirements as the kaleidoscope turns.</span></em></strong> Unskilled workers will have to be helped and encouraged to acquire skills and therefore increase their ability to shift to other jobs, even as they continue to work.<br /><br /><br /><strong><span style="font-size:180%;color:#3333ff;">Senator Obama promises change but he needs a deeper understanding of the anxiety-causing “new epoch” to define his new agenda shorn of protectionism.</span></strong> <strong><span style="font-size:180%;color:#ff0000;">John McCain, the Republican presidential candidate, admirably stands for free trade but shows no evidence whatsoever of comprehending that this needs to be situated in an institutional context that requires a serious overhaul</span></strong>. <strong><span style="font-size:180%;">Who will ultimately offer us the right New Deal?</span></strong><br /><br /><br /><em>The writer, university professor, economics and law, at Columbia University and senior fellow in International Economics at the Council on Foreign Relations, has just published ‘Termites in the Trading System: How Preferential Agreements Undermine Free Trade’. His next book on US trade policy, ‘Terrified by Trade: Institutional Change to Address Anxiety and Contain Protectionism’ (Oxford) is to be published in spring 2009</em>ITSSD Charitable Missionhttp://www.blogger.com/profile/00790887154748866904noreply@blogger.com0tag:blogger.com,1999:blog-7037944389322160928.post-48017227462737963022008-09-02T20:44:00.001-07:002008-09-02T21:17:13.754-07:00Africa Suffers From European Protectionism Yet Again: Is This What EURObama's Embedded Carbon/ Carbon Tariff-Focused US Trade Policies Would Achieve?<a href="http://www.ippmedia.com/ipp/guardian/2008/08/23/121114.html">http://www.ippmedia.com/ipp/guardian/2008/08/23/121114.html</a><br /><br /><strong><span style="font-size:130%;">Africa to Pay for Europe's Green Policies</span></strong><br /><br /><br />UK Guardian Reporter<br /><br /><br />2008-08-23<br /><br /><br /><strong><span style="font-size:130%;">In efforts to make quick and symbolic gains in Europe`s otherwise failed policies to curb climate gas emissions, environmental and anti-globalisation politicians are aiming at Africa`s few economic success stories.<br /></span></strong><br /><br /><span style="color:#33ff33;"><strong><span style="font-size:180%;">Campaigns to buy locally produced food and travel to local destinations particularly hit out against African products.</span></strong><br /></span><br /><br />Consumers in Europe are again growing more environmentally conscious and are willing to use their purchasing power to assist in what is widely seen as their era`s most pressing problems.<br /><br /><br />Problems include overspending of energy and global warming. Meanwhile, <strong><span style="font-size:180%;">European politicians have been those pressuring strongest to gain support for the Kyoto Protocol while having totally failed to lower emissions of climate gases in their own countries. In every country, emissions have steadily increased.<br /></span></strong><br /><br />Populist solutions that are to satisfy costumers, politicians and the European industry alike are therefore surfacing all over Africa`s neighbour continent and the main market of its products.<br /><br /><br />And the solutions seem neat and nice - easy to understand and with the potential of creating more work locally. Even the industry starts propagating these solutions.<br /><br /><br /><strong><span style="font-size:180%;"><span style="color:#ff6600;">The victim mainly is Africa, because the message is that, as longer as a product or person is transported, the more energy is wasted unnecessarily.</span><br /></span></strong><br /><br /><strong><span style="font-size:130%;color:#ffff00;">Worst of all is airborne transport, having the highest emissions of climate gases such as CO2.<br /><br /><br />Unluckily, Africa is far away from European markets and poor transcontinental infrastructure puts most products and travellers on an airplane.<br /><br /><br />All over Europe, therefore, home-grown campaigns are being promoted, attacking Africa's newest and most successful export products.<br /></span></strong><br /><br /><strong><span style="font-size:180%;color:#33ff33;">Anti-globalisation activists, ``green`` politicians, local industry and even occasional experts and scientists head these ``buy local`` campaigns.<br /></span></strong><br /><br /><strong><span style="font-size:180%;color:#ff6600;">One of the latest campaigns is being launched in Germany, Europe`s most populous state and biggest single market.</span></strong> The campaign goes ``Sylt instead of Seychelles``, referring to a fragile German North Sea island with an overstretched and environmentally damaging tourism industry.<br /><br /><br /><strong><span style="font-size:180%;color:#ff6600;">Tourism and climate expert Dr Manfred Stock developed the slogan and told the daily newspaper `Berliner Zeitung` that consumers worrying about global warming should avoid intercontinental flights and rather take the train to a German or European destination.<br /></span></strong><br /><br /><strong><span style="color:#33ff33;"><span style="font-size:180%;">The much-quoted researcher is in line with policies promoted by Germany's Federal Environment Agency (UBA).</span><em><span style="font-size:180%;"><br /></span></em></span></strong><br /><br /><strong><span style="font-size:180%;color:#33ff33;">UBA President Dr Andreas Troge has made the climate change issue his agency`s foremost focus, and one of the ways consumers could ``do something on your own`` is by changing their travel behaviour, UBA says.<br /></span></strong><br /><br /><strong><em>A single traveller flying to an intercontinental destination produces more than five tonnes of CO2, he told the German press, while someone travelling by train within Germany only had the emission of ten of kilograms of CO2 to account for.<br /></em></strong><br /><br /><strong><em>Some even go further and have started penalising air travellers. In Norway, flyers have started paying for their CO2 emissions.</em></strong><br /><br /><br />So far, only domestic flights are penalised to make sure Norwegian airliners are not losing out in competition with other companies on international flights.<br /><br /><br />But <strong><span style="font-size:130%;">Norway is among many countries working for a CO2 tax on world-wide flights, which of course in particular would make long distance flights much more expensive</span></strong>.<br /><br /><br /><span style="font-size:180%;"><strong><span style="color:#ffff00;">This comes as most African states are investing massively in their nascent tourism industry and as Africa is surfacing as a modern and exciting travel destination in most Western markets</span></strong>.<br /></span><br /><br />Some sub-Saharan states, in particular Seychelles, Mauritius, Cape Verde and The Gambia, already see tourism as their greatest foreign exchange earners.<br /><br /><br />In Kenya, Tanzania, Senegal, Namibia, Botswana and South Africa, the travel industry by now is a vibrant success, while newcomers as Mozambique, Ethiopia, Gabon and Burkina Faso pin great investments and development hopes to the industry.<br /><br /><br /><strong><span style="font-size:180%;color:#33ff33;">Ironically, much of Africa's new tourist destinations are focusing on eco-tourism, searching for modes that can guarantee the protection and good management of wildlife and habitats and local community development based on the new tourism revenues.<br /></span></strong><br /><br />In Gabon and Madagascar, vast landscapes have been protected to be able to promote eco-tourism.<br /><br /><br /><strong><em><span style="font-size:130%;color:#33ff33;">No measure in African history has proven so successful in stopping tree cutting and forest conservation than prospects of tourism revenues</span></em></strong>.<br /><br /><br />Mature markets like Seychelles, Mauritius and South Africa are already world leaders when it comes to conservation and management, knowing that their tourism industry depends on a sound nature.<br /><br /><br /><strong><span style="font-size:180%;color:#3333ff;">At the same time, African destinations like Seychelles are demonised as anti-environmental by European ``experts``.<br /></span></strong><br /><br /><strong>If successful, these campaigns could have a severe effect on the European market, which for the first time is experiencing a positive image of Africa as a must-see travel destination.<br /></strong><br /><br /><strong><em><span style="font-size:130%;">But also other African success stories are threatened by this new ``stay local`` trend. During the last decade, African agricultural products are increasingly admitted into the protectionist European market, even when also produced in Europe</span></em></strong>.<br /><br /><br />This includes beef from Namibia and Botswana, fresh flowers, fruit and vegetables from Kenya and even processed food products from South Africa and Ghana.<br /><br /><br /><strong><span style="font-size:130%;">None of the few African countries that have managed to enter European markets with agricultural products that compete with local producers have had an easy path reaching their position.<br /></span></strong><br /><br /><strong><span style="font-size:180%;color:#3333ff;">Food quality and hygiene standards in Europe are extremely rigid and to a large degree designed to exclude foreign competition.<br /></span></strong><br /><br /><strong><span style="font-size:180%;color:#33ff33;">To be able to reach sceptical European consumers, African producers mostly also have been obliged to follow strict environmental and social guidelines.<br /></span></strong><br /><br /><strong><em><span style="font-size:130%;color:#ff6600;">Also, African food products for years had to fight against false prototypes promoted by seemingly well-meaning anti-globalisation activists that to a great degree were funded by local farmer organisations.<br /></span></em></strong><br /><br />Development specialists - who do not get much air-time in European media - had to explain on and on again that European consumers were not ``stealing food from starving Africans`` when buying their products, but that these imports indeed would promote wealth and empowerment in rural Africa.<br /><br /><br />But in country after country, also these hard-bought gains are now under attack.<br /><br /><br /><strong><span style="font-size:180%;color:#ff0000;">Britain is the country where consumers so far have had the strongest focus on how far the food basket has travelled before reaching supermarkets</span></strong>.<br /><br /><br /><strong><span style="font-size:180%;color:#3333ff;">``Fresh vegetables from Africa" have for several years been one of the main focuses of environmental and anti-globalisation activists. They have even produced research claiming that the further foods have travelled, ``the more their vitamin and mineral content deteriorates.``</span></strong><br /><br /><br />Already in 2003, <strong><em><span style="font-size:130%;color:#ff0000;">airlifted baby carrots and garden peas from South Africa were highlighted in energy budgets of imported foods. For carrots, ``it will have taken 68 calories of energy in the form of fuel to air freight each calorie of carrot energy,`` while ``fresh peas require approximately two and half times the energy to produce, package and distribute as those sourced locally,`` the British daily `Guardian` reported.<br /></span></em></strong><br /><br />South African wine, which is mostly shipped, however was praised for its ``tiny`` CO2 emissions. Of all the African products scrutinised, only wine is not produced Britain.<br /><br /><br /><strong><span style="font-size:130%;color:#ff0000;">Years of campaigning against African agricultural products in the UK - whose funding has yet to be revealed - has already left its mark on British consumers.<br /></span></strong><br /><br /><strong><span style="font-size:130%;color:#33ff33;"><em>The easy-selling ``fact`` that locally produced vegetables, meat, flowers and fruits are more environmentally fit than African imports has made many consumers look for ``low emission products``.<br /></em></span></strong><br /><br />That this trend is significant was demonstrated by a surprise marketing campaign by <strong><span style="font-size:180%;">Britain's largest supermarket chain, Tesco, in February 2007. The retailer was to introduce ``carbon counting`` labelling to let consumers see for themselves how far their food basket had travelled and how much CO2 emissions had been needed.<br /></span></strong><br /><br /><strong><span style="font-size:130%;">Tesco is one of the main channels for Kenyan products to European consumers - indeed half of Kenya's agricultural exports go to Britain.<br /></span></strong><br /><br />Naturally, the surprise marketing stunt caused frustrations at the Fresh Produce Exporters Association of Kenya (FPEAK), which had not been consulted on the move.<br /><br /><br />While Tesco promised to keep on importing Kenyan products, <strong><em><span style="font-size:130%;">``carbon counting`` labels on these goods from 2008 will tell a one-sided story to British consumers.</span></em></strong><br /><br /><br /><strong><span style="font-size:180%;color:#3333ff;"><span style="color:#ff0000;">From Britain</span>, this trend is spreading to all over Western Europe.<br /></span></strong><br /><br /><strong><em><span style="color:#ffff00;"><span style="font-size:130%;"><span style="color:#3333ff;">In Sweden</span>, the leading daily `Aftonbladet` attacked local supermarkets for not following Tesco\'s example ``despite the fact that one fourth of climate gases emitted by Swedes originate from our food.``</span><br /></span></em></strong><br /><br />Ecologist Annika Carlsson-Kanyama enthusiastically helped the Swedish daily to make a parallel guide for consumers, where ``airborne tropical fruits`` were labelled as no-goes for conscious consumers.<br /><br /><br />In other countries, old arguments against food imports from Africa are resurfacing.<br /><br /><br /><strong><span style="font-size:130%;">In the programme of Nature and Youth, one of the environment groups gaining most media attention in Norway, new and old ``facts`` are mixed: ``Locally produced food is more environmental, safe and solidary,`` it says, claiming solidarity with African producers ``for not spending the resources of others.`` Norway is a main importer of Namibian beef.</span></strong><br /><br /><br />While the great focus on ``environmentally damaging`` food imports from Africa and flights to Africa is even increasing, less and less attention is given to the positive environmental balance of this trade.<br /><br /><br /><strong><span style="font-size:130%;color:#ff6600;">Forgotten is the fact that almost 100 percent of input factors in African agriculture are locally made and almost no machinery is used in production, while European farmers import fertilisers, pesticides, seeds, seasonal workers and oil-consuming machineries from all over the world.<br /></span></strong><br /><br /><strong><span style="font-size:130%;color:#ff6600;">Forgotten is also the fact that food exports and tourist destination developments empower Africans to protect and manage their environment and even reduce African-induced CO2 emissions.<br /></span></strong><br /><span style="font-size:130%;"><br /><strong><span style="color:#ff6600;">Eco-tourism has greatly promoted the protection of forests, mangroves, savannas and coral reefs in Africa - which also are key environs when it comes to storing CO2. A larger and more diversified food production in Africa also reduces the dependence on imports to supply African consumers.</span></strong><br /></span><br /><br /><strong><span style="font-size:180%;color:#33ff33;">And the greatest irony [HYPOCRISY] of all is that, while imports from Africa again are demonised, exports from Europe to Africa causing the same CO2 emissions are promoted as ever before.<br /></span></strong><br /><br /><strong><span style="font-size:180%;color:#ffff00;">Subsidies are paid to promote the consumption of Spanish biscuits, French dairy products, European wheat instead of local staple foods, European tropical fruit juices, trawler caught fish dishes and, of course, all kind of industrial products.<br /></span></strong><br /><br />Even Tesco, being concerned about CO2 emissions of transported foods, shows its real face when it comes to exporting from Europe.<br /><br /><br />Only two weeks before its much-publicised marketing campaign on ``carbon counting`` labels, the UK retailer issued a less-publicised statement.<br /><br /><br />It announced the opening of ten supermarkets in China, where it will be selling popular European grocery products.<br /><br /><br />Political support in Beijing was bought by promising to buy Chinese products worth euro 3.3 billion annually for exports.<br /><br /><br />In China, Tesco meets competition from the giant chains Carrefour of France and Metro of Germany, already assuring a European export of products and lifestyle to the world`s fastest growing market.<br /><br /><br />Who would come up with a silly idea of starting to count CO2 emissions when Europe`s super retailers are taking up competition with America`s Wal-Mart, thus promoting French, German and British products among China`s 1.3 billion inhabitants?ITSSD Charitable Missionhttp://www.blogger.com/profile/00790887154748866904noreply@blogger.com0tag:blogger.com,1999:blog-7037944389322160928.post-89672512688063302512008-08-20T19:09:00.000-07:002008-08-20T21:25:51.930-07:00Uninformed Vermont Legislator Makes Big Stink About China's WTO Objections To State's Waste Rules<a href="http://www.wptz.com/news/17172503/detail.html">http://www.wptz.com/news/17172503/detail.html</a><br /><br /><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEi5TkEASpYzf1c9fWkb_b48WC8y8cJb88ObiqWIcduZRu9vBwqjH5Tn2fcfydblBA9wbBltxUmcjDnyq8R_f_0ENwCvIc0eoHNuQMgpclf_8rNYk6npft8xMbryWcemk4stUVc9VM09ii2l/s1600-h/vermont+map.gif"><img id="BLOGGER_PHOTO_ID_5236818923299214562" style="FLOAT: left; MARGIN: 0px 10px 10px 0px; CURSOR: hand" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEi5TkEASpYzf1c9fWkb_b48WC8y8cJb88ObiqWIcduZRu9vBwqjH5Tn2fcfydblBA9wbBltxUmcjDnyq8R_f_0ENwCvIc0eoHNuQMgpclf_8rNYk6npft8xMbryWcemk4stUVc9VM09ii2l/s400/vermont+map.gif" border="0" /></a><br /><strong><span style="font-size:130%;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgwm-qEhNFk2fkzeFmRjb1NGahd-Qd1A2QH-2ZPJ548z9Amc-9oZS4-rvG27YPbEfXLpT4uh0n8McNRPZUYWICiZ7KvEGXO6qQcKTrBvIyK2JT9yIy2rXSAVUCH5rLBm8d_sZj5_2MINyre/s1600-h/vermont-seal.jpg"><img id="BLOGGER_PHOTO_ID_5236818291640168882" style="FLOAT: left; MARGIN: 0px 10px 10px 0px; CURSOR: hand" height="188" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgwm-qEhNFk2fkzeFmRjb1NGahd-Qd1A2QH-2ZPJ548z9Amc-9oZS4-rvG27YPbEfXLpT4uh0n8McNRPZUYWICiZ7KvEGXO6qQcKTrBvIyK2JT9yIy2rXSAVUCH5rLBm8d_sZj5_2MINyre/s320/vermont-seal.jpg" width="197" border="0" /></a></span></strong><br /><br /><br /><strong><span style="font-size:130%;"></span></strong><br /><br /><br /><strong><span style="font-size:130%;"></span></strong><br /><br /><br /><strong><span style="font-size:130%;"></span></strong><br /><br /><strong><span style="font-size:130%;">For </span></strong><strong><span style="font-size:130%;">Sending A Letter, Vt. Lawmaker Says China Overstepped Its Bounds<br /><br /></span></strong><strong><span style="font-size:130%;"></span></strong><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgNdESkC-57yJsT3Wt24AhaXzsGu8oANsLMQmLUvihrE7XWek7cVoogrziIIbEi2lmo2aOCsD2JV3G4KkqvRG9nvFRIkvgcV6IQJroiSIRnRz6fG6796hMhcLSOSUJxbW5HWQfATX6hp9p2/s1600-h/china-flag.gif"><img id="BLOGGER_PHOTO_ID_5236819676420923730" style="FLOAT: left; MARGIN: 0px 10px 10px 0px; CURSOR: hand" height="173" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgNdESkC-57yJsT3Wt24AhaXzsGu8oANsLMQmLUvihrE7XWek7cVoogrziIIbEi2lmo2aOCsD2JV3G4KkqvRG9nvFRIkvgcV6IQJroiSIRnRz6fG6796hMhcLSOSUJxbW5HWQfATX6hp9p2/s320/china-flag.gif" width="269" border="0" /></a><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjTaHKP5UIPpu57iSIysRJKkCi2ysD3OJ8_GCJQ7011GE0JA9vB0c8Dat032U8JBQjCnVy66NDByNXvRJdM4Gnmtv5rdf-Qr6nSzV5m1JU8zHBNm32I8UznCUJ4ODlnV_rZAsargGTqgcTx/s1600-h/WTO1-Color_L.png"><img id="BLOGGER_PHOTO_ID_5236820031682515586" style="FLOAT: left; MARGIN: 0px 10px 10px 0px; CURSOR: hand" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjTaHKP5UIPpu57iSIysRJKkCi2ysD3OJ8_GCJQ7011GE0JA9vB0c8Dat032U8JBQjCnVy66NDByNXvRJdM4Gnmtv5rdf-Qr6nSzV5m1JU8zHBNm32I8UznCUJ4ODlnV_rZAsargGTqgcTx/s200/WTO1-Color_L.png" border="0" /></a><em>5 WPTZ</em>.com<br /><br /><br />BURLINGTON, Vt. -- A state senator from Chittenden County said a letter received from a Chinese official criticizing legislation she has pending in Montpelier <strong><span style="font-size:130%;color:#3333ff;">"flies in the face of state sovereignty and democratic principles."<br /></span></strong><a href="http://www.wptz.com/video/17173558/index.html">http://www.wptz.com/video/17173558/index.html</a><br /><br /><br /><span style="font-size:130%;"><strong><span style="color:#33ff33;">Sen. Virginia Lyons of Chittenden County chairs the Natural Resources and Energy Committee</span></strong>.</span> Lyons held a news conference Tuesday to discuss the implications of the undated letter she said she received in April.<br /><br /><br />The three-page communication, in both English and Chinese, was signed by "Wang Ni Ni" who identified himself as director general for the "China WTO/TBT National Notification & Enquiry Center" and listed an address in "Hai Dian District, Beijing."<br /><br /><br />The letter opened by saying "we appreciate the opportunity to submit comments on the regulation under the notification proposed by the State of Vermont."<br /><br /><br />Wang then outlined objections to Lyons' bill that would impose fees on manufacturers of electronic goods sold in Vermont. The fees, which would be calculated based on the weight of an item, would establish a fund for eventual recycling of e-waste. Wang suggests the mechanism would affect manufacturers unevenly and amount to an "unfair restriction of trade."<br /><br /><br /><strong><em><span style="font-size:130%;">Lyons said her bill would effectively reduce the volume of electronic waste now winding up in Vermont landfills. Her proposal has yet to see debate at the state capital</span></em></strong>. But most of her ire focused on what she considers an unwelcome intrusion.<br /><br /><br /><br /><br /><br /><strong><span style="font-size:180%;color:#ff0000;">"It's simply not OK for other governments, foreign national governments, to feel they have a right to intervene in our state legislative process in the way China has," Lyons said.<br /></span></strong><br /><br /><strong><span style="font-size:130%;">[MAY WE SUGGEST THAT SENATOR LYONS TAKE A WTO COURSE FROM THE USTR?? HOW ABOUT A REFRESHER COURSE IN THE U.S. CONSTITUTION FROM NONE OTHER THAN THE FACULTY OF VERMONT LAW SCHOOL??]</span></strong><br /><br /><br /><br /><br />She said Maryland and Missouri legislators have also felt "push back" from the Chinese over proposals they don't like. Lyons said she recently sent a complaint to the U.S. Department of Commerce. A spokeswoman there - and at the Office of the U.S. Trade Representative - both declined comment.<br /><br /><br />Lyons said she worries Vermont lawmakers would feel a "chilling effect" from the Chinese official's letter. She said she was "a little unnerved" the communication listed her home phone and address.<br /><br /><br /><br /><br /><strong><span style="font-size:130%;">[WE SUGGEST THAT VERMONT STATE SENATOR LYONS WAKE UP FROM HER DEEP SLEEP OR SELF-IMPOSED STUPOR AND LOOK OUT OVER THE GLOBAL HORIZON TO SEE A BRAVE NEW WORLD OF INTERNATIONAL TRADE, THE INTERNATIONAL LEGAL FRAMEWORK OF WHICH HAS CONTINUED TO EVOLVE SINCE 1947. WITH THE CONCLUSION OF THE URUGUAY ROUND OF TRADE NEGOTIATIONS DURING 1994, AND THE CREATION OF THE WORLD TRADE ORGANIZATION AND ITS BINDING DISPUTE SETTLEMENT MECHANISM, AS WELL AS, THE EXECUTION OF NEW MULTILATERAL TRADE AGREEMENTS, INCLUDING THE TECHNICAL BARRIERS TO TRADE (TBT)AGREEMENT, THE FEDERAL, STATE & LOCAL GOVERNMENT TECHNICAL REGULATIONS OF ALL WTO NATIONAL MEMBERS, AND EVEN THE PRODUCT & PROCESS STANDARDS OF RECOGNIZED PRIVATE STANDARDS BODIES OPERATING WITHIN THE JURISDICTIONS OF WTO MEMBERS, ARE NOW SUBJECT TO INTERNATIONALLY AGREED UPON RULES.] </span></strong><br /><br />---------------------------------------------------------------------------------------<br /><br /><br /><br /><div align="justify"><a href="http://www.worldtradelaw.net/chinavermont.pdf">http://www.worldtradelaw.net/chinavermont.pdf</a><br /><br /><br />115 STATE STREET <strong>STATE OF VERMONT</strong> PHONE: (802) 828-2228 </div><div align="center">MONTPEUER, VT 05633-5201 FAX: (802) 828-2424<br /><br /><br /><strong>SENATE CHAMBER</strong><br /><br /><br />For Immediate Release Contact: Katie Manaras<br />August 12, 2008 (802) 828-3806<br /><br /><br /><strong><span style="font-size:130%;">Senator Virginia Lyons Statement on Chinese Objection<br />to Proposed Environmental Legislation in Vermont</span></strong><br /></div><div align="left"><br /><br />Vermont State Senator Virginia Lyons held a press conference on Tuesday, August 12, 2008 at 2:30 p.m. at Main Street Landing in Burlington, Vermont to make a statement regarding a letter she received from a foreign nation, asking her to "cancel" or "revise" a bill she had introduced during the legislative session. <strong><span style="font-size:180%;color:#33ff33;">The subject of the bill is control and disposal of electronic waste.</span></strong> <strong><span style="font-size:130%;color:#ff0000;">The nation complaining about the Vermont bill is the People's Republic of China.<br /></span></strong><br /><br />In an official communication-which was sent to the home address of this citizen-legislator- <strong><span style="font-size:180%;color:#ff0000;">China asserted that Senator Lyons' bill (S.256) presents an obstacle to international trade</span></strong>. In its letter, China cited an existing U.S. commitment under World Trade Organization (WTO) rules as a reason why Senator Lyons should withdraw her bill.<br /><br /><br />This wasn’t the first such occasion in which the People's Republic of China has 'pushed back' on state legislation they didn't like. <strong><span style="font-size:130%;">China earlier had complained about state bills dealing with lead, phthalates, and other toxic materials found in children's toys</span></strong>. On that occasion, federal trade negotiators in Washington told the state legislator who introduced the bill that the communication from China was a 'mistake' and wouldn't be repeated.<br /><br /><br />However, the 'mistake' was repeated-this time in relation to a proposed Vermont law on electronic waste-and Senator Lyons felt it was extremely important to address this problem now.<br /><br /><br />According to Senator Lyons, <strong><em><span style="font-size:130%;color:#ffff00;">"The People's Republic of China questions the authority of the Vermont legislature to enact legislation to protect human life and the environment. This attempted interference by the People's Republic of China in the democratic process in Vermont is alarming and threatens basic principles of our system of government</span></em></strong>. Common sense solutions to health issues at the state and local level should not be subject to international pressure."<br /><br /><br /><strong><span style="font-size:130%;color:#3333ff;">She stresses that, "This is part of a disturbing trend toward undermining state's rights.</span></strong> Its simply not OK for other governments to feel that they have a right to intervene in our state legislative process in this way. <strong><span style="font-size:180%;color:#33ff33;">It wouldn't matter whether the bill addressed by the Chinese government was about health care, workers benefits, land use permitting, or in this case, electronic waste recycling</span></strong>, the underlying principle is the same: respect for democratic decisionmaking. And so, we have to let folks in Washington DC and in Beijing know that this an unacceptable intrusion."<br /><br /><br /><strong><span style="font-size:180%;color:#ff0000;">Senator Lyons was taken aback by how quickly China obtained the information about an introduced bill. "It appears that the Bush Administration alerted the Chinese," Lyons said</span></strong>. In a letter to Bryan O'Byrne, at the Department of Commerce's Trade Compliance Center, Senator Lyons asked about how-and why-this notification took place. See attached letter.<br /></div><br /><br /><div align="justify"></div><br /><br /><div align="justify"><strong><span style="font-size:130%;">[DEAR MS. LYONS: IT IS THE LEGAL OBLIGATION OF THE U.S. GOVERNMENT TO NOTIFY OTHER WTO PARTIES IF U.S. FEDERAL, STATE OR LOCAL LAWS AND REGULATIONS BEING PROPOSED, ADOPTED and/or APPLIED (ENFORCED) WILL AFFECT THE FLOW OF TRADE FROM THAT OTHER WTO PARTY AND IMPACT THE RIGHTS OF THEIR CONSTITUENTS.]<br /></span></strong></div><br /><br /><div align="justify"><strong><span style="font-size:130%;color:#ff0000;"></span></strong></div><div align="justify"><strong><span style="font-size:130%;color:#ff0000;">Whatever the case, it appears that China is taking an aggressive stand to push back on recycling and product-registration requirements for consumer electronics-and the push-back has now 'gone global.'<br /></span></strong><br /></div><div align="justify"><strong><span style="font-size:130%;">[DEAR MS. LYONS, YOU SHOULD GET OUT MORE AND READ THE NEWSPAPERS. FOR EXAMPLE, CHINA IS NOT THE FIRST WTO MEMBER TO CHALLENGE THE FEDERAL LAWS OF OTHER NATIONS ON WTO GROUNDS. SINCE THE MID-1990'S, THE U.S. GOVERNMENT UNDER THE ADMINISTRATIONS OF TWO PRESIDENTS (DEMOCRAT & REPUBLICAN) HAVE CHALLENGED THE NON-SCIENCE AND NON-ECONOMICS-BASED ENVIRONMENTAL & FOOD SAFETY LAWS OF THE EUROPEAN UNION and ITS MEMBER STATES, ALLEGING, AS HAS CHINA, HERE, THAT THE FAILURE OF THE EUROPEAN LEGISLATURE TO SUBJECT THE PRODUCTS IT WAS SEVERELY RESTRICTING OR OUTRIGHT BANNING TO A SCIENCE-BASED RISK ASSESSMENT, AND THEN TO EMPLOY ECONOMIC COST-BENEFIT ANALYSES IN ASCERTAINING WHICH OF THE AVAILABLE RISK MANAGEMENT MEASURES THAT ARE LEAST TRADE RESTRICTIVE COULD BE ADOPTED IN LIEU OF THE DISPUTED MEASURES. IN PARTICULAR, THE U.S. GOVERNMENT OBJECTED TO THE EU REGULATIONS ON CHEMICALS ('REACH'), AND ITS DIRECTIVES ON WASTE RECYCLING, 'TAKE-BACK', E-WASTE, HAZARDOUS SUBSTANCES ON ELECTRICAL AND ELECTRONIC EQUIPMENT, ETC. THE U.S. GOVERNMENT ALSO PREVIOUSLY RAISED OBJECTIONS CONCERNING CHINA'S ADOPTION OF SIMILAR RULES.]</span></strong></div><br /><br /><br /><div align="justify"></div><div align="justify"></div><div align="justify"><strong><span style="font-size:180%;">[</span><span style="font-size:130%;"><em>See</em> Lawrence Kogan, <em>Exporting Precaution: How Europe's Risk-Free Regulatory Agenda Threatens American Free Enterprise</em>, Washington Legal Foundation (Nov. 2005), at:</span> </strong></div><div align="justify"><a href="http://www.itssd.org/White%20Papers/KoganMonograph.pdf"><strong>http://www.itssd.org/White%20Papers/KoganMonograph.pdf</strong></a> <strong><span style="font-size:180%;">].</span></strong></div><br /><div><br /><br />"Electronic products, such as computers and televisions, contain lead, mercury, cadmium, and similar hazardous materials," Lyons explained. <strong><span style="font-size:130%;color:#33ff33;"><em>"My bill simply provides a system for the recycling of electronic products as a means of limiting the release of these dangerous heavy metals from landfills and thereby protecting the environment and public health in Vermont."</em></span></strong><br /><br /><br />"After S256 was introduced and was under consideration in committee, I received an e-mail from Beijing. The e-mail included <strong><span style="font-size:130%;color:#ff0000;">a World Trade Organization document indicating that the U.S. federal government had notified a WTO Committee that S256 could be in violation of international trade law.</span></strong> Also attached was a cover letter from Wang Ni Ni, Director General of the China WTO Notification and Enquiry Center, and official comments by the Peoples Republic in response to the U.S. notification to the WTO regarding S. 256."<br /><br /><br />"And right on the front of that mailing from China was my home address and telephone," Lyons added, "which wasn't exactly what I would expect from an official communication regarding a WTO matter. It was a bit unnerving."<br /><br /><br /><strong>Two weeks ago, at the Annual Meeting of the National Conference of State Legislatures, Senator Lyons introduced a resolution deploring China's action, and alerting other state legislators to this new pushback</strong>. [The text of this Resolution can be found at<br /><a href="http://www.ncslorg/printlstandcommlsclaborecon/ChinaLyons.pdf">http://www.ncsLorg/printlstandcommlsclaborecon/ChinaLyons.pdf</a> ] <strong>The resolution passed unanimously from the initial committee of jurisdiction and is now pending in a second committee</strong>.<br /><br /><br />"This was an important step to educate legislators about what's at stake here. <strong><em><span style="font-size:130%;">I understand that the global trade rules mean that the United States is supposed to notify the WTO about major regulatory changes. How the Chinese concluded from this that they had a right to intervene in a state legislative process, long before new regulations are written, is quite beyond me.<br /></span></em></strong></div><div></div><div align="justify"><strong><span style="font-size:180%;">[WAKE UP MS. LYONS!!!!]</span></strong></div><div align="center"><br /><br />"I just hope the Chinese weren't being encouraged to file complaints against state legislation by our own federal trade officials in Washington," concluded Senator Lyons.<br /><br /><br /><strong><span style="font-size:130%;">WTO/TBT<br />China WTO/TBT National Notification & Enquiry Center<br /></span></strong>No.7, Ma Dian Dong Ac, Uai Dian District, Beijing, China, TeL 86 10 8226 0618 Fax: 86 0 8226 2448<br /><br /><br />FAX<br />TO.<br />National Center for Standards and<br />Certification Information (NCSCI)<br />National Institute of Standards and<br />Technology (NIST)<br />100 Bureau Drive<br />MS-2 160 Gaithersburg, MD USA<br />20899-2160<br />Tel:-i-(1301)975 4040<br />Fax ±(1 301)9261559<br />E-mail: <a href="mailto:ncsci@nist.gov">ncsci@nist.gov</a><br />Website:http:/!ts.nist.gov/ncsci</div><div></div><div align="center"><br />Senator Virginia Lyons<br />241 White Birch Lane<br />Williston,VT 05495 USA<br />Tel: +(802) 863 6129<br />Email: vlyons@leg.state.vt.us<br />url: http://www. legstate.vt.us<br /><br />Date: , 2008<br />Number of pages: 2+3<br />Copies:<br /><br />Department for WTO Affairs, Ministry<br />of Commerce of P.R.China<br />Fax: +86 10 65 197726;65 128304<br />E-mail: wtonoti@mofcom.rnv.cn<br />liuna@mofcom.gov.cn<br />Permanent Mission of P.R. of China to WTO<br />Fax: +41-22-9097699/9097688<br />E-mail: guoxueyan9999@gmail.com<br /><br />WTO Affairs Office, General,<br />Administration for Quality, Supervision, Inspection and Quarantine, PR.C.<br /><br />Fax: +86 10 82260553<br />E-mail: jo@atsig.gov.ca<br />xuj @aqsiq.gov.cn<br /><br />Department for Supervision on Inspection, AQSIQ of P.R.China<br />Fax: +86 10 82261949<br />E-mail: ijusy@agsig,gov.cn<br />From:<br /><br />China WTO/TBT National Notification & Enquiry Center, Standard and Regulation Researching Center, AQSIQ, P.R,China<br />Tel: 86-10-82260618<br />Fax: 86-10-82262448<br />E-mail: tbtP aqsiq.gov.c n<br />Subject:<br /></div><div></div><div align="center"><br /><strong>Comments on USA Notification G,TBT/N/USAJ34O<br />An Act Relating to the Disposal of Electronic Waste. S256</strong></div><div><br /></div><div align="center"><strong>Comments on USA Notification G/TBT/N/USA/34O<br /></strong></div><div align="center"><br /><strong>An Act Relating to the Disposal of Electronic Waste, S256<br /></strong><br /><br /></div><div>Dear Sir or Madam,<br /><br />We appreciate the opportunity to submit comments on the regulation under the notification proposed by State of Vermont.<br /><br /><br />Enclosed please find comments in English and Chinese.<br /><br /><br />Please acknowledge receipt of the comments by e-mail to <a href="mailto:tbt@agsig.gov.cn">tbt@agsig.gov.cn</a>. Thank you very much in advance for State of Vermont consideration of our comments.<br /><br /><br />Formal reply from State of Vermont will be appreciated.<br /><br /><br />Best regards<br /><br /><br />Wang NiNi<br />Director General<br />China WTO/TBT National Notification & Enquiry Center<br />No. 9 Ma Dian Dong Lu, Hai Dian District, Beijing<br />Post Code: 100088<br />Tel: 86-10-82260611/0619<br />Fax:86- I 0-82262448<br />E-mail: <a href="mailto:4kt@aqsiq.gov.cn">4kt@aqsiq.gov.cn</a><br /><br /><br /><strong>Comments from China on USA Notification<br />G/TBTIN/USA/340<br /></strong><br /><strong>An Act Relating to the Disposal of Electronic Waste, S256</strong><br /><br /><br />China appreciates U.S. for fulfilling WTO transparency obligation, to notify Notification G/TBT/N/USA/340. After careful study, we hereby put forward the following comments on the notified regulation.<br /><br /><br />I. <strong><span style="font-size:130%;color:#ffcc00;">China thinks the registration fee referred in Article 7303-(a) of the notified regulation lacks science, which is likely to result in unfairness, and will create unnecessary obstacles to the trade. The article is not in consistency with Article 2.2 of TBT Agreement</span></strong>, "Members should ensure that technical regulations are not prepared, adopted or applied with a view to or with the effect of creating unnecessary obstacles to international trade." Therefore, China suggests canceling or revising the article of the regulation. Specific reasons are as follows:<br /><br /><br />a) In Article 7303(a) (2) of the notified regulation, "The registration fee for the initial program year during which a manufacturer's video display devices are sold is $5,000.00. Each year thereafter, the registration fee is equal to a base of $2,500.00, plus a variable recycling fee calculated according to the formula in subdivision (3) of this subsection."; as wet! as in Article 7303-(a) (6) of the notified regulation, "The registration fee for the initial program year and the base registration fee thereafter for a manufacturer who produces fewer than 100 video display devices for sale annually to households is $1,250.00."<br /><br /><br />b) The manufacturer pays the "variable recycling fee" according to provisions of the proposal, and both registration fee for the initial program year and the base registration fee thereafter added based on this are unreasonable. Difference in the market sales amounts results in difference in unit cost increase of the manufacturer. which is obviously unfair. <strong><span style="font-size:130%;color:#ffcc00;">Therefore, we don't think it is scientific for the determination of above registration fees</span></strong>. b) What's more, similar proposals involved in the notifications of US confederation member states Missouri and Virginia, G/TBTINIUSAI332, G/TBT/N/USA1333, G/TBTINIUSAI342, all don't provide for payment of registration fee.<br /><br /><br />c) In Article 7303-(a)-(3)(E) of the notified draft, E (the estimated per pound cost of recycling used to calculate the variable recycling fee) is set at 0.5 dollar per pound. which may obviously increase the cost of the video display devices sold to households. Take CRT display devices as an example, it is estimated that the cost will increase by IO3O%. Please provide detailed scientific basis for such determination of the value, taking account of reducing the value as much as possible.<br /></div><p>d) d) In Article 73O3(a)(3) (C) of the notified regulation, it is provided that, "C = the number of pounds of recovered electronic devices recycled by a manufacturer from households during the previous program year, as reported to the agency under section 7305 of this title", it is lack of science and operability to determine the data, which is likely to create unfairness. Reasons are in below:<br /><br /><br />i For <strong><span style="color:#ffff00;">small manufactures newly entering into the market of the state, compared with large and local manufactures in the terms of recovery and collection channels or recovery technology control and use, they are obviously in an inferior position, which may likely result in more cost for them to obtain pounds for equivalent recovery designated electronic devices</span></strong>.<br /><br /><br />ii. The value relies on statistics and feedback of the recycler, while there isn't any provision relating to obligation of the recycler to provide true and comprehensive recovery data in the regulation, which is likely to result in incorrect value statistics as well as bad operability.<br /><br /><br />2. Effective date and approval time limit<br /><br /><br />a) It is stipulated in Article 73O2(b)-(5) that, "A registration is effective upon receipt by the agency and is valid until July 1 of each year". We think it is inappropriate to fix the effective date of registration to a fixed date, and it is suggested for U.S. to revise this article.<br /><br /><br />b) It is suggested to clearly define the acceptance and approval time limit of the agency of natural resources after the manufacturer applies for registration with the agency,<br /><br /><br />3. It is suggested to consider adding in Article 73O5(b): the recycler should cooperate with the manufacturer in the inspection and tracking, and provide the evidence indicating the recycling and disposal of covered products by the manufacturer and whether the product of the manufacturer is recycled without permission or sold after simple repair.<br /><br /><br />4. The responsibility of the collector throughout the recycling link is not stated in the regulation. It is suggested that the responsibility of the collector be added in the article.<br /><br />Comments in Chinese are as follows…<br /><br />----------------------------------------------------------------------------------------<br /></p><div><strong><span style="font-size:180%;"></span></strong></div><div><span style="color:#3333ff;"><strong><span style="font-size:180%;">Forum on democracy & trade</span></strong><br /></span><br /><br /><strong><span style="font-size:130%;">Preliminary Analysis of Allegations by the Peoples Republic of China (PRC) Regarding S.256 (2008) Introduced by Senator Virginia Lyons<br /></span></strong><br /><br /><strong><span style="font-size:130%;">Introduction</span></strong><br /><br /><br />International trade agreements are negotiated by the United States Trade Representatives (USTR). <strong><em><span style="font-size:130%;color:#ffff00;">Individual states are not involved in the negotiations, although trade agreements are presented to Congress. The 1974 Trade Act gives states very little policy input on trade, despite the fact that economic decisions regarding trade have powerful consequences for cities and states. There is only one advisory group to USTR that includes representatives from states</span></em></strong>.<br /></div><p><strong><span style="font-size:180%;">States have not found this limited input to be sufficient to protect state interests</span></strong>. As a result, several states, including Vermont, Maine and New Hampshire, <em><strong><span style="font-size:180%;color:#33ff33;">have created special Commissions to explore the impacts of international trade agreements on state sovereignty and to communicate state interests with USTR, other states, and Congress.<br /></span></strong></em><br /><br /><strong><span style="font-size:130%;">Analysis of Objections<br /></span></strong><br /><br />The United States sent a notice to the World Trade Organization (WTO) about Senator Lyons bill, S,256. Based on a notification document issued by the WTO Committee on Technical Barriers to Trade, it appears that the PRC allegations are a response to a U.S. notification filed with the WTO related to Senator Lyons' bill.<br /><br /><br />The WTO Agreement on Technical Barriers to Trade contains various rules governing "technical regulations." The term "technical regulation" is defined as a "document which lays down product characteristics or their related processes and production methods...." (TBT Agreement, Annex 1). <strong><span style="font-size:130%;color:#ffcc00;">The proposed Vermont legislation, it might be argued, constitutes a "technical regulation" because it is related to product characteristics - i.e. specified types of electronic products containing heavy metals and other dangerous substances</span></strong>. At the same time, it might be argued that the essential thrust of the bill, to establish and finance a system of electronic product recycling, is not "technical regulation." Furthermore, it is not even clear that Chinese manufacturers are covered by the definition of "manufacturers" in S25, although any additional regulatory and financial burdens carried by their U.S. distributors as a result of the legislation might have some impact on the volume of sales in Vermont that could indirectly reduce the profits of Chinese firms. <strong><span style="font-size:130%;color:#ff0000;">Nonetheless, the PRC, the U.S. federal government, and the WTO are treating it as a technical regulation subject to WTO jurisdiction.<br /></span></strong><br /><br /><strong><span style="color:#ffff00;"><span style="font-size:130%;">Under Article 3.2 of the TBT Agreement, WTO member nations, including the United States, are required to notify other members whenever a state or provincial government such as Vermont proposes to enact a "technical regulation" that is not based on international standards and that will have a "significant effect on trade of other IWTOI Members." See Articles 3.2 and 2.9.2.</span><br /></span></strong><br /><br /><strong><span style="font-size:130%;color:#ffff00;">The notification is required to be made "at an early appropriate stage, when amendments can still be introduced, and comments taken into account."</span></strong> <strong><span style="font-size:130%;color:#ff0000;">It seems that the U.S. federal government notified the WTO of the Lyons legislation pursuant to Article 3.2 of the TBT.<br /></span></strong><br /><br /><strong><span style="font-size:180%;color:#33ff33;">The WTO notification on S256 cites the "protection of human life and health" as the 'objective and rationale' of the legislation. Unlike several other WTO agreements, the TBT does not have a 'general exception' regarding the "protection of human life and health."</span></strong> A country might attempt to challenge such a legislative measure by claiming that the regulation will not be implemented in the 'least trade restrictive' way possible; is discriminatory against foreign commerce; does not follow international standards; gives too much discretion to regulators; etc.<br /><br /><br /><span style="font-size:130%;"><strong>These are the kinds of complaints that might be made by the PRC.</strong><br /></span><br /><br />The PRC alleges that the Lyons bill violates WTO law, Without much explanation, the Peoples Republic declares that Senator Lyons' bill is inconsistent with <strong><span style="font-size:180%;">Article 2.2 of the TBT Agreement</span></strong>, which states that "Members should ensure that technical regulations are not prepared, adopted or applied with a view to or with the effect of creating unnecessary obstacles to international trade." <strong><span style="font-size:180%;">Under this strict "necessity test," trade values arguably trump other public policy values unless there is no conceivable alternative policy that is less burdensome on trade.</span></strong> The PRC asserts, also without much factual or legal explanation:<br /><br /><br />• That registration fees and recycling fees paid by manufacturers under S256 are unfair and not determined on a scientific basis;<br /><br />• That similar regulatory proposals in Missouri and Virginia do not require payment of a registration fee by manufacturers (perhaps suggesting that a registration fee is an "unnecessary obstacle" to international trade?);<br /><br />• That the variable recycling fee may increase the cost of video display devices by 10 to 30 percent;<br /><br />• That the annual administrative process for calculating the pounds of electronic devices recycled by a manufacturer from households has no scientific basis, is unfair to small manufacturers entering the Vermont market, and relies on statistics and feedback from recyclers who are under no obligation to furnish reliable data; and<br /><br />• That revisions are needed in the bill related to the effective date for registration by manufacturers, a more clearly defined time schedule for agency acceptance and approval of a registration, and greater specification of the responsibilities of collectors and recyclers.<br /><br /><br /><strong><span style="font-size:130%;">Conclusion<br /></span></strong><br /><br /><strong><span style="font-size:130%;color:#3333ff;">As illustrated by this event, other countries could and are beginning to use the trade system to apply pressure to state legislatures and to impact the state legislative process. Since trade promotion authority has expired, states see an opportunity to evaluate the process for providing input on trade issues and to improve federal-state communication</span></strong>. A new system for improving communication between states, USTR, and Congress should be a strong priority for the next Congress and President to ensure that out democratic system of government is protected.<br /><br /><br />For more information, contact Peter Riggs, <a href="mailto:dggs@forumdemocracy.net">dggs@forumdemocracy.net</a> or William Waren, <a href="mailto:wtw2@law.georgetown.edu">wtw2@law.georgetown.edu</a><br /></p><p></p><p><span style="font-size:130%;"><strong>[APPARENTLY, <span style="color:#3333ff;">FORUM FOR DEMOCRACY</span>, A POLITICALLY MOTIVATED DEMOCRATIC PARTY NON-GOVERNMENTAL ORGANIZATION, IS ADVOCATING U.S. TRADE POLICIES THAT CLOSELY RESEMBLE A BILL THAT WAS PROPOSED DURING SPRING-SUMMER 2008 IN CONGRESS, WHICH WOULD HAVE CAUSED GREAT HARM TO U.S. INTERNATIONAL TRADE AND FOREIGN RELATIONS. See <em>OBAMA-BROWN-MICHAUD Non-Tariff Trade Barrier Act Likely to Devastate US Economy, Trigger a Global Trade War & Endanger World Peace</em>, ITSSD Journal on Disguised Trade Barriers, at: </strong></span><a href="http://itssddisguisedtradebarriers.blogspot.com/2008/06/us-trading-partners-beware-obama.html"><strong>http://itssddisguisedtradebarriers.blogspot.com/2008/06/us-trading-partners-beware-obama.html</strong></a> ].</p><div><span style="font-size:130%;"><strong></strong></span></div><div><span style="font-size:130%;"><strong>[STATES MUST REMEMBER THAT THEY CANNOT ENACT INITIATIVES THAT INTERFERE WITH THE CONSTITUTIONAL AUTHORITY OF THE PRESIDENT AND THE CONGRESS TO CONDUCT FOREIGN COMMERCE AND FOREIGN AFFAIRS, OR OTHERWISE IMPAIR THE TREATY POWER ENJOYED BY THE EXECUTIVE & LEGISLATIVE BRANCHES OF THE FEDERAL GOVERNMENT. See <em>New Jersey, Other States Tread on Thin LegaI Ice: Declare Right to Impair President's & Congress' Constitutional Authority to Conduct Foreign Commerce,</em> ITSSD Journal on Disguised Trade Barriers, at: </strong></span><a href="http://itssddisguisedtradebarriers.blogspot.com/2008/08/new-jersey-other-states-tread-on-thin.html"><strong>http://itssddisguisedtradebarriers.blogspot.com/2008/08/new-jersey-other-states-tread-on-thin.html</strong></a> .]</div><div></div><div>-------------------------------------------------------------------------------------------------</div><div align="left"><br /><br />115 STATE STREET <strong>STATE OF VERMONT</strong> PHONE: (802) 828-2228<br />MONTPELIER, VT 05633-5201 <strong>SENATE CHAMBER</strong> FAX: (802) 828-2424<br /><br /><br />7 August 2008<br /><br /><br />Bryan O'Byrne<br />Trade Compliance Center<br />International Trade Administration<br />Deartment of Commerce<br />14 Street and Constitution Avenue NW<br />Washington, D.C. 20230<br /><br /><br />Dear Mr. O'Byrne,<br /><br /><br />During the 2008 Vermont legislative session, I put forward a bill designed to regulate the movement and handling of toxic materials from used electronics, a so-called se-waste bill.' Imagine my surprise when several weeks later I received <strong><span style="font-size:180%;color:#ff0000;">a threatening notice</span></strong> <strong><span style="font-size:180%;">[???]</span></strong> from the People's Republic of China's WTO Compliance Center in Beijing, attempting to dissuade me from pursuing this bill in the Vermont Senate. Given your role in the Department of Commerce's Trade Compliance Center I am wondering if you could shed some light on this turn of events.<br /><br /><br /><strong><span style="font-size:180%;color:#33ff33;">I chair the Vermont's Senate Natural Resources Committee. I have a Master's Degree in Nutritional Biochemistry (Rutgers) and a Doctorate from the University of Vermont in Planning and Administration, and consequently am very familiar with both the science and legislative <span style="color:#3333ff;"><em>politics</em></span> of electronic waste disposal debates</span></strong>. As a board member of Parent to Parent Vermont and mother of two daughters, I am also deeply concerned about the impact of toxics in our environment. The e-waste bill (S. 256) was designed to address those concerns <strong><span style="font-size:130%;color:#3333ff;">in a manner that in no way discriminates against foreign electronics manufacturers, or impacts negatively on international trade in any way.<br /></div></span></strong><div></div><div><br /><strong><span style="font-size:180%;">[MS. LYONS - YOU WOULD NEED TO PROVE IT, IF YOU CAN.]</span></strong></div><div><br /><br />The bill was published in committee on January 7. It notes that <strong><em><span style="color:#33ff33;">"the establishment of a system to provide for the collection and recycling of electronic devices in Vermont is consistent with the state's duty to protect the health, safety, and welfare of its citizens; maintain and enhance the quality of the environment; conserve natural resources; prevent pollution of air, water, and land; and stimulate economic growth."</span></em></strong> The bill did not pass during this legislative session-due to limited time available during the legislative session, rather than any local opposition.<br /><br /><br /><span style="color:#ff0000;"><strong>Opposition, it seems, has come from a very different quarter. By following the 'paper trail' back from China, we have found that the Department of Commerce, and/or the Office of the United States Trade Representative (USTR), notified Beijing of the August 7th 2008 existence of this bill by January 10th -just a couple days after the bill would have been published on a state website. The China WTO-TBT Compliance Center sent a letter challenging provisions of my bill in early April of this year</strong>.</span> Most disturbingly for me, China referenced my home address in making their complaint.<br /><br /><br />I would very much appreciate it if you could respond to these questions and concerns:<br /><br /><br />a) Is your office designated the national inquiry point' for the WTO-TBT agreement? How do you and your staff interact with other 'national inquiry points', such as the one that wrote me from China?<br /><br /><br />b) <strong><span style="color:#ffcc00;">Do you prepare a listing of proposed state laws with any new regulations potential impacts on international trade to notify other countries? Does the Trade Compliance Center have dedicated staff working to review state laws and proposed technical standards?<br /></span></strong><br /><br />c) <strong><span style="font-size:130%;color:#ffcc00;">How do you interpret the phrase, "draft regulations"? We understand that the United States has an obligation to notify other WTO member states if the U.S. has proposed changes in regulations that could impact on international commerce</span></strong>. Is it standard procedure to notify trading partners before such laws are passed-that is, well in advance of the actual drafting of regulations?<br /><br /><br />d) How does the Department of Commerce interpret the provision in the TBT that allows for a comment period before the publication of new technical standards and regulations? <strong><span style="font-size:130%;color:#ffff00;">Is it Commerce's position that foreign trading partners should be allowed to comment on proposed state laws prior to their debate on the floor of the legislature?<br /></span></strong><br /><br />e) Does the Department of Commerce have resources available to assist state legislatures, executive agencies, and offices of attorney general to respond to comments submitted by U.S. trading partners?<br /><br /><br /><strong><span style="font-size:130%;color:#ff0000;">The Commerce Department website indicates that the United States previously raised concerns about China's regulatory environment regarding toxic chemicals. Could you briefly state what those concerns were? Do you feel that China's action against Vermont's law-making powers could be a form of retaliation against the US inquiry?<br /></span></strong><br /><br /><strong><span style="font-size:180%;color:#000099;">Knowing that China pushed back' on the 2003 European Union-Directive on Waste Electrical and Electronics Equipment</span>-<span style="font-size:180%;color:#33ff33;">and that most of the action in addressing c-waste concerns within the U.S. is happening at the state level</span>-<span style="font-size:180%;color:#ff0000;">I am concerned that China's TBT notification to Vermont was an attempt to weaken emerging global standards on e-waste and on cradle-to-cradle' manufacturing standards</span></strong><span style="font-size:180%;color:#ff0000;">.</span> A weakening of these standards may very well provide international competitive advantage to Chinese firms, given that they do not have strict c-waste standards to adhere to in their home markets.<br /><br /><br />Let me close by stating how much we appreciate the work that you do on behalf of American exporters. As a percentage of total exports by value, Vermont is more dependent on 'high-tech' exports than any state in the nation. The Department of Commerce's support of marketing opening efforts, and its 'US Notify' website, are important tools in expanding opportunities for U.S. companies. We are concerned about the competitiveness of our own electronics firms; we wish to maintain the high standards of environment and public health which are a key part of Vermont's market 'brand' and its attractiveness as a business destination; and at the same time, we intend to take every democratic measure necessary to keep e-waste out of our landfills and to protect our environment and the health of Vermont's children.<br /><br /><br />Thank you very much for your kind attention to these matters, I look forward to hearing from you in writing via my legislative office:<br /><br /><br />Sincerely yours,<br /><br /><br />Senator Virginia Lyons<br /><br /><br />cc: Dana Eidsness, Vermont International Trade Director, USTR State Point of Contact<br />Kay Wilkie, Chair, InterGovernmental Policy Advisory Committee (IGPAC)<br />Tiffany Moore, Director, Public Liaison Office, USTR<br />Peter Shumlin, Senate ProTem, Vermont Legislature<br />Hon. Peter Welch, Representative<br />Hon. Bernie Sanders, Senator<br />Hon. Patrick Leahy, Senator<br /></div><div></div><div><strong><span style="font-size:180%;">[HALLELUJAH!!! MS. LYONS IS LEARNING!!]</span></strong></div><div></div>ITSSD Charitable Missionhttp://www.blogger.com/profile/00790887154748866904noreply@blogger.com0tag:blogger.com,1999:blog-7037944389322160928.post-42211843274372632312008-08-20T18:13:00.000-07:002008-08-20T19:08:41.430-07:00New Jersey, Other States Tread on Thin LegaI Ice: Declare Right to Impair President's & Congress' Constitutional Authority to Conduct Foreign Commerce<a href="http://www.forumdemocracy.net/downloads/New%20Jersey%20Assembly%20Majority%20Office,%20May%2022,%202008.pdf">http://www.forumdemocracy.net/downloads/New%20Jersey%20Assembly%20Majority%20Office,%20May%2022,%202008.pdf</a><br /><br /><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhqMWPZl3IZe5DRAcXusc8rgimaLbrew4bRzXkGcGAdTM-uOuFsLj_9QV60cdlmzcR2gmNQj2cVwtPoNlYPdwAiWVpSHWjqX0MqUPaceAFSXg_PPcopX8EYuyHcgFiiFvz5np2atcFKKUMf/s1600-h/NJ+state+symbols.gif"><img id="BLOGGER_PHOTO_ID_5236776204146572434" style="FLOAT: left; MARGIN: 0px 10px 10px 0px; CURSOR: hand" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhqMWPZl3IZe5DRAcXusc8rgimaLbrew4bRzXkGcGAdTM-uOuFsLj_9QV60cdlmzcR2gmNQj2cVwtPoNlYPdwAiWVpSHWjqX0MqUPaceAFSXg_PPcopX8EYuyHcgFiiFvz5np2atcFKKUMf/s200/NJ+state+symbols.gif" border="0" /></a><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjTyptlFwCQP5RiBuxN6mk0I9dgmUcCBdHhpj17Sqj2yQ8n9ihYMRMtT-9QYs7j-GTeogFBWeTobvg_7yZAtliftXOwCPsgvyH6k-xL1xbpqLZNaxjm4cu-CGYSMP8T4o2zi1IpQXsky-KR/s1600-h/newjersey-seal.jpg"><img id="BLOGGER_PHOTO_ID_5236774772322335074" style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 203px; CURSOR: hand; HEIGHT: 192px" height="180" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjTyptlFwCQP5RiBuxN6mk0I9dgmUcCBdHhpj17Sqj2yQ8n9ihYMRMtT-9QYs7j-GTeogFBWeTobvg_7yZAtliftXOwCPsgvyH6k-xL1xbpqLZNaxjm4cu-CGYSMP8T4o2zi1IpQXsky-KR/s320/newjersey-seal.jpg" width="188" border="0" /></a><strong><span style="font-size:130%;"><span style="font-size:180%;color:#33ff33;">EGAN'S 'JOBS TRADE AND DEMOCRACY ACT' ADVANCES - Measure Would Reinforce Legislature's Role in Decisions to Bind New Jersey To International Trade Agreements</span><br /></span></strong><br /><div><br /></div><div><strong><span style="font-size:130%;color:#ffff00;">New Jersey Assembly Majority Office<br /><br /><br />Speaker, Joseph J. Roberts, Jr., Majority Leader Bonnie Watson Coleman and Speaker Pro Tempore Jerry Green </span></strong></div><div><br /><br />May 22, 2008<br /><br /><br />(TRENTON) - The Assembly Labor Committee today released legislation Assemblymen Joseph V. Egan sponsored <strong><em>to provide the public and lawmakers in New Jersey the opportunity to weigh-in on federal international trade policies <span style="font-size:180%;color:#ffcc00;">that could potentially impact the state's economy</span></em></strong>.<br /><br /><br /><strong><em><span style="font-size:130%;color:#3333ff;">"In today's global marketplace, international trade agreements have a significant impact on our New Jersey's economy, business and jobs," said <span style="font-size:180%;">Egan (D-Middlesex)</span>, chairman of the labor panel.<br /></span></em></strong><br /><br />"In these challenging economic times, we must ensure that New Jersey's voice can be heard loud-and-clear before we bind ourselves to accords that may have a detrimental impact on jobs and the economy in the state."<br /><br /><br /><strong><span style="font-size:130%;color:#ffcc00;">Egan noted that states have enjoyed a significant measure of autonomy to set their own procurement policies. <em>However, recent international trade pacts - including the World Trade Organization's Agreement on Government Procurement, bilateral accords with Chile and Australia, and a growing number of multi-lateral trade agreements - have sought to impose broad restrictions on the ability of a state to set its own procurement rules</em>. </span></strong><br /><br /><br /><strong><span style="font-size:180%;">An individual state's decision to abide by international trade agreements negotiated by the United States Trade Representative (USTR) is purely voluntary and have traditionally been given through letters of consent from a governor to the USTR. However, few legislatures have recognized and exercised their power to help determine whether such consent should be given.<br /></span></strong><br /><br />"The decision to bind New Jersey to an agreement that would directly impact jobs and business in our state should be done with the Legislature's advise and consent," said Egan.<br /><br /><br /><strong><span style="font-size:130%;color:#33ff33;"><em>The Assemblyman noted that in the case of the Central American Free Trade Agreement, the governors of six states - Iowa, Maine, Minnesota, Missouri, Oregon and Pennsylvania - actually withdrew their letters of consent. Governors in Montana and Wisconsin have informed the USTR of their intentions to not bind their states to future trade agreements</em></span></strong>. </div><div><br /> </div><div></div><div><strong><span style="font-size:180%;">[</span><span style="font-size:130%;">See, e.g., <em>National Conference of State Legislatures Votes Down Resolution Supporting Colombia FTA Second Time in Three Months</em>, Public Citizen Global Trade Watch (July 24</span></strong>, 2008) at: <a href="http://www.citizen.org/hot_issues/issue.cfm?ID=1963"><strong>http://www.citizen.org/hot_issues/issue.cfm?ID=1963</strong></a> .<strong><span style="font-size:180%;">]</span></strong></div><div><br /><br /><strong><span style="font-size:130%;">Egan's measure (A-2754) - the "Jobs, Trade and Democracy Act" - would cement the Legislature's role in setting statewide trade policy by empowering state legislators to play a direct role in the decision to bind New Jersey to a trade agreement.<br /></span></strong><br /><br />Egan's legislation would:<br /><br />• Require lawmakers approve any provision that would bind New Jersey to a trade agreement;<br />• Provide for the designation of four members of the Legislature to serve as official liaisons with the Governor's office and the federal government on trade policy;<br />• Establish a Citizen's Commission on Jobs, Trade and Democracy to monitor trade negotiations and disputes and assess the social, environmental, legal, and economic impacts of trade agreements and proposed trade agreements through public hearings;<br /><br /><br />"It is likely that only a few in Trenton have ever recognized that we have a direct role to play in the setting of fair international trade policy," said Egan. <strong><span style="font-size:130%;color:#33ff33;">"Protecting, preserving, and promoting our state's economy in the global marketplace cannot simply be left to federal officials in the White House. We must ensure that decisions which will impact New Jersey are, in fact, made in New Jersey."<br /></span></strong><br /><br />The bill was released from the committee 8 to 0 with 1 abstention. It now heads to the Assembly Speaker, who decides if and when to post them for a floor vote. </div><div></div><div></div><div></div><div><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhjF3tr-A83tqPVoCBWwa9M0DQGO0AtXYAuLYPlYx6cXmWNisXeOFL0AwgiMe3ykz349lAaM0qlWg73AER2VlqFtdfp7zDxqM0WXOQFFSejt5o6djX_7A7s6O7SwHmzCq-yDsdxYYiEaPKA/s1600-h/constitution_quill_pen.jpg"><img id="BLOGGER_PHOTO_ID_5236777381051462898" style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 392px; CURSOR: hand; HEIGHT: 271px" height="271" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhjF3tr-A83tqPVoCBWwa9M0DQGO0AtXYAuLYPlYx6cXmWNisXeOFL0AwgiMe3ykz349lAaM0qlWg73AER2VlqFtdfp7zDxqM0WXOQFFSejt5o6djX_7A7s6O7SwHmzCq-yDsdxYYiEaPKA/s400/constitution_quill_pen.jpg" width="370" border="0" /></a></div><div><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEj1leXKBOnDjbofuz8aveWc4NcpVd9niaGUFuyYYIWRELw-cOi5ivStn0iW3FqOJn86gMQzMUbdhF94QBNnYXIUumYs6e5LUtWy23vl7YZU_2VBGBkfOyPU8y76IbXIlasH9MSE8df2KqLc/s1600-h/constitution_quill_pen.jpg"></a></div><div><strong><span style="font-size:130%;">[IT IS ONE THING FOR NEW JERSEY AND OTHER STATES TO OBJECT TO AN INTERNATIONAL TRADE AGREEMENT BROKERED/ NEGOTIATED BY the U.S. TRADE REPRESENTATIVE (USTR) WHICH IS SHOWN TO HAVE PROBABLE OR LIKELY NEGATIVE EFFECTS ON STATE INTERESTS, NOT MERELY POENTIAL, POSSIBLE or</span></strong></div><div><strong><span style="font-size:130%;">HYPOTHETICAL NEGATIVE IMPACTS.]<br /><br /><br />[YET, IT IS ENTIRELY ANOTHER, WHERE NEW JERSEY AND OTHER STATE LEGISLATURES AND ADMINISTRATIVE AGENCIES ENACT LEGISLATION and REGULATIONS (e.g., environmental, health or labor regulations) THAT WILL LIKELY IMPAIR THE PRESIDENT’S and CONGRESS’ PLENARY AUTHORITY TO CONDUCT FOREIGN AFFAIRS. SUCH STATE INITIATIVES ARGUABLY INTRUDE UPON THE CONSTITUTIONAL AUTHORITY OF THE PRESIDENT, SUBJECT TO THE CONSTITUTIONALLY SANCTIONED TREATY POWER OF THE CONGRESS, TO CONDUCT FOREIGN AFFAIRS ON BEHALF OF THE NATION, NOT TO MENTION THE AUTHORITY OF CONGRESS TO REGULATE COMMERCE WITH FOREIGN NATION. CONSEQUENTLY, SUCH INITIATIVES ARE THUS SUSCEPTIBLE TO CHALLENGE UNDER ARTICLE I, SECTIONS 8 AND 10, and UNDER ARTICLE II, SECTION 2, CLAUSES 1 AND 2 OF THE U.S. CONSTITUTION.]<br /><br /><br />[SIMILARLY, NEW JERSEY AND OTHER STATE RULES THAT ADVERSELY AFFECT INTERSTATE or FOREIGN COMMERCE ARE ALSO PROHIBITED BY THE U.S. CONSTITUTION. THIS IS ESPECIALLY THE CASE WHERE STATES ACT INDEPENDENTLY, BUT THIS RULE APPLIES, AS WELL, WHERE STATES ACT COLLECTIVELY, BY ADOPTING SIMILAR BUT NOT IDENTICAL (GENERALLY ‘UNIFORM’) RULES UNDER A COORDINATED MODEL FRAMEWORK. TO THE EXTENT THAT COMMERCE CROSSING INDIVIDUAL STATE, REGIONAL AND/OR NATIONAL LINES IS ADVERSELY AFFECTED BY THE IMPOSITION OF WHAT ARE ARGUABLY OTHER THAN THE LEAST TRADE RESTRICTIVE RULES AVAILABLE TO ACHIEVE A STATE’S LEGITIMATE PUBLIC POLICY GOALS, THERE MAY BE CAUSE TO CHALLENGE SUCH RULES UNDER ARTICLE I, SECTION 8, CLAUSE 3 OF THE U.S. CONSTITUTION (the Interstate and Foreign Commerce Clause). THIS PROVISION RESERVES TO THE CONGRESS THE “POWER…TO REGULATE COMMERCE WITH FOREIGN NATIONS AND AMONG THE STATES…”]<br /><br /><br />[<em>See</em> Lawrence A. Kogan, <em>The Extra-WTO Precautionary Principle: One European ‘Fashion’ Export the United States Can Do Without</em>, 17 Temple Political & Civil Rights Law Review 2 (2008) (<em>forthcoming</em>)]<br /></div></span></strong>ITSSD Charitable Missionhttp://www.blogger.com/profile/00790887154748866904noreply@blogger.com0tag:blogger.com,1999:blog-7037944389322160928.post-91633048614626445342008-08-12T18:44:00.000-07:002008-08-12T19:28:58.616-07:00UK Report Criticizing CO2-Embedded Imports from Developing Countries IS Nothing More Than Carbon Protectionism - With a Spot of 'Carbon Delusion'<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhQA5AgbtX7QP3fwQ6aBAJ_RIHt_Ngl6vgfmYGd63nA_ek9cIIJFK5eCRxZozOkJpnrgh2_FnYLyCV96rpkIW2rM0VDLIoDZmd-y5rLnd9BHPRL7R8cvg8WcQk3xZ5EUVGu13LEegpBT1Ji/s1600-h/grand_delusion_280.jpg"><img id="BLOGGER_PHOTO_ID_5233816093410500434" style="FLOAT: left; MARGIN: 0px 10px 10px 0px; CURSOR: hand" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhQA5AgbtX7QP3fwQ6aBAJ_RIHt_Ngl6vgfmYGd63nA_ek9cIIJFK5eCRxZozOkJpnrgh2_FnYLyCV96rpkIW2rM0VDLIoDZmd-y5rLnd9BHPRL7R8cvg8WcQk3xZ5EUVGu13LEegpBT1Ji/s400/grand_delusion_280.jpg" border="0" /></a><strong><span style="font-size:130%;color:#33ff33;">Development of Imbedded Carbon Emissions Indicator</span></strong><br /><br /><br /><em><strong><span style="color:#ffcc33;">"[T]he launch of the SCP framework has led to an increasing policy focus on the environmental impacts of the products consumed by households within the UK, wherever those impacts occur, and to a demand for a better understanding of the life cycle impacts of the whole range of goods and services consumed by British households. More recently there has been an increasing emphasis on the idea that British companies take some responsibility for the upstream impacts of the goods which they sell or use, on the environmental impacts of particular products such as clothing which are heavily dependent upon imports, and on the importance of ‘sustainability dialogues’ between the UK Government and key trading partners. Attention is therefore focusing not just on the overall impacts of trade to and from the UK, but on which sectors, products and countries the trade relates to."</span></strong></em><br /><br />(Rpt., p. 3)<br /><br /><br />Dear Dr. Kogan,<br /><br /><br />The UK Department for Environment, Food and Rural Affairs (DEFRA) commissioned the Stockholm Environment Institute (SEI) at the University of York and the Centre for Integrated Sustainability Analysis (ISA) at the University of Sydney for a research study regarding the "DEVELOPMENT OF AN EMBEDDED CARBON EMISSIONS INDICATOR." (Please see attached copy.)<br /><br /><br />[Wiedmann, T., Wood, R., Lenzen, M., Minx, J., Guan, D. and Barrett, J. (2008) Development of an Embedded Carbon Emissions Indicator – Producing a Time Series of Input-Output Tables and Embedded Carbon Dioxide Emissions for the UK by Using a MRIO Data Optimisation System, Report to the UK Department for Environment, Food and Rural Affairs by Stockholm Environment Institute at the University of York and Centre for Integrated Sustainability Analysis at the University of Sydney, June 2008. Defra, London, UK<a href="http://randd.defra.gov.uk/Document.aspx?Document=EV02033_7331_FRP.pdf" target="_blank">http://randd.defra.gov.uk/Document.aspx?Document=EV02033_7331_FRP.pdf</a> ].<br /><br /><br />According to its authors, a new modeling approach, called multi-region input-output analysis, was developed specifically for the UK and thoroughly tested for its robustness. This study provides an insight into the impacts of all the goods and services consumed by British households, including those emissions that occur in countries exporting to the UK, which are usually excluded from standard emissions analysis. According to the results listed in Table 2, page 21, the Consumers Emissions increased from 647.2 million tones in 1992 to 762.4 million tones in 2004. This represents an increase of 17.8%.<br /><br /><br />Carbon dioxide emissions embedded in imports went up from 35% of UK emissions in 1992 to 67% in 2004, while those embedded in exports increased from 31% to 45% of emissions over the same period. This suggests that while the UK has made progress in reducing its own carbon dioxide emissions, these reductions have been offset by increased emissions in other countries through the consumption of imported goods and services. Trade data also indicates an increasing dominance of emissions embedded in UK imports from newly emerging economies such as China, India and Russia.Roger Harrabin, BBC environment analyst, reports that these results "are a massive blow to the British government which claimed to have grasped the Holy Grail of climate policy - decoupling economic growth from emissions growth." (<a href="http://news.bbc.co.uk/2/hi/science/nature/7536421.stm" target="_blank">http://news.bbc.co.uk/2/hi/science/nature/7536421.stm</a> ).<br /><br /><br />Thank you for posting this note and accompanying report to your blog.<br /><br /><br />Sincerely,<br /><br /><br />Soren, Straja, PhD.<br />Blogmaster,<br />ITSSD Journal on Energy Security<br /><br />-------------------------------------------------------------------------------------------------<br />(<a href="http://news.bbc.co.uk/2/hi/science/nature/7536421.stm" target="_blank">http://news.bbc.co.uk/2/hi/science/nature/7536421.stm</a> )<br /><br /><br /><strong><span style="font-size:130%;">UK in 'delusion' over emissions<br /></span></strong><br /><br />By Roger Harrabin<br /><br /><br />BBC News<br /><br /><br />7/31/08<br /><br /><br /><strong><span style="font-size:180%;">The UK has been living <em><span style="color:#33ff33;">under a delusion</span></em> over its claim to be cutting greenhouse gases</span></strong>, according to two reports that will shake the climate change debate.<br /><br /><br />They show that <strong><span style="font-size:130%;color:#ff0000;">instead of falling since the 1990s, UK greenhouse emissions have been growing in line with the economy</span></strong>.<br /><br /><br /><strong><em><span style="color:#3366ff;">This is dependent on emissions from aviation, shipping and imported goods being counted. At the moment they are excluded under the internationally agreed system for carbon accounts</span></em></strong>.<br /><br /><br />Both reports are from the respected Stockholm Environment Institute (SEI) based at the University of York.<br /><br /><br />They are a massive blow to the British government which claimed to have grasped the Holy Grail of climate policy - de-coupling economic growth from emissions growth.<br /><br /><br />The government has known about this for a very long time but has just refused to face up to it Stuart Bond, <strong>WWF</strong>.<br /><br /><br />An SEI report to be published shortly by the campaign group WWF will suggest that the UK's total greenhouse gas emissions are 49% higher than reported emissions.<br /><br /><br />And a recent little-noticed report for the government department Defra showed that rather than going down 5% as ministers claimed, CO2 emissions have gone up 18% between 1992 and 2004 when all emissions are counted.<br /><br /><br />The government sat on the Defra SEI report since February, tested its calculations, then published it in an obscure press release on 2 July.<br /><br /><br />This confirms, as BBC News pointed out last year, that the UK's apparently virtuous carbon cuts have only been achieved because we are getting countries like China to do our dirty work.<br /><br /><br />Some would say this allows them to be blamed for increasing their CO2 emissions on our behalf.<br /><strong><em><span style="color:#ffff00;">In response, the government said the findings highlighted how important it was to tackle climate change on a global scale as well as at a national level</span></em></strong>.<br /><br /><br /><strong>"I think it's very misleading to say that these figures challenge our figures; they are a different calculation altogether," said Environment Minister Phil Woolas</strong>.<br /><br /><br />"You have to look at emissions globally. These figures will enhance the UK's credibility, not decrease it."<br /><br /><br /><strong><span style="font-size:130%;">Consumer boom </span></strong><br /><br /><br />The Defra-SEI report shows that <strong><span style="font-size:180%;color:#ff6600;">as manufacturing in the UK has closed down, some of the production has shifted to countries where manufacturing is more carbon intensive than it would be here</span></strong> - in other words, more CO2 is emitted per unit of production.<br /><br /><br />At the same time, the long consumer boom has led to <strong><span style="font-size:130%;color:#000099;">an increase in the volume and diversity of products being imported. This in turn leads to increased emissions from cargo shipping. Meanwhile, the cheap flights bonanza has pushed up emissions still higher</span></strong>.<br /><br /><br />Under internationally agreed methodology, emissions from international aviation, shipping and imports are not included in a country's greenhouse gas statistics, so this has allowed the UK government to calculate that its greenhouse gases have been falling.<br /><br /><br /><strong><em><span style="font-size:130%;color:#66ff99;">WWF says the new figures are "breathtaking" and make a mockery of the UK's claims of global leadership.</span></em></strong><br /><br /><br />Stuart Bond, WWF's head of research, said: "This shows our claims on emissions are simply a big lie.<br /><br /><br />"The government has known about this for a very long time but has just refused to face up to it.<br /><br /><br /><strong><span style="font-size:180%;color:#ff6600;">"There is no way the government can hope to achieve any of its emissions targets without cheating unless it changes its policies on encouraging flying and hoping to satisfy people's insatiable demands for buying more and more stuff."</span></strong><br /><br /><br /><strong><span style="font-size:130%;">Computer modelling</span></strong><br /><br /><br /><strong>A Defra source said of its SEI report: "It can't be absolutely precise but it is a best estimate of where we are.</strong> It is very much in line with other studies on the subject so we are fairly confident of it. It is very interesting background information."<br /><br /><br />The source said that it would be impossible to include the catch-all SEI figure alongside the UK's annual official emissions statistics because it was based on import/export figures from the Office of National Statistics which would not be updated until 2010.<br /><br /><br />It would also be undesirable to publish the figure annually, he said, because the "real" number relevant to the UK was the standard CO2 measure calculated according to UN principles.<br />The SEI report involved a lot of computer modelling, so the UK government "would not want to be held to an international target on it".<br /><br /><br /><strong>WWF said this was a very "convenient" position for the UK to take.</strong><br /><br /><br />John Barrett, author of the SEI reports to both Defra and WWF, said they could have implications for any post-Kyoto global climate deal.<br /><br /><br />"Holding China and India responsible for emissions from manufactured goods they sell to us is going to prove very hard to negotiate.<br /><br /><br />"It would be much easier to base any future deal on emissions at the point of consumption. That feeds into the equity debate in which poor countries will be allowed to increase their CO2.<br /><br /><br />"It's at the very least misleading for the UK government to claim reductions while we export our emissions. This is a problem no government wants to face.<br /><br /><br /><strong><em><span style="font-size:130%;color:#ff6600;">"In emissions terms, we are constantly battling against increases of wealth. Every year, we don't even manage to improve our energy efficiency to keep up with wealth increases, let alone to cut emissions.</span></em></strong><br /><br /><br />"There's a very fundamental problem here that no-one really wants to talk about."<br /><br /><br /><strong><span style="font-size:130%;">New deal</span></strong><br /><br /><br /><strong><span style="font-size:130%;color:#ffff00;">The Defra source said it would be almost impossible to negotiate a new climate deal based on consumer nations taking responsibility for the emissions created from manufacturing the goods they import.</span></strong><br /><br /><br />The government's new Climate Change Committee under Adair Turner may advise by the end of the year whether the government should include imported emissions in its CO2 inventory.<br />Aviation emissions are relatively simple to calculate, although there are disagreements about how the sums are done.<br /><br /><br />Shipping emissions are more complicated. And accurately tracking embedded carbon in imported goods may prove impossible as supply chains for many manufactured items are diverse and ever-changing.<br /><br /><br />The SEI says this is not as complicated as some believe. It claims a 5% error potential in their calculations.<br /><br /><br />SEI says:<br /><br /><br />Under the Kyoto protocol accounting, the UK's greenhouse gas (GHG) emissions in 2004 were 657 million tonnes<br /><br /><br />Total GHG emissions including imports and excluding exports in 2004 were 979 million tonnes<br />Our consumer-based GHG emissions are 49% higher than our Kyoto-reported emissions<br /><br /><br />Trends show that:<br /><br /><br />Between 1992 and 2004, Kyoto GHG emissions report a decrease of 13%<br />Between 1992 and 2004, consumer-based GHG emissions increased by 13%.<br /><br /><br />The increase for overall greenhouse gases is higher than the CO2 increase because it counts methane from agriculture at a time when the UK rapidly increased meat imports.ITSSD Charitable Missionhttp://www.blogger.com/profile/00790887154748866904noreply@blogger.com0tag:blogger.com,1999:blog-7037944389322160928.post-64098171026294159532008-06-14T04:34:00.000-07:002008-06-14T06:34:55.386-07:00Princeton University Global Governance Advocate Calls for New Wave of American Regulatory Socialism in the Image of European Protectionism<a href="http://www.nytimes.com/2008/06/13/opinion/13krugman.html?em&ex=1213502400&en=a52b0be721dfaf26&ei=5087">http://www.nytimes.com/2008/06/13/opinion/13krugman.html?em&ex=1213502400&en=a52b0be721dfaf26&ei=5087</a><br /><br /><br /><strong><span style="font-size:130%;">Bad Cow Disease</span></strong><br /><br /><br />By PAUL KRUGMAN<br /><br /><br />NEW YORK TIMES<br /><br /><br />June 13, 2008<br /><br /><br /><em>“Mary had a little lamb / And when she saw it sicken / She shipped it off to Packingtown / And now it’s labeled chicken.”</em><br /><br /><a href="http://library.syr.edu/digital/exhibits/g/GrapesOfWrath/lgimage/TheJungle.jpg"><img style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 200px; CURSOR: hand" alt="" src="http://library.syr.edu/digital/exhibits/g/GrapesOfWrath/lgimage/TheJungle.jpg" border="0" /></a>That little ditty famously summarized the message of “The Jungle,” Upton Sinclair’s 1906 exposé of conditions in America’s meat-packing industry. Sinclair’s muckraking helped Theodore Roosevelt pass the Pure Food and Drug Act and the Meat Inspection Act — and for most of the next century, Americans trusted government inspectors to keep their food safe.<br /><br /><br /><strong><span style="font-size:130%;">[WE MIGHT SUGGEST ANOTHER MORE APPROPRIATE 'LITTLE DITTY' THAT REFLECTS THE ESSENCE OF WHAT MR. KRUGMAN IS CALLING FOR - A RETURN TO EARLY 20TH CENTURY <span style="color:#ff0000;">SOCIALISM</span>: <span style="color:#ffcc00;"><em>“Democracy and socialism have nothing in common but one word, equality. But notice the difference: while democracy seeks equality in liberty, socialism seeks equality in restraint and servitude.”</em> Alexis de Tocqueville</span></span></strong>].<br /><br /><a href="http://www.nla.gov.au/pub/nlanews/2006/jan06/images/AD_USINCLAIR.JPG"><strong><span style="font-size:130%;"><img style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 272px; CURSOR: hand; HEIGHT: 391px" height="297" alt="" src="http://www.nla.gov.au/pub/nlanews/2006/jan06/images/AD_USINCLAIR.JPG" border="0" /></span></strong></a><strong><span style="font-size:130%;">[MIGHT WE REMIND READERS THAT UPTON SINCLAIR WAS A MEMBER OF THE SOCIALIST PARTY AND WAS INFLUENCED BY EUROPEAN MARXIST POLITICAL THINKING. "<span style="color:#ff0000;">The Jungle is a classic work of socialist realism</span>. Critic Christopher Hitchens has described it as ‘the most fully realized instance of the genre, more telling and more moving than even the works of Dickens and Zola’. Sinclair’s objective was to expose the ways in which the capitalist class, in pursuit of maximum profit, exploits and discards the working people. Jack London called the book <em><span style="color:#ffff00;">‘the Uncle Tom’s Cabin of wage-slavery’</span></em>...The Jungle was a bestseller in the United States and Britain, and its translation into 17 languages made Sinclair an international literary figure. <span style="color:#3333ff;">The Jungle inspired scores of other successful social protest writers</span>, including Iceland’s Halldor Kiljan Laxness (1902–98)...Upton Sinclair was born in Baltimore, Maryland, United States, on 20 September 1878. His father, an alcoholic, moved the family to New York in 1888. His parents were extremely poor but his grandparents, with whom he spent extended periods, were wealthy. He claimed that experiencing these extremes <span style="color:#ff0000;">pointed him in the socialist direction</span>. <span style="color:#3333ff;">His outlook was influenced by the books of English Fabian Robert Blatchford, Russian anarchist Peter Kropotkin, American radicals Jack London and Frank Norris, and the investigative journalism of proud ‘muckrakers’ Ida M. Tarbell, Lincoln Steffens and Ray Stannard Baker</span>...In 1915, Sinclair moved to California with his wife, Mary Craig, and in 1934 he won the Democratic Party’s pre-selection to contest the state’s election [FOR GOVERNOR]. <span style="color:#ff0000;">For most of his life Sinclair defended communists, but his socialism was in the social-democratic mould</span>. He parted company with Marxists in his belief that socialism could be achieved through electoral processes in America, without the need for the revolutionary overthrow of capitalism." See: <em>Aiming for the Heart - Barry York describes how Upton Sinclair’s novel, The Jungle, shocked the American public and forced changes in legislation</em>, National Library of Australia News (Jan. 2006), at: </span></strong><br /><strong><span style="font-size:130%;"><a href="http://www.nla.gov.au/pub/nlanews/2006/jan06/article3.html">http://www.nla.gov.au/pub/nlanews/2006/jan06/article3.html</a> . READERS SHOULD NOTE THAT THE EUROPEAN UNION NOW REFERS TO ITSELF AS BEING IN THE 'SOCIAL-DEMOCRATIC MOULD'.] </span></strong><br /><br /><br />Lately, however, there always seems to be at least one food-safety crisis in the headlines — tainted spinach, poisonous peanut butter and, currently, the attack of the killer tomatoes.<br /><br /><a href="http://www.britanniaradio.co.uk/images/Scares.jpg"><img style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 200px; CURSOR: hand" alt="" src="http://www.britanniaradio.co.uk/images/Scares.jpg" border="0" /></a><br /><strong><span style="font-size:130%;"><a href="http://www.richiesrecordingstudio.com/Mad+Cow.jpg"><img style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 301px; CURSOR: hand; HEIGHT: 471px" height="275" alt="" src="http://www.richiesrecordingstudio.com/Mad+Cow.jpg" border="0" /></a>[IT IS ALWAYS HELPFUL THAT PUBLICITY-SEEKING CONSUMER & ENVIRONMENTAL GROUPS PROVIDE MEDIA WITH THE SENSATIONAL HEADLINES THAT WORRY THE AMERICAN PUBLIC ABOUT PRACTICALLY EVERYTHING IN THEIR DAILY LIVES. MR. KRUGMAN, WHY NOT ADMIT THAT THIS IS WHAT OCCURS? PLEASE ALSO BE HONEST ABOUT HOW SENSATIONALIST FEAR CAMPAIGNS SERVE THE INTERESTS OF SUCH GROUPS - i.e. IT PERMITS THEM TO 'POSTURE' TO ATTRACT FUNDING. FUNDING FLOWS IF THEY ARE SEEN AS 'SERVING THE PUBLIC INTEREST' BY PROVIDING IT WITH INFORMATION. ALTHOUGH CONSUMERS OFTEN HAVE LEGITIMATE CONCERNS ABOUT WHERE THEIR FOOD COMES FROM & HOW ITS SAFETY IS ASSURED, HOWEVER, WE QUESTION WHETHER THESE GROUPS PROVIDE MORE INFORMATION THAN <em>DIS</em>INFORMATION.]</span></strong><br /><br /><br />The declining credibility of U.S. food regulation has even led to a foreign-policy crisis: there have been mass demonstrations in South Korea protesting the pro-American prime minister’s decision to allow imports of U.S. beef, banned after mad cow disease was detected in 2003.<br /><br /><br /><strong><span style="font-size:130%;">[MR. KRUGMAN CONVENIENTLY LEAVES OUT SOME IMPORTANT FACTS HERE, NAMELY, THAT THE KOREAN BEEF INDUSTRY AND NGO COMMUNITY DO NOT HAVE 'CLEAN HANDS'. KOREA'S BEEF INDUSTRY WAS PREVIOUSLY FOUND BY THE WTO TRIBUNALS TO VIOLATE INTERNATIONAL TRADE LAW THROUGH IMPOSITION OF 'FOOD SAFETY' REGULATIONS DEEMED TO ACTUALLY CONSTITUTE 'DISGUISED REGULATORY TRADE BARRIERS'. IN ADDITION, KOREAN NGOs HAVE BEEN STEADILY INFLUENCED BY THE EUROPEAN SOCIALIST NGOs TO BLOCK ALL KINDS OF FOODS, EVEN WHEN SCIENTIFIC RISK ASSESSMENTS HAVE PROVEN THE FOOD is 'SAFE'. HORMONE-INJECTED BEEF, IS ONE EXAMPLE THAT TIES BACK TO THE EUROPEAN BAN ON U.S. BEEF, IN PLACE SINCE THE MID '90's, NOTWITHSTANDING THE WTO'S RULINGS AGAINST THE EU CITING THEIR BAN AS ILLEGAL 'TRADE PROTECTIONISM'. IN ADDITION, KOREAN NGOs, WITH THE HELP OF EUROPEAN SOCIALIST-GREEN GROUPS, HAVE WORKED TO BLOCK THE INTRODUCTION OF GENETICALLY MODIFIED FOODS, FEEDS & SEEDS, NOTWITHSTANDING THE SCIENTIFIC RISK ASSESSMENTS IN BOTH THE U.S. & THE EU SHOWING THE PRODUCTS TO BE 'SAFE', AND THE WTO TRIBUNAL RULING FINDING THAT THE EU MORATORIA ON 'GMOs' WAS AN ILLEGAL DISGUISED PROTECTIONIST BARRIER TO TRADE. See: Lawrence A. Kogan, <em>Discerning the Forest From the Trees: How Governments Use Ostensibly Private and Voluntary Standards to Avoid WTO Culpability</em>, Global Trade and Customs Journal (Sept. 2007), at: </span></strong><a href="http://www.itssd.org/GTCJ_03-offprints%20KOGAN%20-%20Discerning%20the%20Forest%20from%20the%20Trees.pdf"><strong><span style="font-size:130%;">http://www.itssd.org/GTCJ_03-offprints%20KOGAN%20-%20Discerning%20the%20Forest%20from%20the%20Trees.pdf</span></strong></a><strong><span style="font-size:130%;"> ; Lawrence A. Kogan, <em>World Trade Organization Biotech Decision Clarifies Central Role of Science in Evaluating Health and Environmental Risks for Regulation Purposes</em>, Global Trade and Customs Journal (March 2007) at: </span></strong><a href="http://www.itssd.org/Publications/GTCJ_04-offprints_Kogan[2].pdf"><strong><span style="font-size:130%;">http://www.itssd.org/Publications/GTCJ_04-offprints_Kogan[2].pdf</span></strong></a><strong><span style="font-size:130%;"> .]</span></strong><br /><br /><br />How did America find itself back in The Jungle? It started with ideology. Hard-core American conservatives have long idealized the Gilded Age, regarding everything that followed — not just the New Deal, but even the Progressive Era — as a great diversion from the true path of capitalism.<br /><br /><br />Thus, when Grover Norquist, the anti-tax advocate, was asked about his ultimate goal, he replied that he wanted a restoration of the way America was “up until Teddy Roosevelt, when the socialists took over. The income tax, the death tax, regulation, all that.”<br /><br /><br />The late Milton Friedman agreed, calling for the abolition of the Food and Drug Administration. It was unnecessary, he argued: private companies would avoid taking risks with public health to safeguard their reputations and to avoid damaging class-action lawsuits. (Friedman, unlike almost every other conservative I can think of, viewed lawyers as the guardians of free-market capitalism.)<br /><br /><br /><strong><span style="font-size:130%;">[MR. FRIEDMAN WAS CORRECT IN HIS ASSESSMENT OF THE ROLE THAT TRIAL LAWYERS CAN CONSTRUCTIVELY PLAY IN A SYSTEM SHAPED BY FREE MARKET CAPITALISM. WE DON'T AGREE, HOWEVER, THAT GOVERNMENTAL REGULATORY BODIES, SUCH AS THE FDA, SHOULD BE DISMEMBERED AND/OR ABOLISHED. BUT, REGULATORY BODIES SHOULD BE CONSTRAINED BY PRAGMATIC OBJECTIVE BENCHMARKS OF GOVERNMENTAL ACCOUNTABILITY & DUE PROCESS, INCLUDING ECONOMIC CONSIDERATIONS OF THEIR PROPOSED PROMULGATIONS. THE 'SOCIALIST' APPROACH ADVOCATED BY MR. KRUGMAN WOULD PROVIDE GOVERNMENTAL REGULATORY AGENCIES UNFETTERED DISCRETION TO EXERCISE THEIR 'GATEKEEPER' AUTHORITY ON BEHALF OF THE 'PUBLIC INTEREST' THEY ARE 'CHARGED TO PROTECT'. BUT, WHO WILL WATCH THE GATEKEEPERS & HOLD THEM ACCOUNTABLE??]</span></strong><br /><br /><br />Such hard-core opponents of regulation were once part of the political fringe, but with the rise of modern movement conservatism they moved into the corridors of power. They never had enough votes to abolish the F.D.A. or eliminate meat inspections, but they could and did set about making the agencies charged with ensuring food safety ineffective.<br /><br /><br /><strong><span style="font-size:130%;">[THIS DISTORTION-PRONE AD HOMINEM RHETORIC DOES NO ONE ANY GOOD. IT EXAGGERATES THINGS FOR THE PURPOSE OF PROMOTING 'PET' POLITICAL/POLICY GOALS & PERSUADING THOSE UNFAMILIAR WITH THE MECHANISMS OF THE 'WASHINGTON ESTABLISHMENT' THAT THOSE GOALS AND POLICIES ARE 'GOOD'. THIS SOUNDS SO MUCH LIKE PLATO PHILOSOPHER KING-'TALK'.]</span></strong><br /><br /><br />They did this in part by simply denying these agencies enough resources to do the job. For example, the work of the F.D.A. has become vastly more complex over time thanks to the combination of scientific advances and globalization. Yet the agency has a substantially smaller work force now than it did in 1994, the year Republicans took over Congress.<br /><br /><br /><strong><span style="font-size:130%;">[MR. KRUGMAN, ONCE AGAIN, YOU DISTORT THE TRUTH. IS 'BIGGER' ALWAYS 'BETTER', CONSIDERING ALL OF THE BUREAUCRATIC WASTE, MISAPPROPRIATION, INEFFICIENCY & CORRUPTION THAT COMES ALONG WITH BIGGER GOVERNMENT??]</span></strong><br /><br /><br />Perhaps even more important, however, was the systematic appointment of foxes to guard henhouses. Thus, when mad cow disease was detected in the U.S. in 2003, the Department of Agriculture was headed by Ann M. Veneman, a former food-industry lobbyist. And the department’s response to the crisis — which amounted to consistently downplaying the threat and rejecting calls for more extensive testing — seemed driven by the industry’s agenda.<br /><br /><br /><strong><span style="font-size:130%;">[MR. KRUGMAN, ONCE AGAIN, DISTORTS THE TRUTH BY LEAVING OUT PERTINENT FACTS. CALLS FOR MORE EXTENSIVE CASE-BY-CASE TESTING & ANALYSIS WILL DETERMINE WHETHER PARTICULAR FOODS PRESENT PROBABLE HEALTH 'RISKS' TO CONSUMERS. GOVERNMENT MUST UTILIZE TOOLS THAT PROVIDE IT WITH METRICS & USEFUL INFORMATION THAT CAN THEN TRANSLATE INTO PRACTICES & PROCEDURES FOR INDUSTRY THAT WILL ENSURE GREATER FOOD SAFETY WITHOUT CAUSING COMPANIES (THE FOOD PROVIDERS) TO GO BANKRUPT, TO PASS THE HIGHER COSTS OF REGULATION TO CONSUMERS THROUGH PRICE INCREASES, OR TO OTHERWISE DEMAND HIDDEN GOVERNMENT TAXPAYER -FUNDED SUBSIDIES. MR. KRUGMAN'S PREFERRED REGULATORY 'FIX' WOULD BE TO PERMIT A CHANGE IN REGULATION THAT DISPENSES WITH THE EXTRA TESTING AND REPLACES IT WITH A A GENERAL RULE BASED ON A REGULATORY PRESUMPTION OF POSSIBLE FOOD 'HAZARDS', EVEN WHERE NONE ARE SHOWN TO EXIST. THAT FUNDAMENTALLY TRA</span></strong><strong><span style="font-size:130%;">NSLATES INTO MORE UNNECESSARY COSTS, DELAYS & A MUCH BIGGER GOVERNMENT, AS IN THE EUROPEAN UNION. FISCALLY CONSERVATIVE POLITICIANS ON BOTH SIDES OF THE AISLE ARE CORRECT ABOUT ONE THING THAT ESCAPES MR. KRUGMAN - BIGGER GOVERNMENT IS USUALLY <em>NOT</em> THE ANSWER.]</span></strong><br /><br /><br />One amazing decision came in 2004, when a Kansas producer asked for permission to test its own cows, so that it could resume exports to Japan. You might have expected the Bush administration to applaud this example of self-regulation. But permission was denied, because other beef producers feared consumer demands that they follow suit.<br /><br /><br /><strong><span style="font-size:130%;">[MR. KRUGMAN, YET AGAIN, LEAVES OUT IMPORTANT FACTS. THE U.S. GOVERNMENT WAS OPPOSED TO PERMITTING U.S. INDUSTRY TO 'SELF-REGULATE' (i.e., to BYPASS U.S. DEPARTMENT OF AGRICULTURE HEALTH & SAFETY REGULATIONS BY HAVING EACH HEAD OF CATTLE INSPECTED & LABELED AS 'SAFE' & MAD COW-FREE), BECAUSE IN MANY CASES THE CATTLEMEN DID NOT HAVE ADEQUATE SAFETY LABORATORIES TO UNDERTAKE THE NECESSARY SAFETY ASSESSMENT AND TO ENSURE THE ACCURACY OF THEIR DESIRED MARKETING CLAIM THAT THEIR BEEF PRESENTED ZERO RISK, AND THUS WAS 'SAFE'. IN ADDITION, IT IS THE REGULATORY PHILOSOPHY OF THE UNITED STATES NOT TO ADOPT THE EUROPEAN PRECAUTIONARY PRINCIPLE, WHICH WOULD REQUIRE THAT EACH HEAD OF CATTLE BE TESTED WITHOUT REFERENCE TO TELLTALE SIGNS OF DISEASE. THE IMPOSITION OF THIS EXTRA COST & BURDEN UPON EUROPEAN BEEF EXPORTERS HAS MADE THEM LARGELY NONCOMPETITIVE WITH EXPORTERS FROM OTHER COUNTRIES, WITHOUT MAKING THE BEEF ANY 'SAFER'. MR. KRUGMAN WOULD LIKE TO HAVE THE EXPENSIVE & INEFFICIENT FOOD SAFETY SYSTEM IMPORTED INTO THE U.S.]</span></strong><br /><br /><br />When push comes to shove, it seems, the imperatives of crony capitalism trump professed faith in free markets. Eventually, the department did expand its testing, and at this point most countries that initially banned U.S. beef have allowed it back into their markets.<br /><br /><br /><strong><span style="font-size:130%;">[THE U.S. DEPARTMENT OF AGRICULTURE, LIKE OTHER U.S. AGENCIES, CONTINUALLY UPDATES ITS SCIENTIFIC EVALUATIONS, PROCEDURES & PRACTICES, TO REFLECT MORE CURRENT KNOWLEDGE, JUST AS THEY SHOULD. THIS RESULTED IN MORE EXTENSIVE & EFFICIENT TESTING.]</span></strong><br /><br /><br />But the South Koreans still don’t trust us. <strong><span style="font-size:180%;color:#ffff00;">And while some of that distrust may be irrational</span></strong> — the beef issue has become entangled with <strong><em><span style="font-size:180%;color:#3333ff;">questions of Korean national pride, which has been insulted by clumsy American diplomacy</span></em></strong> — it’s hard to blame them.<br /><br /><br /><strong><span style="font-size:130%;">[MR. KRUGMAN, THE GLOBALIST, TAKES IT UPON HIMSELF TO APOLOGIZE TO THE KOREAN GOVERNMENT AND THE KOREAN PEOPLE FOR THE AMERICAN OFFENSE OF TRYING TO HOLD THE KOREAN GOVERNMENT TO THE WTO RULES WHICH THEY HAVE AGREED TO FOLLOW, AND OF NOT HONORING THEIR 'CULTURAL PREFERENCE' FOR 'PURE' KOREAN BEEF & DISGUISED PROTECTIONISM . APOLOGY UNNECESSARY & INAPPROPRIATE. See: Lawrence A. Kogan, <em>Looking Behind the Curtain: The Growth of Foreign Trade Barriers that Ignore Sound Science</em>, National Foreign Trade Council (May 2003), at pp. 8, 12-13, at: <a href="http://www.wto.org/english/forums_e/ngo_e/posp47_nftc_looking_behind_e.pdf">http://www.wto.org/english/forums_e/ngo_e/posp47_nftc_looking_behind_e.pdf</a> .] </span></strong><br /><br /><strong><span style="font-size:130%;">[MR. KRUGMAN PREVIOUSLY LAUDED THE SOCIALIST REGULATORY SYSTEM OF THE EUROPEAN UNION THAT SEEMS TO PROVIDE A MODEL FOR KOREA AND OTHER COUNTRIES FROM TIME TO TIME, IN HIS PREVIOUS NEW YORK TIMES ARTICLE ENTITLED, <em><span style="color:#3333ff;">The Comeback Continent</span></em>. See: <em>Why Has an Avowed Multilateralist Princeton Academic Been Recruited as a 'Spin-Doctor' to Improve Europe's Image Among Americans???</em>, ITSSD Journal on Economic Freedom (Jan. 12, 2008) at: <a href="http://itssdeconomicfreedom.blogspot.com/2008/01/why-has-avowed-multilateralist.html">http://itssdeconomicfreedom.blogspot.com/2008/01/why-has-avowed-multilateralist.html</a> .]</span></strong><br /><br /><br />The ironic thing is that the Agriculture Department’s deference to the beef industry actually ended up backfiring: because potential foreign buyers didn’t trust our safety measures, beef producers spent years excluded from their most important overseas markets.But then, the same thing can be said of other cases in which the administration stood in the way of effective regulation. Most notably, the administration’s refusal to countenance any restraints on predatory lending helped prepare the ground for the subprime crisis, which has cost the financial industry far more than it ever made on overpriced loans.<br /><br /><br /><span style="font-size:130%;"><strong>The moral of this story is that failure to regulate effectively isn’t just bad for consumers, it’s bad for business. And in the case of food, what we need to do now — <em><span style="color:#33ff33;">for the sake of both our health and our export markets</span></em> — is to <span style="font-size:180%;color:#ff0000;">go back to </span>the way it was after Teddy Roosevelt, <span style="font-size:180%;color:#ff0000;">when the Socialists took over</span>. It’s time to get back to the business of ensuring that American food is safe.</strong></span><br /><br /><br /><strong><span style="font-size:180%;">[MIGHT WE REMIND MR. KRUGMAN AND HIS FELLOW 'SOCIALISTS' ABOUT A FAMOUS QUOTE FROM NONE OTHER THAN SIR WINSTON CHURCHILL? <em><span style="color:#ff0000;">“Socialism is a philosophy of failure, the creed of ignorance, and the gospel of envy, its inherent virtue is the equal sharing of misery.”</span></em>]</span></strong>ITSSD Charitable Missionhttp://www.blogger.com/profile/00790887154748866904noreply@blogger.com0tag:blogger.com,1999:blog-7037944389322160928.post-92158474350416588952008-06-12T20:13:00.000-07:002009-05-29T06:41:57.558-07:00Has Barack Transformed Himself into EURObama Given His Interest in Adopting as US Law the Well-Known EU REACH Green Regulatory Trade Barrier??<a href="http://www.washingtonpost.com/wp-dyn/content/article/2008/06/11/AR2008061103569_pf.html">http://www.washingtonpost.com/wp-dyn/content/article/2008/06/11/AR2008061103569_pf.html</a><br /><div><div><div><div><div><br /><strong><span style="font-size:130%;">Chemical Law Has Global Impact: E.U.'s New Rules Forcing Changes By U.S. Firms <a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgPDa_LAeJErkCU5JMQ92RVI4xKaEFZ5xUfQqarW1QPW1Cws6gNApKanI9e99fwXktoFKjTrn_QTic0v33WwYfcbqdYXrJw-zy94iXSgYcU5agg9auzQbh1Rg1dJnfwDj8daUhSCvUZsALc/s1600-h/eurobama+logo.jpg"><img id="BLOGGER_PHOTO_ID_5213947213587498914" style="margin: 0px 10px 10px 0px; float: left; width: 222px; height: 215px;" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgPDa_LAeJErkCU5JMQ92RVI4xKaEFZ5xUfQqarW1QPW1Cws6gNApKanI9e99fwXktoFKjTrn_QTic0v33WwYfcbqdYXrJw-zy94iXSgYcU5agg9auzQbh1Rg1dJnfwDj8daUhSCvUZsALc/s200/eurobama+logo.jpg" border="0" width="222" height="195" /></a><br /></span></strong></div><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjbOdnYQ8SG5rGkDDpfo7mmzkpUJ9QuwCek80ated4q8wWC2ngr7DwU3seOnkCmlkInECuaY3eE3OudP2nbr0Ss_Mwe9Gw4UsvqqrD9n4Rr-Ytarz5LEVjruJz9zTlKVfbnVX8p6HtEHVmh/s1600-h/EU+REACH+compliance.jpg"><img id="BLOGGER_PHOTO_ID_5257503751380336658" style="margin: 0px 10px 10px 0px; float: left;" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjbOdnYQ8SG5rGkDDpfo7mmzkpUJ9QuwCek80ated4q8wWC2ngr7DwU3seOnkCmlkInECuaY3eE3OudP2nbr0Ss_Mwe9Gw4UsvqqrD9n4Rr-Ytarz5LEVjruJz9zTlKVfbnVX8p6HtEHVmh/s400/EU+REACH+compliance.jpg" border="0" /></a><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjGJXGsf0T5dDTXhU2sCUG_oQSBaSqDqhTNtG7QcnLoyAEDGmwCJyAYHjn_a3b8Da8psZvJqJtIF5Qal9USUxaM1LI4ERR5vu7e1A5fa-mUVJb9rYGxvRUBTkywznNdBe_hTbebXiPmPrMo/s1600-h/eu+reach.jpg"><img id="BLOGGER_PHOTO_ID_5257503178621663026" style="margin: 0px 10px 10px 0px; float: left;" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjGJXGsf0T5dDTXhU2sCUG_oQSBaSqDqhTNtG7QcnLoyAEDGmwCJyAYHjn_a3b8Da8psZvJqJtIF5Qal9USUxaM1LI4ERR5vu7e1A5fa-mUVJb9rYGxvRUBTkywznNdBe_hTbebXiPmPrMo/s400/eu+reach.jpg" border="0" /></a><br /><br /><br /><br /><br /><br /><div>By Lyndsey Layton<br /><br /><br />Washington Post<br /><br /><br />June 12, 2008<br /><br /><br />Europe this month rolled out new restrictions on makers of chemicals linked to cancer and other health problems, changes that are forcing U.S. industries to find new ways to produce a wide range of everyday products.<br /><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgIbpPTyFiHI-BzczRKvAooosLGrphJoD8F6dUPeflE1DeKi87LS12yWAgGAIwbuSDC35AeSLii2W8oo0QdRKGiIxTh3UJe8HaRleqrG5mWZ9oeF4hPeheTTwTTtOox4rgk3dMaDb0eiOLw/s1600-h/REACH%2520Web_35.jpg"><img id="BLOGGER_PHOTO_ID_5257503918848023106" style="margin: 0px 10px 10px 0px; float: left;" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgIbpPTyFiHI-BzczRKvAooosLGrphJoD8F6dUPeflE1DeKi87LS12yWAgGAIwbuSDC35AeSLii2W8oo0QdRKGiIxTh3UJe8HaRleqrG5mWZ9oeF4hPeheTTwTTtOox4rgk3dMaDb0eiOLw/s400/REACH%2520Web_35.jpg" border="0" /></a><a href="http://www.fda.gov/oia/graphics/euflag.jpg"><img style="margin: 0px 10px 10px 0px; float: left; width: 200px;" alt="" src="http://www.fda.gov/oia/graphics/euflag.jpg" border="0" /></a></div><div> </div><div><br />The new laws in the <a href="http://www.washingtonpost.com/ac2/related/topic/European+Union?tid=informline" target="">European Union</a> require companies to demonstrate that a chemical is safe before it enters commerce -- the opposite of policies in the United States, where regulators must prove that a chemical is harmful before it can be restricted or removed from the market.<br /><br /><br /><strong><span style="font-size:130%;">[THIS IS TANTAMOUNT TO REQUIRING INDUSTRY TO PROVE A 'NEGATIVE' - i.e., THAT SOMETHING IS TOTALLY SAFE WITH ZERO RISK - SOMETHING THAT IS NEITHER HUMANLY POSSIBLE NOR REALISTIC.]</span></strong><br /><br /><br />Manufacturers say that complying with the European laws will add billions to their costs, possibly driving up prices of some products.<br /><br /><br /><strong><span style="font-size:130%;">[THIS IS FACT, NOT FICTION. THE PROPONENTS ALMOST ALWAYS MINIMIZE THE COSTS WHILE EXTOLLING THE BENEFITS.]</span></strong><br /><strong></strong><br /><br />The changes come at a time when <strong><em><span style="font-size:130%;">consumers are increasingly worried about the long-term consequences of chemical exposure and are agitating for more aggressive regulation</span></em></strong>. In the United States, these pressures have spurred efforts in Congress and some state legislatures to pass laws that would circumvent the laborious federal regulatory process.<br /><br /><br /><strong><span style="font-size:130%;">[THE CONGRESSIONAL PRESSURE REFERRED TO ABOVE HAS LONG PROCEEDED FROM POLICALLY MOTIVATED DEMOCRATIC CALIFORNIA CONGRESSMAN HENRY WAXMAN. See: Lawrence A. Kogan, <em>Claims of Improper US Lobbying Quite a REACH</em>, EU Reporter (May 2004 Plenary Issue at p. 18) at: </span></strong><a href="http://www.itssd.org/Publications/1-20_EUR_04May04.pdf"><strong><span style="font-size:130%;">http://www.itssd.o</span></strong></a><a href="http://www.itssd.org/Publications/1-20_EUR_04May04.pdf"><strong><span style="font-size:130%;">rg/Publications/1-20_EUR_04May04.pdf</span></strong></a><strong><span style="font-size:130%;"> ].</span></strong><br /><br /><br /><strong><span style="font-size:130%;">[THE 'CONSUMERS' REFERRED TO HERE ARE NONE OTHER THAN THE PERSONS WHO OPERATE THE EXTREMIST ENVIRONMENTAL, CONSUMER & HEALTH GROUPS THAT WANT US ALL TO LIVE IN A CLINICALLY PURE WORLD, FREE FROM RISK. THEY WANT US, IN OTHER WORDS, TO LIVE IN A BUBBLE. DON'T PEOPLE REMEMBER THE ABSURDITY OF SEINFELD'S 'BUBBLE-BOY'???]</span></strong><br /><br /><div style="text-align: justify;"><strong><span style="font-size:180%;"><a href="http://images.contactmusic.com/images/reviews2/bubbleboy.jpg"><strong><span style="font-size:130%;"><img style="margin: 0px 10px 10px 0px; float: left; width: 392px; height: 259px;" alt="" src="http://images.contactmusic.com/images/reviews2/bubbleboy.jpg" border="0" height="171" /></span></strong></a></span></strong> <strong><span style="font-size:130%;">["'The Bubble Boy' is the 47th episode of the </span></strong><a title="United States" href="http://64.233.169.104/wiki/United_States"><strong><span style="font-size:130%;">American</span></strong></a><strong><span style="font-size:130%;"> sitcom </span></strong><a title="Seinfeld" href="http://64.233.169.104/wiki/Seinfeld"><strong><span style="font-size:130%;">Seinfeld</span></strong></a><strong><span style="font-size:130%;">, as well as the nickname of Donald Sanger, one of the charact</span></strong><a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhERcombn6hd9TQX_vx7bkCTGWg1jKjTIGDmyL6yGkQAQ0h06EeqrQb-1kKAd77_RN1WFoh1tWJs1x2_-oiryCu0c18UKY_cGoGEinMAUNvu3PmkLOE0f-GqUQUk0_7l2HndqbqypXWwLqm/s1600-h/bubbleboy.jpg"><img style="margin: 0pt 10px 10px 0pt; float: left; cursor: pointer; width: 400px; height: 267px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhERcombn6hd9TQX_vx7bkCTGWg1jKjTIGDmyL6yGkQAQ0h06EeqrQb-1kKAd77_RN1WFoh1tWJs1x2_-oiryCu0c18UKY_cGoGEinMAUNvu3PmkLOE0f-GqUQUk0_7l2HndqbqypXWwLqm/s400/bubbleboy.jpg" alt="" id="BLOGGER_PHOTO_ID_5341239639516508962" border="0" /></a><strong><span style="font-size:130%;">ers in the episode...</span></strong><a title="Jerry Seinfeld" href="http://64.233.169.104/wiki/Jerry_Seinfeld"><strong><span style="font-size:130%;">Jerry</span></strong></a><strong><span style="font-size:130%;">, </span></strong><a title="George Costanza" href="http://64.233.169.104/wiki/George_Costanza"><strong><span style="font-size:130%;">George</span></strong></a><strong><span style="font-size:130%;">, George's girlfriend </span></strong><a class="mw-redirect" title="Susan Ross" href="http://64.233.169.104/wiki/Susan_Ross"><strong><span style="font-size:130%;">Susan</span></strong></a><strong><span style="font-size:130%;">, and </span></strong><a title="Elaine Benes" href="http://64.233.169.104/wiki/Elaine_Benes"><strong><span style="font-size:130%;">Elaine</span></strong></a><strong><span style="font-size:130%;"> plan to travel to Susan's family's lakeside cabin. Before then, Elaine meets with a kindly father who describes the sad life of his young son Donald </span><span style="font-size:180%;">who lives in a plastic 'bubble' (a germ-free </span></strong><a title="Quarantine" href="http://64.233.169.104/wiki/Quarantine"><strong><span style="font-size:180%;">quarantine</span></strong></a><strong><span style="font-size:130%;"><span style="font-size:180%;">).</span> As D<a href="http://www.j-archive.com/media/2005-03-08_DJ_24.jpg"><strong></strong></a>onald is a fan of Jerry's, Jerry is forced by Elaine to visit Donald on the way to the cabin to cheer him up. However, Jerry gets lost and George and Susan arrive before him. While waiting for Jerry to arrive, they play </span></strong><a title="Trivial Pursuit" href="http://64.233.169.104/wiki/Trivial_Pursuit"><strong><span style="font-size:130%;">Trivial Pursuit</span></strong></a><strong><span style="font-size:130%;"> with the "bubble boy," who is in fact actually an adult, and not a mere boy...The Trivial </span></strong><strong><span style="font-size:130%;">Pursuit game ends prematurely when George disputes the answer to the question "Who invaded </span></strong><a title="Spain" href="http://64.233.169.104/wiki/Spain"><strong><span style="font-size:130%;">Spain</span></strong></a><strong><span style="font-size:130%;"> in the 8th century?" The boy answers with "the </span></strong><a title="Moors" href="http://64.233.169.104/wiki/Moors"><strong><span style="font-size:130%;">Moors</span></strong></a><strong><span style="font-size:130%;">", but the question card says "the Moops" due to a </span></strong><a title="Typographical error" href="http://64.233.169.104/wiki/Typographical_error"><strong><span style="font-size:130%;">misprint</span></strong></a><strong><span style="font-size:130%;">, and George refuses to give Donald credit. Donald attacks George and the "bubble" is punctured and depressurized in the struggle. Although everyone blames George for popping the bubble, technically, Susan causes it as she tries to defend George from Donald's attack." See: <em>The Bubble Boy (Seinfeld episode), </em>Wikipedia, at: <a href="http://en.wikipedia.org/wiki/The_Bubble_Boy_%28Seinfeld_episode">http://en.wikipedia.org/wiki/The_Bubble_Boy_(Seinfeld_episode</a>) .]</span></strong><br /><strong></strong></div><br /><br />Adamantly opposed by the U.S. chemical industry and the Bush administration, the E.U. laws will be phased in over the next decade. It is difficult to know exactly how the changes will affect products sold in the United States. But American manufacturers are already searching for safer alternatives to chemicals used to make thousands of consumer goods, from bike helmets to shower curtains.<br /><strong><span style="font-size:130%;"></span></strong><br /><a href="http://upload.wikimedia.org/wikipedia/commons/7/75/Duck_of_Vaucanson.jpg"><img style="margin: 0px 10px 10px 0px; float: left; width: 408px; height: 337px;" alt="" src="http://upload.wikimedia.org/wikipedia/commons/7/75/Duck_of_Vaucanson.jpg" border="0" height="180" /></a> <strong><span style="font-size:130%;"><br /></span></strong><div style="text-align: justify;"><strong><span style="font-size:130%;">[ACTUALLY, THE EU REACH REGULATORY REGIME HAS BEEN OPPOSED BY INDUSTRIES THROUGHOUT THE WORLD ON THE GROUNDS THAT IT IS A FALSE PRETENSE FOR HEALTH & ENVIRONMENTAL SAFETY-BASED PROTECTIONISM, MODELED AFTER THE EU'S FAMOUS GENETICALLY MODIFIED </span></strong><strong><span style="font-size:130%;"><a href="http://www.leasingnews.org/CartoonBank3/Duck.gif"><img style="margin: 0px 10px 10px 0px; float: left; width: 403px; height: 382px;" alt="" src="http://www.leasingnews.org/CartoonBank3/Duck.gif" border="0" height="199" /></a></span></strong><strong><span style="font-size:130%;">(GM) 'FRANKENFOOD' REGULATORY SCARE THAT PERSISTS TO THIS DAY. </span></strong><strong><span style="font-size:130%;"><br /></span></strong><strong></strong><br /><strong><span style="font-size:130%;"><br /></span></strong><strong><span style="font-size:130%;"><br /><br />See: Lawrence A. Kogan, <em>Enlightened Environmentalism or Disguised Protectionism: Assessing the Impact of EU Precaution-Based Standards on Developing Countries</em>, National Foreign Trade Council (April 2004) at pp. 65-86, at: </span></strong><a href="http://www.wto.org/english/forums_e/ngo_e/posp47_nftc_enlightened_e.pdf"><strong><span style="font-size:130%;">http://www.wto.org/english/forums_engo_eposp47_nftc_enlightened_e.pdf</span></strong></a><strong><span style="font-size:130%;"> ; Lawrence A. Kogan, <em>Trade protectionism : Ducking the Truth About Europe's GMO Policy</em>, International Herald Tribune (Nov. 27, 2007), at: </span></strong><a href="http://www.iht.com/articles/2004/11/27/edkogan_ed3_.php?page=1"><strong><span style="font-size:130%;">http://www.iht.com/articles/2004/11/27/edkogan_ed3_.php?page=1</span></strong></a><strong><span style="font-size:130%;"> ; Lawrence A. Kogan, <em>Ducking The Truth About EU GM Policy -Looks Like a Duck, But is it a Decoy?</em>, EU Reporter (Oct. 22, 2004) at p. 6, at: </span></strong><a href="http://www.itssd.org/Publications/Ducking%20the%20Truth%20About%20EU%20GM%20Policy.pdf"><strong><span style="font-size:130%;">http://www.itssd.org/Publications/Ducking%20the%20Truth%20About%20EU%20GM%20Policy.pdf</span></strong></a><strong><span style="font-size:130%;">.]</span></strong><br /></div><br /><br />The European Union's tough stance on chemical regulation is the latest area in which the Europeans are reshaping business practices with demands that American companies either comply or lose access to a market of 27 countries and nearly 500 million people.<br /><br /><br /><strong><span style="font-size:130%;">[THE EU REACH REGULATION ARGUABLY VIOLATES WTO LAW. See: Lawrence A. Kogan, <em>EU REACH Adoption Likely to Trigger WTO Action</em> (Dec. 15, 2006) at: </span></strong><a href="http://www.itssd.org/pdf/PressRelease-EUREACHAdoption.pdf"><strong><span style="font-size:130%;">http://www.itssd.org/pdf/PressRelease-EUREACHAdoption.pdf</span></strong></a><strong><span style="font-size:130%;"> ; Lawrence A. Kogan, <em>REACHING For Your Wallets Or Your Lives</em>, (Dec. 15, 2006) at: </span></strong><a href="http://www.itssd.org/Publications/REACHing-for-Your-Wallets.pdf"><strong><span style="font-size:130%;">http://www.itssd.org/Publications/REACHing-for-Your-Wallets.pdf</span></strong></a><strong><span style="font-size:130%;"> ; Lawrence A. Kogan, <em>WTO ‘Fever’ Necessary to Stem Advance Of Precautionary Principle ‘Virus’, Says ITSSD</em> (March 27, 2007) at: </span></strong><a href="http://www.itssd.org/Press%20Release/WTOFeverNecessarytoStemAdvanceofPrecautionaryPrincipleVirusSaysITSSDII3.pdf"><strong><span style="font-size:130%;">http://www.itssd.org/Press%20Release/WTOFeverNecessarytoStemAdvanceofPrecautionaryPrincipleVirusSaysITSSDII3.pdf</span></strong></a><strong><span style="font-size:130%;"> ].</span></strong><br /><br /><strong><em>From its crackdown on antitrust practices in the computer industry to its rigorous protection of consumer privacy, the European Union has adopted a regulatory philosophy that emphasizes the consumer</em></strong>. Its approach to managing chemical risks, which started with a trickle of individual bans and has swelled into a wave, is part of a European focus on caution when it comes to health and the environment.<br /><br /><br /><strong><span style="font-size:130%;">[THE EU CRACKDOWN ON ANTITRUST PRACTICES IS LARGELY ATTRIBUTABLE TO THE LACK OF DUE PROCESS REQUIREMENTS IN EUROPE. PERSONS, LEGAL OR OTHERWISE, ARE PRESUMED GUILTY UNTIL PROVEN INNOCENT. THERE IS NO COMMON LAW REQUIREMENT FOR LAW ENFORCEMENT AUTHORITIES TO OBTAIN A WARRANT PRIOR TO AN ARREST BASED ON THE NOTION OF 'PROBABLE CAUSE'. <span style="color: rgb(51, 51, 255);">IS THIS THE TYPE OF LEGAL SYSTEM (BASED ON EUROPEAN CONTINENTAL LAW) THAT WE WANT IN AMERICA??? IS THIS THE TYPE OF 'CHANGE' THAT BARACK OBAMA IS SPEAKING OF??</span>]</span></strong><br /><br /><br />"There's a strong sense in Europe and the world at large that America is letting the market have a free ride," said Sheila Jasanoff, professor of science and technology studies at <a href="http://www.washingtonpost.com/ac2/related/topic/Harvard+University?tid=informline" target="">Harvard University</a>'s <a href="http://www.washingtonpost.com/ac2/related/topic/John+F.+Kennedy+School+of+Government?tid=informline" target="">John F. Kennedy School of Government</a>. <strong><em>"The Europeans believe . . . that being a good global citizen in an era of sustainability means you don't just charge ahead and destroy the planet without concern for what you're doing."<br /></em></strong><br /><br /><strong><span style="font-size:130%;">[THIS IS A SELF-SERVING, FALSE & MISREPRESENTATIVE POLITICAL STATEMENT THAT IS WITHOUT SCIENTIFIC FOUNDATION. JUST BECAUSE MS. JASANOFF HARKENS FROM HARVARD DOESN'T GIVE HER THE RIGHT TO CLAIM ACADEMIC CREDIBILITY. EUROPE IS UNDERTAKING A 'WITCH HUNT' TO FIND SOMETHING THAT LOOKS LIKE SCIENTIFIC EVIDENCE TO SUPPORT ITS SPURIOUS CLAIMS THAT CHEMICALS MANUFACTURERS, FORMULATORS AND USERS ARE HARMING PUBLIC HEALTH & ENVIRONMENT.]</span></strong><br /><br /><br />Under the E.U. laws, manufacturers must study and report the risks posed by specific chemicals.<br /><br />Through the Internet, the data will be available for the first time to consumers, regulators and potential litigants around the world. Until now, much of that information either did not exist or was closely held by companies.<br /><br /><br /><strong><span style="font-size:130%;">[THE EXISTENCE OF INFORMATION BY ITSELF MEANS LITTLE. THE EU'S PROBLEM IS THAT IT HAS ACCUMULATED SO MUCH INFORMATION FOR ACCUMULATION SAKE - THAT IS, BECAUSE IT CAN, THAT IT DOESN'T KNOW WHAT IT ALL MEANS, AND THEREFORE, WHAT TO DO WITH IT!!]</span></strong><br /><br /><br /><strong><em>"This is going to compel companies to be more responsible for their products than they have ever been," said Daryl Ditz, senior policy adviser at the Center for International Environmental Law.</em></strong> "They'll have to know more about the chemicals they make, what their products are and where they go."<br /><br /><br /><strong><span style="font-size:130%;">[KNOWING THE HAZARDOUS CHARACTERISTICS OF CHEMICALS ALONE DOES NOT TRANSLATE INTO MAKING SAFER PRODUCTS. KNOWING HOW CHEMICALS ARE TO BE USED, WHO WILL USE THEM, & UNDER WHAT CONDITIONS, WILL PERMIT COMPANIES TO MAKE SAFER PRODUCTS. HOWEVER, IT SHOULD NOT BE THE BURDEN OF COMPANIES TO ANTICIPATE THE UNANTICIPATABLE, AS THESE ACADEMICS AND THE EUROPEAN UNION WOULD LIKE THEM TO DO - UNLESS THE U.S. WISHES TO ADOPT THE SOCIALIST STYLE OF EUROPEAN REGULATION, WHICH DETERMINES WHAT PEOPLE CAN & CANNOT DO.]</span></strong><br /><br /><br />The laws also call for the European Union to create a list of "substances of very high concern" -- those suspected of causing cancer or other health problems. Any manufacturer wishing to produce or sell a chemical on that list must receive authorization.<br /><br /><br />In the United States, laws in place for three decades have made banning or restricting chemicals extremely difficult. The nation's chemical policy, the Toxic Substances Control Act of 1976, grandfathered in about 62,000 chemicals then in commercial use. Chemicals developed after the law's passage did not have to be tested for safety. Instead, companies were asked to report toxicity information to the government, which would decide if additional tests were needed.<br /><br /><br />In more than 30 years, the <a href="http://www.washingtonpost.com/ac2/related/topic/U.S.+Environmental+Protection+Agency?tid=informline" target="">Environmental Protection Agency</a> has required additional studies for about 200 chemicals, a fraction of the 80,000 chemicals that are part of the U.S. market. The government has had little or no information about the health hazards or risks of most of those chemicals.<br /><br /><br />The EPA has banned only five chemicals since 1976. The hurdles are so high for the agency that it has been unable to ban asbestos, which is widely acknowledged as a likely carcinogen and is barred in more than 30 countries. Instead, the EPA relies on industry to voluntarily cease production of suspect chemicals.<br /><br /><br />"If you ask people whether they think the drain cleaner they use in their homes has been tested for safety, they think, 'Of course, the government would have never allowed a product on the market without knowing it's safe,' " said Richard Denison, senior scientist at the <a href="http://www.washingtonpost.com/ac2/related/topic/Environmental+Defense?tid=informline" target="">Environmental Defense Fund</a>. "When you tell them that's not the case, they can't believe it."<br /><br /><br /><strong>The changes in Europe follow eight years of vigorous opposition from the U.S. chemical industry and the Bush administration.</strong> Four U.S. agencies -- the EPA, the <a href="http://www.washingtonpost.com/ac2/related/topic/U.S.+Department+of+Commerce?tid=informline" target="">Commerce Department</a>, the <a href="http://www.washingtonpost.com/ac2/related/topic/U.S.+Department+of+State?tid=informline" target="">State Department</a> and the Office of the Trade Representative -- argued that the system would burden manufacturers and offer little public benefit.<br /><br /><br />In 2002, then-<a href="http://www.washingtonpost.com/ac2/related/topic/Colin+Powell?tid=informline" target="">Secretary of State Colin L. Powell</a> directed the staffs of American Embassies in Europe to oppose the measure. He cited talking points developed in consultation with the American Chemistry Council, a manufacturers trade group.<br /><br /><br />Mike Walls, the chemistry council's managing director of government and regulatory affairs, said that 90 percent of its members are affected by the E.U. laws and that some cannot afford the cost of compliance. "We're talking about over 850 pages of regulation," he said.<br /><br /><br /><strong>The E.U. standards will force many manufacturers to reformulate their products for sale there as well as in the United States. "We're not looking at this as a European program -- we're buying and selling all over the globe," said Linda Fisher, vice president and chief sustainability officer for </strong><a href="http://www.washingtonpost.com/ac2/related/topic/DuPont+Company?tid=informline" target=""><strong>DuPont</strong></a><strong> and a former EPA deputy administrator.</strong><br /><br /><br /><strong>DuPont expects to spend "tens of millions" of dollars to register about 500 chemicals with the European Union, Fisher said</strong>. About 20 to 30 are expected to make the list of "substances of very high concern."<br /><br /><br /><strong><span style="font-size:130%;">[THIS CORPORATE PHILOSOPHY MORE LIKELY REFLECTS THE COMPANY'S RETICENCE TO CHALLENGE EU GOVERNMENTAL AUTHORITY EVEN IF THE COMPANIES ARE 'IN THE RIGHT', GIVEN THAT THE EU COMMISSION & THE UNITED NATIONS FUNDS NON-GOVERNMENTAL GREEN EXTREMIST GROUPS THAT WAGE PUBLIC REPUTATION DISPARAGEMENT CAMPAIGNS AGAINST COMPANIES THAT DON'T GO ALONG WITH COMMISSION &/OR NGO CORPORATE SOCIAL RESPONSIBILITY MANDATES. OTHER 'MULTINATIONAL COMPANIES HAVE EMBRACED THIS PHILOSOPHY TO ESCAPE THE GRASP OF THE NGOs. See: Lawrence A. Kogan, <em>Precautionary Preference: How Europe Employs Regulatory Protectionism to Weaken American Free Enterprise</em>, International Journal of Economic Development, Vol. 7, Nos. 2-3 (2005) at: <a href="http://www.itssd.org/White%20Papers/ijed-7-2-3-kogan.pdf">http://www.itssd.org/White%20Papers/ijed-7-2-3-kogan.pdf</a> . ]</span></strong><br /><br /><br />One such chemical is likely to be perfluorooctanoic acid (PFOA), used to make <a href="http://www.washingtonpost.com/ac2/related/topic/Teflon?tid=informline" target="">Teflon</a> and other substances used in food packaging, carpet, clothing and electrical equipment. A suspected carcinogen, it accumulates in the environment and in human tissue.<br /><br /><br />DuPont reached a $16.5 million settlement with the EPA in 2005 on charges that it illegally withheld information about health risks posed by PFOA and about water pollution near a West Virginia plant. Dupont and other companies have agreed to cease production by 2015.<br /><br /><br /><strong><em><span style="font-size:130%;">Once a chemical is included on the E.U. list</span></em></strong>, manufacturers are likely to feel pressure to abandon production, observers say. "It will be a market signal that says, 'These are best to avoid,' " said <strong><em>Joel Tickner</em></strong>, director of the Lowell Center for Sustainable Production at the <a href="http://www.washingtonpost.com/ac2/related/topic/University+of+Massachusetts+Amherst?tid=informline" target="">University of Massachusetts</a>.<br /><br /><br /><span style="font-size:130%;"><strong>[THIS IS CALLED CHARACTERIZING ENVIRONMENTAL & HEALTH HAZARDS THROUGH BUREAUCRATIC CREATION OF LISTS OF 'BAD' SUBSTANCES WITHOUT FIRST SUBJECTING THEM TO EMPIRICAL SCIENCE-BASED RISK ASSESSMENTS TO DETERMINE THE SPECIFIC HARMS CAUSED BY SPECIFIC USES TO SPECIFIC HUMAN SPECIMENS OR SUBGROUPS OR ENVIRONMENTAL ECOSYSTEMS. SUCH 'LISTINGS' ARE REMINISCENT OF MARXIST SOVIET-STYLE REGULATIONS THAT ARE INTENDED TO STIGMATIZE THE PRODUCERS, FORMULATORS OR USERS OF SUCH 'LISTED' SUBSTANCES' SO THAT THEY CURTAIL THEIR ACTIVITIES WITHOUT PROOF OF MORE. THIS IS ENVIRONMENTAL SOCIALISM, A SECULAR RELIGION, PLAIN & SIMPLE, DESPITE WHAT THE ACADEMIC DEMAGOGUES PREACH. See: Lawrence A. Kogan, <em>Exporting Europe's Protectionism, National Interest</em>, No. 77 (Fall 2004) at: <a href="http://www.itssd.org/Publications/Kogan%20TNI%2077FINAL.pdf">http://www.itssd.org/Publications/Kogan%20TNI%2077FINAL.pdf</a> .]</strong> </span><br /><br /><br /><strong><span style="font-size:180%;">Linking the word "concern" to a chemical is enough to trigger a market reaction.</span></strong> Earlier this year, when government officials in Canada and the United States said they worried about health effects possibly caused by bisphenol A (BPA), a chemical used in plastics, major retailers pulled from their shelves baby bottles containing the chemical.<br /><br /><br /><strong><span style="font-size:180%;"><span style="font-size:130%;">[THIS IS OTHERWISE KNOWN AS GOVERNMENT & NGO FEARMONGERING. AND, IT IS REFLECTED IN EUROPE'S OPERATIVE PHILOSOPHICAL & LEGAL TOUCHSTONE, KNOWN AS THE 'STANDARD-OF-PROOF DIMINISHING, BURDEN-OF-PROOF-REVERSING, GUILTY-UNTIL-PROVEN-INNOCENT, 'I-FEAR-THEREFORE-I-SHALL-BAN', 'HAZARD- NOT-RISK-BASED' PRECAUTIONARY PRINCIPLE. IT ENTITLES GOVERNMENTS TO REGULATE ANYTHING THEY ESSENTIALLY DESIRE.]</span> </span></strong><br /><strong><span style="font-size:180%;"></span></strong><br /><br /><strong><span style="font-size:130%;">IMAGINERY DANGERS WITHOUT EVIDENCE OF PROBABLE HARM.]</span></strong><br /><br /><br />"When we see lead in toys and BPA in baby bottles, all of these things arouse a kind of parental anxiety that overrides any counter-arguments based on science that industry might make," Jasanoff said.<br /><br /><br /><strong><span style="font-size:130%;">[THIS IS ESPECIALLY TRUE WHEN WE HAVE GRANT-SEEKING ACADEMICS LIKE MS. JASANOFF WHO CRAVE PUBLIC ATTENTION & ADULATION.]</span></strong><br /><br /><br />In the absence of strong federal regulations in the United States, a patchwork system is emerging. Individual states are banning specific chemicals, and half a dozen lawmakers on <a href="http://www.washingtonpost.com/ac2/related/topic/Capitol+Hill?tid=informline" target="">Capitol Hill</a> have introduced bills aimed at shutting down production of various chemicals.<br /><br /><br /><strong><span style="font-size:130%;">[THIS IS A MISNOMER. THE U.S. HAS AMONG THE STRONGEST FEDERAL REGULATIONS ON CHEMICALS IN THE WORLD. THIS IS NOT THE PROBLEM. THE PROBLEM CONCERNS EUROPE'S PENCHANT FOR REGULATORY PROTECTIONISM THAT ASSUMES THE FORM OF UNSCIENTIFIC ENVIRONMENTAL & HEALTH REGULATIONS JUSTIFIED THROUGH THE USE OF PUBLIC FEAR-PROMOTING CAMPAIGNS EMPLOYED BY EUROPEAN GOVERNMENT-FUNDED NONGOVERNMENTAL ORGANIZATIONS (NGOs).]</span></strong><br /><br /><br /><a href="http://projects.washingtonpost.com/congress/members/l000123/" target=""><strong><span style="font-size:180%;">Sen. Frank Lautenberg</span></strong></a><strong><span style="font-size:180%;"> (D-N.J.) introduced a measure last month that would overhaul U.S. chemical regulation along the lines of the new European approach.</span></strong> It would require the <a href="http://www.washingtonpost.com/ac2/related/topic/Centers+for+Disease+Control+and+Prevention?tid=informline" target="">Centers for Disease Control and Prevention</a> to use biomonitoring studies to identify industrial chemicals present in umbilical cord blood and decide whether those chemicals should be restricted or banned. A study by the nonprofit <a href="http://www.washingtonpost.com/ac2/related/topic/Environmental+Working+Group?tid=informline" target="">Environmental Working Group</a> found an average of 200 industrial chemicals in the cord blood of newborns.<br /><br /><br /><span style="font-size:130%;"><strong>[THE RECENT LAUTENBERG/WAXMAN INITIATIVE REFLECTS THE SOCIALIST PROCLIVITIES OF THE DEMOCRATIC </strong><strong>PARTY-DOMINATED NEW JERSEY & WASHINGTON, DC LEGISLATURES. APPARENTLY, HE AND OTHER DEMOCRATS HAVE BEEN WORKING BEHIND CLOSED DOORS FOR SEVERAL YEARS WITH THE EUROPEAN COMMISSION, MOST LIKELY WITH A FAVORABLE NOD FROM OBAMA. See: <em>EU chemicals law REACH inspires US bill</em>, Euractiv.com (July 18, 2005 Updated: May 21, 2007, at: <a href="http://www.euractiv.com/en/environment/eu-chemicals-law-reach-inspires-us-bill/article-142660">http://www.euractiv.com/en/environment/eu-chemicals-law-reach-inspires-us-bill/article-142660</a> ; <em>US Eyes REACH-style Law for Chemicals</em>, Euractiv.com (June 3, 2008), at: <a href="http://www.euractiv.com/en/environment/us-eyes-reach-style-law-chemicals/article-172968">http://www.euractiv.com/en/environment/us-eyes-reach-style-law-chemicals/article-172968</a> ; <em>Senators Obama, Lautenberg Say Chemical Plant Security Legislation is Far too Weak, Fails to Protect Millions of Americans</em>, Barack Obama, U.S. Senator From Illinois Website, Press Release (Sept. 27, 2006) at: <a href="http://obama.senate.gov/press/060927-senators_obama_1">http://obama.senate.gov/press/060927-senators_obama_1</a> ; <em>Lautenberg, Solis, Waxman Introduce Legislation To Protect Americans From Hazardous Chemicals In Consumer Products, </em>Frank R. Lautenberg, United States Senator for New Jersey, Press Release (May 20, 2008), at: <a href="http://lautenberg.senate.gov/newsroom/record.cfm?id=298072">http://lautenberg.senate.gov/newsroom/record.cfm?id=298072</a> ].</strong></span><br /><br /><br />Said Denison: "We still have quite a ways to go in convincing the <a href="http://www.washingtonpost.com/ac2/related/topic/U.S.+Congress?tid=informline" target="">U.S. Congress</a> this is a problem that needs fixing." <strong><span style="font-size:180%;">But new policies in Europe and in Canada push the United States closer to change, he said. </span></strong>"They show it's feasible, it's being done elsewhere, and we're behind."<br /><br /><br /><strong><span style="font-size:130%;">[OBAMA COULD NOT HAVE SAID IT BETTER!!]</span></strong><br /><br />-------------------------------------------------------------------------------------------------<br /><strong><a href="http://firedoglake.com/2008/03/01/dems-eco-views-ii-frankenlabels-and-the-precautionary-principle">http://firedoglake.com/2008/03/01/dems-eco-views-ii-frankenlabels-and-the-precautionary-principle</a> </strong><br /><br /><br /><strong><span style="font-size:130%;">Obama Likely to Support U.S. Adoption of EU's REACH Regulatory Regime & the EU Precautionary Principle??</span></strong><br /><br /><br /><strong><span style="font-size:130%;">Dems’ Eco-Views II: Frankenlabels and the Precautionary Principle</span></strong><br /><br /><span style="font-size:130%;"><span style="font-size:100%;"></span></span></div><div><span style="font-size:130%;"><span style="font-size:100%;">By Kirk Murphy </span></span></div><br /><p><span style="font-size:130%;"><span style="font-size:100%;"></span></span></p><div><span style="font-size:130%;"><span style="font-size:100%;"></span></span> </div><div><span style="font-size:130%;"><span style="font-size:100%;">Fire Dog Lake</span></span></div><br /><br /><p>Good news: both Sen. Clinton and Sen Obama support labelling Frankenfoods. Why care? Well, all of us in the US - and everyone in our families and communities - are human lab rats in a giant experiment. American adults and American children are the first test subjects in world history to be eating Frankenfoods.<br /><br /><br />Not so good news: both Senator Clinton and Sen. Obama have a long way to go on the Precautionary Principle, <strong><span style="font-size:130%;">although Senator Obama has a small lead on the issue</span></strong>.<br /><br /><br />...<strong><span style="font-size:130%;">Q:</span></strong> Despite years of debate and scientific effort, only a tiny fraction of the approximately 75,000 chemicals in commercial production have been subjected to even rudimentary toxicity testing. Children up to age six are most at risk because their vital organs and immune system are still developing and because they depend more heavily on their environments than adults do.<br /><br />How will existing regulations be bolstered to limit children's exposures to industrial toxins in our environment? <strong><span style="font-size:130%;">Do you support adopting Europe's REACH here in the U.S.?<br /></span></strong><br /><br /><strong><span style="font-size:130%;">A:</span></strong> First, I will ensure that current law is enforced to meet its original intent. The Bush administration has weakly interpreted too many laws, including the Clean Air Act, to provide protections to corporate interests, and that trend will end in my administration.<br /><br /><br /><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEipqz4ztLyU3ZlvuLw_12sJvkXLFrTCj0gDEfzL-Pg2y2WaPQUUC1USFhx5Gz8MLilky2c7kv8jZeyLAtL5XrOUMZDOMSgDoZJb47JNiv7f30fGnEfTNkMWuCPwCbbe7FnZwq4iJwP6e20W/s1600-h/Blue+Party+REACH-USA-banner-ad.gif"><img id="BLOGGER_PHOTO_ID_5257503328893709074" style="margin: 0px 10px 10px 0px; float: left; width: 139px; height: 85px;" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEipqz4ztLyU3ZlvuLw_12sJvkXLFrTCj0gDEfzL-Pg2y2WaPQUUC1USFhx5Gz8MLilky2c7kv8jZeyLAtL5XrOUMZDOMSgDoZJb47JNiv7f30fGnEfTNkMWuCPwCbbe7FnZwq4iJwP6e20W/s400/Blue+Party+REACH-USA-banner-ad.gif" border="0" width="144" height="92" /></a>Second, I will build on my leadership in the U.S. Senate to ban lead in children's products and work to identify gaps in our regulatory process for other toxins that adversely affect children. <strong><span style="color: rgb(0, 0, 153);font-size:130%;" >I think that Europe's REACH program is innovative and I look forward to working with chemical safety experts in my administration to determine how well REACH is being implemented, and what aspects of the approach would be beneficial for the United States to adopt. </span></strong></p></div></div></div></div>ITSSD Charitable Missionhttp://www.blogger.com/profile/00790887154748866904noreply@blogger.com0tag:blogger.com,1999:blog-7037944389322160928.post-18517696434944526532008-06-09T11:25:00.000-07:002008-06-12T05:24:10.898-07:00OBAMA-BROWN-MICHAUD Non-Tariff Trade Barrier Act Likely to Devastate US Economy, Trigger a Global Trade War & Endanger World Peace<a href="http://thomas.loc.gov/cgi-bin/query/F?r110:1:./temp/~r110v6nddE:e17723">http://thomas.loc.gov/cgi-bin/query/F?r110:1:./temp/~r110v6nddE:e17723</a>:
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<br /><a href="http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?dbname=2008_record&page=S5043&position=all">http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?dbname=2008_record&page=S5043&position=all</a>
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<br /><a href="http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?dbname=2008_record&page=S5044&position=all">http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?dbname=2008_record&page=S5044&position=all</a>
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<br /><p><strong><span style="font-size:130%;"></span></strong></p><p><strong><span style="font-size:130%;">OBAMA-BROWN-MICHAUD Non-Tariff Trade Barrier Act Likely to Devastate US Economy, Trigger a Global Trade War & Endanger World Peace</span></strong></p><p><strong><span style="font-size:130%;"></span></strong> </p><p><strong><span style="font-size:130%;"></span></strong></p><p><strong><span style="font-size:130%;"></span></strong></p><p><strong><span style="font-size:130%;"></span></strong></p><p><strong><span style="font-size:130%;"></span></strong></p><p><span style="font-size:130%;">By ITSSD Staff</span></p><p><span style="font-size:130%;"></span></p><p><strong><span style="font-size:130%;"></span></strong></p><p><em></em></p><p><em></em></p><p><em>Two recently introduced (on June 4, 2008) bills authored by House and Senate Democratic Party members essentially shatter whatever remaining faith Americans might have in Congress' ability to formulate an intelligent, well thought out and responsible foreign trade policy that promotes rather than compromises U.S. national economic, technology and security interests.</em></p>
<br /><span style="font-size:130%;color:#3333ff;"><span style="font-size:180%;"><strong>S.3083</strong></span> <strong>and <span style="font-size:180%;">H.R. 6180</span> can be honestly characterized as legislative abominations that, if adopted and signed into law by a Democratic president, would likely trigger a global trade war among nations based on reciprocal/retaliatory <em><span style="font-size:180%;">non-tariff-based regulatory protectionism </span></em>that could potentially give rise to a world-wide depression that </strong></span><span style="font-size:130%;color:#3333ff;"><strong>jeopardizes world peace.</strong></span>
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<br />These possibilities should not be taken lightly, as the Congressional majority has evidently NOT done its homework concerning the economic events that preceded World War II. These bills are troublesome insofar as they are reminiscent of <strong><span style="font-size:130%;"><span style="color:#ff0000;">t</span><span style="color:#ff0000;">he Smoot-Hawley <em>Tariff </em>Act of 1930</span></span></strong>, which many scholars believe significantly contributed to the events that laid the basis for World War II. Readers should not be 'thrown' by the distinction-in-name-only between tariff and non-tariff trade barriers. In fact, recent history reveals that <strong><span style="font-size:130%;">other than transparent non-tariff barriers</span></strong> like those contained in <strong><span style="font-size:180%;">S. 3093 and H.R. 6180</span></strong> can cause much greater economic and political harm than can more transparent tariff rate barriers.
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<br />The American people certainly deserve better from their representatives, and are entitled to learn more about the economic history preceding WWII. For this reason, we have reproduced excerpts from one of the main international trade law textbooks used in law school and international relations programs: <strong>John H. Jackson, William J. Davey and Alan O. Sykes, <em>Legal Problems of International Economic Relations - Cases, Materials and Text</em> (4th Ed. West Publ. (c) 2002)</strong>.
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<br />"Probably the most important foreign policy goal related to international economic policy is the prevention of war. Many statesmen and scholars believe that modern history establishes a clear relationship between implementation of certain international economic policies and war. The importance of this relationship was particularly evident in the case of World War II." (p. 38).
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<br />[The following is reproduced on page 38 of the text, and taken from <strong>Richard N. Cooper, Trade Policy and Foreign Policy, U.S. Trade Policies in a Changing World Economy, Robert M. Stern Ed., (MIT (c) 1987)</strong>]:
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<br /><p>"The most disastrous single mistake any U.S. president has made in international relations was Herbert Hoover's signing of the Smoot-Hawley Tariff Act into law in June 1930. the sharp increase in tariffs, the apparent indifference of the U.S. authorities to the implications of their actions for foreigners, and the foreign retaliation that quickly followed, as threatened, helped convert what wuold have been otherwise a normal economic downturn into a major world depression. The sharp decline in foreign trade and economic activity in turn undermined the position of the moderates with respect to the nationalists in Japanese politics and paved the way for the electoral victory of the Nazis in Germany in 1932. Japan promptly invaded China in 1931, and the basis for World War II was laid."</p><p></p>
<br /><p>"Valuable lessons were learned <span style="font-size:180%;"><strong>[??] </strong></span><span style="font-size:100%;">from the Smoot-Hawley tariff experience by the foreign policy community: the threat of tariff rataliation is not always merely a bluff; tariffs do influence trade flows negatively; a decline in trade can depress national economies; <strong><span style="font-size:130%;">economic depression provides fertile ground for politically radical nostrums</span></strong>; and political radicals often seek foreign (military) adventures to distract domestic attention away from their domestic economic failures. The seeds of World War II, in both the Far East and in Europe, were sown by Hoover's signing of the Smoot-Hawley Tariff Act." (Text, p. 38)</span></p><p></p>
<br /><p>"Harry Hawkins, then Director of the Office of Economic Affairs of the [U.S.] Department of State, said in a 1944 speech:</p>
<br /><p>'We've seen that when a country gets starved out economically, its people are all too ready to follow the first dictator who may rise up and promise them all jobs. Trade conflict breeds noncooperation, suspicion, bitterness. Nations which are economic enemies are not likely to remain political friends for long.</p><p>At the end of the war, the United States government, in suggesting a draft charter for an international trade organization, stated:</p><p></p><p>'The fundamental choice is whether countries will struggle against each other for wealth and power, or work together for security and mutual advantage...The experience of cooperation in the task of earning a living promotes both the habit and the techniques of common effort and helps make permanent the mutual confidence on which the peace depends.'" (Text p. 39). </p><p></p><p>------------------------------------------------------------------------------------------------ </p><p align="center"><strong><span style="font-size:130%;">PRELIMINARY REVIEW OF KEY PROVISIONS OF
<br /></span></strong><strong><span style="font-size:130%;">S. 3083 / H.R. 6180
<br />“Trade Reform, Accountability, Development, and Employment Act of 2008”
<br />“TRADE Act of 2008”
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<br /><p><strong>GENERAL CONCLUSIONS:
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<br />1. These bills use language <strong><span style="font-size:180%;color:#3333ff;">reminiscent of European protectionist trade, environment, health and safety regulations</span></strong>, which justifies stricter NON-scientific scrutiny of and imposition of economically onerous compliance burdens upon U.S. and foreign economic actors. As in the case of Europe, these bills <strong><em>allege </em></strong>numerous market failures which current and prior governments are alleged to have exacerbated by incorporating them within U.S. regional and bilateral free trade and investment agreements which are characterized as ‘FLAWED’ and due for ‘RENEGOTIATION’ and REVISION’.
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<br />2. These bills make reference to spurious public and consumer group polls. <span style="color:#3333ff;"><strong><span style="font-size:180%;">These bills also use language that can be linked to presidential aspirant, Senator Barack Obama</span></strong>,</span> judging from the statements made by U.S. Senator Sherrod Brown during his colloquy introducing S. 3083. His statements specifically utilize 'Obama language': “<span style="color:#3333ff;"><strong><span style="font-size:180%;color:#3333ff;">It is time for a change</span></strong>. <strong><span style="font-size:180%;">The Trade Reform, Accountability, Development and Employment, TRADE, Act</span></strong></span>, which Senator DORGAN, Senator FEINGOLD, Senator CASEY, Senator WHITEHOUSE and I are introducing today, <strong><span style="font-size:180%;color:#3333ff;">is a step towards that change.” </span></strong></p><p><strong><span style="font-size:180%;color:#3333ff;"></span></strong></p><p></p><p> </p><p>3. <strong><span style="font-size:180%;color:#3333ff;">These bills appear concerned more with harmonizing U.S. regulatory standards and laws with lofty and abstract United Nations, global governance-based ‘sustainable development’ treaty standards and EU regulatory laws than with U.S.-specific economic, technological and national security interests.</span></strong> In particular, the bills aim to reduce protection of U.S.-owned private property and investment rights, tangible as well as intangible IP and contract rights, by subjecting them to undefined United Nations global governance/ sustainable development restrictions and conditions.
<br /></p><p></p><p></p>4. In addition to <strong><span style="font-size:180%;"><span style="color:#3333ff;">unilaterally calling for the renegotiation and revision of U.S. regional regional trade agreements</span> </span></strong>including <span style="font-size:180%;color:#3333ff;"><strong><em>NAFTA</em></strong></span> (North American Free Trade Agreement), <strong><span style="font-size:180%;color:#3333ff;"><em>CAFTA</em> </span></strong>(Central American Free Trade Act) <strong><span style="font-size:180%;"><span style="color:#3333ff;">and bilateral free</span> <span style="color:#3333ff;">trade agreements (FTAs)</span></span></strong> including <em><span style="font-size:180%;color:#3333ff;"><strong>US-Jordan, US-Oman, US-Bahrain, US-Morocco</strong></span>, </em><strong><span style="font-size:180%;color:#3333ff;"><em>US-Israel</em>, plus proposed FTAs with <em>Panama, Peru, Colombia and South Korea</em></span></strong>, <span style="color:#3333ff;"><strong><span style="font-size:180%;">and a host of bilateral investment treaties (BITS)</span></strong>,</span> these bills <strong><span style="font-size:180%;color:#3333ff;">also call for the renegotiation and revision of the provisions of at least three and probably more multilateral <em>WTO</em> Agreements</span></strong>, including: the General Agreement on Tariffs and Trade (GATT) 1994; the World Trade Organization (WTO) Sanitary and Phytosanitary Agreement (SPS); the WTO Technical Barriers to Trade (TBT) Agreement; the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS); General Agreement on Trade in Services (GATS); WTO Agreement on Government Procurement, etc. <strong><span style="font-size:180%;">THIS CERTAINLY WOULD GO A LONG WAY TOWARD PROMOTING BETTER U.S. RELATIONS WITH THESE COUNTRIES!! ESPECIALLY WITH THE MUSLIM COUNTRIES OF THE MIDDLE EAST!!</span></strong>;
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<br />5. These bills raise constitutional separation of powers and federalism issues.
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<br />6. These bills, track the language of developing country declarations made at intergovernmental fora such as the <span style="font-size:180%;color:#3333ff;"><strong>United Nations</strong></span> World Health Organization (WHO), World Intellectual Property Organization (WIPO), United Nations Environment Program (UNEP - specifically, the UN Convention on Biological Diversity)), the United Nations Educational, Scientific and Cultural Organization (UNESCO), the United Nations Commission on Human Rights (UNCHR), the United Nations General Assembly's Economic and Social Commission (ECOSOC), etc., which create a hierarchy of fundamental universal human social, environmental and labor rights. <strong><span style="font-size:180%;color:#3333ff;">This United Nations hierarchy of fundamental rights, embraced by S. 3083 and H.R. 6181, places U.S. constitutionally protected private property rights essentially at the base of that hierarchy</span></strong>. <span style="font-size:180%;color:#3366ff;"><strong><em>These bills would effectively cede more U.S. legal /economic sovereignty to United Nations organizations.</em>
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<br />7. <span style="color:#3333ff;"><strong><span style="font-size:180%;">These bills would effectively sanction the ‘giving away’ of U.S. private property rights in sensitive technologies that are at the foundation of America's 21st century knowledge economy to the developing world, for less than fair market value</span></strong>, <strong><span style="font-size:180%;">both tangible and intangible,</span></strong> <strong><span style="font-size:180%;"><em>in violation of the U.S. Constitution</em></span></strong>.</span> The U.S. Supreme Court ruled in the case of <em><strong><span style="font-size:180%;">Reid v. Covert</span></strong></em>, 354 U.S. 1, 5-9 (1957) that it is the constitutional obligation of the President and the Congress to ensure protection and enforcement of U.S. constitutionally protected private property rights both here and abroad, against the arbitrary inclinations of both the U.S. government AND foreign governments. These bills, in other words, would effectively permit the direct (nationalization/expropriation) and indirect (regulatory) ‘taking’ of U.S. private property rights by the U.S. and foreign governments for an ostensible public use, <strong><span style="font-size:180%;color:#3333ff;">in violation of the Fifth Amendment of the Bill of Rights</span></strong>, without payment of ‘just compensation’.
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<br />8. <span style="font-size:180%;color:#3333ff;"><strong>These bills would effectively increase the size of the U.S. government</strong></span> to administer all of the new protectionist laws, regulations and taxes that are called for. For this reason, alone, it is accurate to say that it will push the United States closer to the European model of governance. Recent OECD reports reflect that approximately 50% of European Union GDP is attributable to revenues and expenditures made by European governments. <strong><span style="font-size:180%;">In other words, one of Europe's main industries is GOVERNMENT, which is contrary to one of the most profound of the founding principles of the United States - namely, LIMITED GOVERNMENT</span></strong>.
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<br /><strong><span style="font-size:130%;">SPECIFIC OBSERVATIONS</span></strong>
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<br /><strong><span style="font-size:130%;">STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS -- (Senate - June 04, 2008)</span></strong>
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<br /><strong>[Page: S5043]</strong>
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<br />...<strong><span style="font-size:180%;color:#3333ff;">By Mr. BROWN (for himself, Mr. DORGAN, Mr. FEINGOLD, Mr. CASEY, and Mr. WHITEHOUSE):</span></strong>
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<br /><strong><span style="font-size:180%;color:#3333ff;">S. 3083.</span></strong> <span style="color:#000000;">A bill</span> to require a review of existing trade agreements and renegotiation of existing trade agreements based on the review, to set terms for future trade agreements, to express the sense of the Senate that the role of Congress in trade policymaking should be strengthened, and for other purposes; to the Committee on Finance.
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<br /><strong><span style="font-size:180%;color:#3333ff;">Mr. BROWN</span></strong>. Mr. President, the goal of <span style="font-size:130%;color:#3333ff;"><strong><em>our trade policy</em></strong></span> <span style="font-size:130%;color:#3333ff;"><em><strong>should be</strong></em></span> <strong><span style="font-size:180%;color:#3333ff;"><em>to promote fair competition and lift up workers at home and abroad</em>.
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<br /><span style="font-size:130%;"><strong>[THIS SOCIALIST-SOUNDING TRADE POLICY IS SYNONOMOUS WITH THE PROTECTIONIST TRADE POLICY OF THE EUROPEAN UNION]</strong>.</span>
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<br />Americans support trade that allows responsible businesses to thrive, fueling good-paying jobs and a strong, resilient economy.
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<br />But <strong><em>wrong-headed trade pacts</em></strong> following <span style="font-size:180%;color:#3333ff;"><strong>the failed NAFTA-model</strong></span> have betrayed middle class families across the country, destabilizing our economy and destroying communities in rural and urban areas alike.
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<br /><a href="http://media.economist.com/images/20080301/D0908US1.jpg"><img style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 435px; CURSOR: hand; HEIGHT: 328px" height="143" alt="" src="http://media.economist.com/images/20080301/D0908US1.jpg" border="0" /></a><span style="font-size:130%;"><strong>[THE NAFTA TRADE AGREEMENT MODEL ISN'T FLAWED. RATHER, THE POLICY FAILURE IS THE ABSENCE OF A SEPARATE TAX-DEDUCTIBLE RETRAINING PROGRAM OFFERED BY COMPANIES TO DISLOCATED WORKERS . WHERE WAS THE DEMOCRATIC PARTY & THEIR IDEAS WHEN THEY WERE NEEDED MOST DURING THE 1990's??? ISN'T IT A LOT EASIER FOR THE DEMOCRATS TO NOW COMPLAIN AND SEEK RADICAL 'CHANGE' IN ORDER TO COVER-UP THEIR PAST POLICY FAILURES? WHY HAVE DEMOCRATS FAILED TO UPDATE THE POSSIBLE REEDUCATION OPPORTUNITIES THAT COULD HAVE BEEN PROVIDED TO 'OUTSOURCED' WORKERS?] </strong>
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<br />In my state of Ohio, more than 200,000 manufacturing jobs have been eliminated since 2001. Across the country, more than 3 million manufacturing jobs have been eliminated in that time.
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<br />Our failures to modernize our Nation's trade policy, to learn from our mistakes, and to respond to changing dynamics in the global arena, hurt communities like Toledo and Steubenville and Dayton.
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<br />That is why voters in my state of Ohio and across the country have sent a message loud and clear demanding a new direction, a very different direction, for our nation's trade policy.
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<br />Over the last 8 years, our approach to trade has been haphazard at best.
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<br />In the last 2 years, since voters elected candidates who support fair trade, Congress has reasserted itself in trade policy-making, with some improvements to proposed deals with <span style="font-size:180%;color:#3333ff;"><strong>Peru</strong></span>, <span style="font-size:180%;color:#3333ff;"><strong>Panama</strong></span>, <strong><span style="color:#3333ff;"><span style="font-size:180%;">Colombia</span>,</span></strong> and <strong><span style="font-size:180%;color:#3333ff;">South Korea</span></strong>.
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<br /><a href="http://www.danegerus.com/weblog/images/cb0411wj.jpg"><img style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 384px; CURSOR: hand; HEIGHT: 320px" height="152" alt="" src="http://www.danegerus.com/weblog/images/cb0411wj.jpg" border="0" /></a><strong><span style="font-size:130%;color:#3333ff;">We also have chosen not to grant President Bush a renewal of Fast Track</span></strong>.
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<br />But our approach to trade has not evolved from reactive to proactive. We have not forged a new approach to trade that is results-oriented, an approach focused squarely on the goals of economic strength, job creation, and U.S. self-sufficiency.
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<br />Not surprisingly, <strong><span style="font-size:180%;color:#3333ff;">polls show that Americans reject current trade policy as misguided</span></strong>.
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<br /><strong><span style="font-size:130%;">[THESE POLLS ARE LIKELY FICTITIOUS, CONTAINING LEADING QUESTIONS FRAMED BY PARTISAN-MINDED NONGOVERNMENTAL ENVIRONMENTAL, LABOR & CONSUMER <em>EXTREMIST</em> GROUPS WORKING WITH THE DEMOCRATIC PARTY, <em>& NOT BY ORDINARY AMERICANS</em>.]</span></strong>
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<br />That is because it is.
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<br />It is time to learn from our mistakes.
<br /><a href="http://images.cafepress.com/product/24293337_240x240_F.jpg"><img style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 200px; CURSOR: hand" alt="" src="http://images.cafepress.com/product/24293337_240x240_F.jpg" border="0" /></a>
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<br /><strong><span style="font-size:180%;color:#cc0000;">It is time for a change</span></strong>. The Trade Reform, Accountability, Development and Employment, TRADE, Act, which Senator DORGAN, Senator FEINGOLD, Senator CASEY, Senator WHITEHOUSE and I are introducing today, is <strong><span style="font-size:180%;color:#3333ff;">a step towards that change</span></strong>.
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<br /><strong><span style="font-size:180%;color:#3333ff;">This legislation will serve as a template for how to craft a trade agreement that works for workers, for business owners, for our country</span></strong>.
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<br /><span style="font-size:130%;"><strong>[THE OBAMA-BROWN-MICHAUD BILL'S APPROACH FOR PROTECTING U.S. COMPANIES & WORKERS FROM GLOBALIZED TRADE CLEARLY FOLLOWS THE SAME PRESCRIPTION THAT THEIR PARTY RECOMMENDS TO PROTECT U.S. COMPANIES THAT EMPLOY ALIENS IN VIOLATION OF U.S. IMMIGRATION LAWS. IN BOTH CASES, U.S. COMPANIES ARE GIVEN A PROTECTIONIST 'PASS' BY THE U.S. CONGRESS. THIS SOUNDS LIKE INTERVENTIONIST SOCIAL & ECONOMIC 'ENGINEERING'/MARKET-MAKING.]</strong>
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<br /><span style="font-size:180%;"><strong><span style="color:#3333ff;">This legislation will mandate a review of all existing trade agreements and will require the President to submit renegotiation plans for those agreements before pursuing new trade agreements</span></strong>.</span>
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<br />The TRADE Act will create a committee comprised of House and Senate leaders who will review the President's plan for renegotiation.
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<br /><strong>This bill spells out standards for future trade agreements, standards based on fostering fair competition, promoting good-paying jobs, and addressing unethical behavior</strong> by multinational corporations, including the exploitation of people and natural resources in developing nations.
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<br />Trade is an exchange that relies on the integrity of its participants. We must not trade away our <strong>fundamental belief in basic human rights</strong> and our responsibility to fight the kind of exploitation that threatens vulnerable peoples and vulnerable nations.
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<br /><a href="http://www.kimrichter.com/Blog/uploaded_images/2005-566-political-behaviou-785793.jpg"><img style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 449px; CURSOR: hand; HEIGHT: 383px" height="162" alt="" src="http://www.kimrichter.com/Blog/uploaded_images/2005-566-political-behaviou-785793.jpg" border="0" /></a>
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<br /><a href="http://nakedshorts.typepad.com/photos/uncategorized/hypocrisy.jpg"><img style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 443px; CURSOR: hand; HEIGHT: 322px" height="170" alt="" src="http://nakedshorts.typepad.com/photos/uncategorized/hypocrisy.jpg" border="0" /></a>That is why our trade policy must not sidestep the <strong><span style="font-size:180%;color:#3333ff;">impact of lax trade agreements and unethical corporations on developing nations</span></strong>.
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<br /><span style="font-size:130%;"><strong>[INSTEAD OF WORRYING SO MUCH ABOUT OTHER COUNTRIES AND THE ETHICS OF U.S. & FOREIGN COMPANIES, THE OBAMA-BROWN-MICHAUD BILL SHOULD BE CONCERNED MORE ABOUT U.S. COMPANIES, U.S.-OWNED PROPERTY RIGHTS & THE ETHICS OF U.S. CONGRESSIONAL REPRESENTATIVES & SENATORS.]</strong>
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<br />The TRADE Act also sets out criteria for a new negotiating process--<strong><span style="font-size:180%;color:#3333ff;">one that would do away with the fundamentally-flawed Fast Track process and return power to Congress when considering our nation's trade pacts. </span></strong>
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<br /><a href="http://www.newmediaexplorer.org/emma_holister/CA_Codex%2BEU.jpg"><img style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 446px; CURSOR: hand; HEIGHT: 320px" height="138" alt="" src="http://www.newmediaexplorer.org/emma_holister/CA_Codex%2BEU.jpg" border="0" /></a>We take for granted our clean air, safe food, and safe drinking water. But these blessings are not by chance: they result from <strong><span style="font-size:180%;color:#3333ff;">laws and</span></strong> <strong><span style="font-size:180%;color:#3333ff;">rules that foster fair wages, protect the public health, and promote environmental stewardship.
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<br /></span></strong>
<br /><span style="font-size:180%;color:#3333ff;"><strong>Flawed trade policy accelerates the import o<a href="http://www.caglecartoons.com/images/preview/%7B38238634-853f-4208-b581-802ed3dadef9%7D.gif"><img style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 423px; CURSOR: hand; HEIGHT: 349px" height="167" alt="" src="http://www.caglecartoons.com/images/preview/%7B38238634-853f-4208-b581-802ed3dadef9%7D.gif" border="0" /></a>f toxic toys, contaminated toothpaste, and poisonous pet food into this country.
<br /></strong></span>
<br />
<br />It does not have to be this way.
<br />
<br />We have a choice.
<br />
<br />We can continue a race to the bottom in wages, worker safety, environmental protection, and health standards.
<br />
<br />
<br /><strong><span style="font-size:180%;color:#3333ff;">Or, we can use trade agreements to lift standards abroad--not threaten workers and consumers</span></strong>.
<br />
<br />
<br />We can continue down the path of the failed NAFTA model, or <strong><span style="font-size:180%;color:#3333ff;">we can write trade agreements that sustain and grow our Nation's manufacturing self-sufficiency, create good-paying jobs and reduce the trade deficit by providing fair and transparent market access.
<br /></span></strong>
<br /><strong><span style="font-size:180%;color:#3333ff;"><span style="font-size:100%;"></span></span></strong>
<br /><strong><span style="color:#3333ff;"><span style="font-size:180%;color:#000000;"><span style="font-size:130%;">[WHAT DO THE OBAMA-BROWN-MICHAUD BILL'S SPONSORS MEAN TO SAY? IS IT THEIR INTENTION TO REARRANGE INTERNATIONAL ECONOMIC AFFAIRS SO THAT U.S. COMPANIES AND FOREIGN COMPANIES WILL BE FORCED TO CHARGE U.S. CONSUMERS HIGHER PRICES FOR THEIR PRODUCTS IN ORDER TO COMPENSATE FOR THE HIGHER ENVIRONMENTAL & LABOR COSTS THEY WILL INCUR HERE & ABROAD IN ORDER TO SATISFY MORE COSTLY STRINGENT STANDARDS?]</span> </span></span></strong>
<br />
<br /><a href="http://www.wafa.org.au/articles/hypocrisy/hypocrisy.gif"><img style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 435px; CURSOR: hand; HEIGHT: 410px" height="156" alt="" src="http://www.wafa.org.au/articles/hypocrisy/hypocrisy.gif" border="0" /></a>We can forsake U.S. standards and U.S. values and ignore trade abuses in order to mass produce trade agreements, or we can write trade agreements that fulfill their promises, <span style="color:#3333ff;"><span style="font-size:180%;"><strong>that hold our trading partners accountable for abiding by the rules, and that build on the hard-fought battles waged to build a strong middle class, reward good corporate citizens, preserve our natural resources, and ensure that the food and products Americans purchase are safe</strong>.
<br /></span></span>
<br />
<br /><span style="font-size:130%;"><span style="color:#3333ff;"><strong><span style="color:#000000;">[THE EUROPEAN UNION HAS BEEN MAKING THIS ARGUMENT FOR APPROXIMATELY ONE DECADE. HOWEVER, SIGNIFICANT RESEARCH FINDINGS HAVE SHOWN THAT SUCH RHETORIC IS MERELY A COVER-UP FOR A NEW GENRE OF DISGUISED <em>NON-TARIFF</em> TRADE PROTECTIONISM THAT DIMINISHES INDIVIDUAL WELFARE, INDIVIDUAL LIBERTY AND INDIVIDUAL ECONOMIC & SOCIAL OPPORTUNITIES, WHILE REDUCING THE STANDARD OF LIVING AND INCREASING ITS COST FOR MOST CITIZENS. APPARENTLY, THE OBAMA-BROWN-MICHAUD BILL SPONSORS SEEK TO IMPORT INTO THE U.S. & 'RUBBER-STAMP' AS U.S. LAW, THE VERY EXPENSIVE & INEFFICIENT EUROPEAN REGULATORY LAW, STANDARDS & TRADE SYSTEMS].</span></strong> </span>
<br /></span>
<br />
<br />We can continue to use trade deals to lock in <strong><span style="font-size:180%;">protections</span></strong> for Wall Street, the drug companies, and oil companies, or we can create a predictable structure for international trade <span style="color:#3333ff;"><strong><span style="font-size:180%;">without providing corporations with overreaching privileges and rights of private enforcement that undermine our laws.</span></strong>
<br /></span>
<br />
<br /><span style="font-size:130%;"><strong>[ARE THE OBAMA-BROWN-MICHAUD BILL SPONSORS SERIOUS?? THE CONGRESSIONAL MAJORITY'S RECENT PROMOTION OF THE 'BOXER'-MODIFIED CARBON CAP & TRADE LEGISLATION (S.2191) REVEALED THEIR EFFORTS TO 'LOCK-IN' MARKET PROTECTIONS AS WELL AS OBSCENE PROFIT MARGINS FOR WALL STREET CARBON TRADERS & INSURANCE BROKERAGES. AND THROUGH PROMOTION OF THE UN LAW OF THE SEA CONVENTION, THE CONGRESSIONAL MAJORITY HAS SOUGHT TO 'LOCK-IN' PROFITS FOR OIL & GAS COMPANIES IN THE ARCTIC REGION AS A QUID PRO QUO FOR PROMOTING THE TREATY'S RATIFICATION. DOESN'T THE CONGRESSIONAL MAJORITY, INCLUDING THE OBAMA-BROWN-MICHAUD BILL SPONSORS, SEE THE HYPOCRISY HERE?]</strong>
<br />
<br />
<br /><strong>[ARE THE OBAMA-BROWN-MICHAUD BILL SPONSORS & CONGRESSIONAL MAJORITY NOW SEEKING TO REVERSE GLOBALIZATION? EVEN THOUGH THEIR PARTY PREVIOUSLY SUPPORTED IT?? IS IT BECAUSE THEY REALLY DON'T KNOW HOW TO ADDRESS IT??]</strong>
<br /><strong></strong>
<br /><strong></strong>
<br /><strong>[DON'T THE SPONSORS OF THE OBAMA-BROWN-MICHAUD BILL BEAR THE BURDEN OF PROVING/SHOWING WHY 'A CHANGE' IN U.S. TRADE POLICY IS NECESSARY? IT DOESN'T APPEAR THAT THEY HAVE SATISFIED THEIR BURDEN OF PROOF BY MERELY CLAIMING THAT A NEW 'CHANGED' TRADE POLICY IS NECESSARY. WHAT METRICS HAVE THEY PRODUCED?? HOW INCLUSIVE AND BROAD WAS THEIR SURVEY?? APPARENTLY, NOT VERY, GIVEN THAT THE OBAMA-BROWN-MICHAUD BILL REQUIRES COLLECTION OF DATA ON THE IMPACT OF TRADE. SO, IN EFFECT, THE SPONSORS OF THE OBAMA-BROWN-MICHAUD BILL CANNOT NOW MEET THIS BURDEN BECAUSE THEY LACK THE DATA.]</strong>
<br /><strong></strong>
<br />
<br /><strong>[IS IT THE TEXT OF THE CURRENT U.S. TRADE AGREEMENTS THAT IS TO BLAME? OR, RATHER, IS IT NOT MORE LIKELY THAT THE TEXT OF THESE AGREEMENTS IS ACCEPTABLE, BUT THAT ENFORCEMENT OF ITS TERMS HAS BEEN LESS THAN SATISFACTORY? THIS IS MORE LIKELY WHY WHY THE U.S. HAS NOT FULLY REALIZED THE PROMISED BENEFITS FROM INTERNATIONAL TRADE. THEREFORE, THE PRUDENT CHOICE WOULD NOT BE TO REWRITE THE CURRENT TRADE AGREEMENTS. THE PRUDENT CHOICE, INSTEAD, WOULD BE TO MORE VIGILANTLY ENFORCE THE TERMS OF THE CURRENT TRADE AGREEMENTS THROUGH WTO and/or ARBITRAL DISPUTE SETTLEMENT PROCEDURES. AMONG THE TRADE AGREEMENT TERMS TO BE ENFORCED ARE THOSE PROHIBITING FOREIGN COUNTRY GOVERNMENTS FROM ADOPTING & IMPLEMENTING HEALTH, ENVIRONMENT & SAFETY REGULATIONS & PRODUCT STANDARDS AS DISGUISED PROTECTIONIST TRADE BARRIERS THAT DENY MARKET ACCESS TO U.S. GOODS. THE USTR MUST ENSURE THAT FOREIGN LAWS & STANDARDS ARE BASED ON EMPIRICAL RISK ASSESSMENT, ECONOMIC COST-BENEFIT ANALYSIS & TRANSPARENCY & ACCOUNTABILITY. OTHER TRADE AGREEMENT TERMS THAT REQUIRE MORE VIGILANT ENFORCEMENT BY USTR INCLUDE THOSE RELATING TO PRIVATELY OWNED TANGIBLE & INTANGIBLE (e.g., INTELLECTUAL PROPERTY RIGHTS). U.S. FOREIGN TRADING PARTNERS SHOULD BE WARNED THAT THERE WILL NO LONGER BE A 'FREE RIDE', AND THAT U.S. PRIVATE PROPERTY RIGHTS, ESPECIALLY PATENTS, COPYRIGHTS, & TRADE SECRETS, WILL BE ENFORCED GOING FORWARD.] </strong></span>
<br />
<br />
<br />Middle class families, American manufacturers and farmers, and community leaders across the country all know that we need a new direction for trade.
<br />
<br />
<br />I am going to ask my leadership, and my caucus, to work with me on this legislation. And I look forward to working with my allies on the other side of the aisle <strong><span style="font-size:180%;color:#3333ff;">to modernize U.S. trade policy</span></strong>.
<br />
<br />
<br /><strong><span style="font-size:130%;">[<span style="color:#3333ff;">MR. BROWN</span> REALLY MEANS TO <em><span style="color:#3333ff;">'PROTECTIONIZE' </span></em>U.S. TRADE POLICY].</span></strong>
<br />
<br />
<br />Mr. President, I ask unanimous consent that the text of the bill be printed in the RECORD.
<br />
<br />
<br />There being no objection, the text of the bill was ordered to be printed in the Record, as follows:
<br />
<br />
<br /><strong><span style="font-size:180%;color:#3333ff;">S. 3083
<br /></span></strong>
<br />
<br />Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
<br />
<br />
<br />SECTION 1. SHORT TITLE.
<br />
<br />This Act may be cited as the <strong><span style="font-size:180%;color:#3333ff;">``Trade Reform, Accountability, Development, and Employment Act of 2008'' or the ``TRADE Act of 2008''</span></strong>.
<br />
<br />
<br />SEC. 2. DEFINITIONS.
<br />
<br />In this Act:
<br />
<br />(1) CORE LABOR STANDARDS.--<span style="font-size:180%;color:#3333ff;"><strong>The term ``core labor standards'' means the core labor rights as stated in the International Labour Organization conventions</strong></span> dealing with--
<br />
<br />(A) freedom of association and the effective recognition of the right to collective bargaining;
<br />
<br />(B) the elimination of all forms of forced or compulsory labor;
<br />
<br />(C) the effective abolition of child labor; and
<br />
<br />(D) the elimination of discrimination with respect to employment and occupation.
<br />
<br />
<br />(2) <strong><span style="font-size:180%;color:#3333ff;">MULTILATERAL ENVIRONMENTAL AGREEMENTS.--The term ``multilateral environmental agreements'' means any international agreement or provision thereof to which the United States is a party and which is intended to protect, or has the effect of protecting, the environment or human health</span></strong>.
<br />
<br />
<br />(3) <span style="font-size:180%;color:#3333ff;"><strong>TRADE AGREEMENTS</strong></span>.--
<br />
<br />(A) IN GENERAL.--The term ``trade agreement'' includes the following:
<br />
<br />(i) The United States-Australia Free Trade Agreement.
<br />
<br />(ii) The United States-Morocco Free Trade Agreement.
<br />
<br />(iii) The United States-Singapore Free Trade Agreement.
<br />
<br />(iv) The United States-Chile Free Trade Agreement Implementation Act.
<br />
<br />(v) The North American Free Trade Agreement.
<br />
<br />(vi) The Agreement between the United States of America and the Hashemite Kingdom of Jordan on the Establishment of a Free Trade Area.
<br />
<br />(vii) The Dominican Republic-Central America-United States Free Trade Agreement Implementation Act.
<br />
<br />(viii) The United States-Bahrain Free Trade Agreement Implementation Act.
<br />
<br />(ix) The United States-Oman Free Trade Agreement Implementation Act.
<br />
<br />(x) The Agreement on the Establishment of a Free Trade Area between the Government of the United States of America and the Government of Israel.
<br />
<br />(xi) The United States-Peru Trade Promotion Agreement.
<br />
<br />
<br />(B) <strong><span style="font-size:180%;color:#3333ff;">URUGUAY ROUND AGREEMENTS</span></strong>.--The term ``trade agreement'' includes the following Uruguay Round Agreements:
<br />
<br />(i) The General Agreement on Tariffs and Trade (GATT 1994) annexed to the WTO Agreement.
<br />(ii) The WTO Agreement described in section 2(9) of the Uruguay Round Agreements Act (19 U.S.C. 3501(9)).
<br />
<br />(iii) The agreements described in section 101(d) of the Uruguay Round Agreements Act (19 U.S.C. 3511(d)).
<br />
<br />(iv) Any multilateral agreement entered into by the United States under the auspices of the World Trade Organization dealing with information technology, telecommunications, or financial services....
<br />
<br />------------------------------------------------------------------------------------------------
<br />
<br /><a href="http://brown.senate.gov/imo/media/doc/TRADE%20Act.pdf"><strong><span style="font-size:130%;">http://brown.senate.gov/imo/media/doc/TRADE%20Act.pdf</span></strong></a>
<br />
<br /><a href="http://www.govtrack.us/data/us/bills.text/110/s/s3083.pdf"><strong><span style="font-size:130%;">http://www.govtrack.us/data/us/bills.text/110/s/s3083.pdf</span></strong></a>
<br />
<br /><a href="http://www.citizen.org/documents/HouseTRADEActFinal.pdf"><strong><span style="font-size:130%;">http://www.citizen.org/documents/HouseTRADEActFinal.pdf</span></strong></a>
<br />
<br />
<br /><strong><span style="font-size:130%;">‘‘Trade Reform, Accountability, Development, and Employment Act of 2008’’ / ‘‘TRADE Act of 2008’’</span></strong>
<br /><strong><span style="font-size:130%;"></span></strong>
<br /><strong><span style="font-size:130%;"></span></strong>
<br /><span style="font-size:130%;"><strong>...SEC. 3. REVIEW AND REPORT ON EXISTING TRADE AGREEMENTS.
<br />
<br />
<br />(a) REVIEW AND REPORT.—
<br />
<br /></strong>(1) IN GENERAL.—Not later than June 30, 2010, the Comptroller General of the United States shall conduct a review of all trade agreements described in section 2(3) and submit to the Congressional Trade Agreement Review Committee established under section 6 a report that includes the information described under subsections (b) and (c) and the recommendations required under subsection (d). The review shall concentrate on the effective operation of the United States trade agreements program generally.
<br />
<br />
<br />(2) COOPERATION OF AGENCIES.—The Department of State, the Department of Agriculture, the Department of Commerce, the Department of Labor, the Department of the Treasury, the United States Trade Representative, and other executive departments and agencies shall cooperate with the Comptroller General and the Government Accountability Office in providing access to United States Government officials and documents to facilitate preparation of the report.
<br /></span><strong>
<br />
<br /><span style="font-size:130%;">(b) INFORMATION WITH RESPECT TO TRADE AGREEMENTS.—</span></strong><span style="font-size:130%;">The report required by subsection (a) shall, with respect to each trade agreement described in section 2(3), to the extent practical, include the following information covering the period between the date on which the agreement entered into force with respect to the United States and the date on which the Comptroller General completes the review:
<br />
<br />
<br />(1) An analysis of indicators of the economic impact of each trade agreement, such as—
<br />
<br />(A) the dollar value of goods exported from the United States and imported into the United States by sector and year;
<br />
<br />(B) the employment effects of the agreement on job gains and losses in the United States by sector and changes in wage levels in the United States in dollars by sector and year; and
<br />
<br />(C) the rate of production, number of employees, and competitive position of industries in the United States significantly affected by the agreement.
<br /></span><span style="font-size:130%;">
<br /><strong>[PRESUMABLY TO ASSESS THE POTENTIAL NEED TO INVOKE WTO ‘SAFEGUARDS’.]</strong>
<br /></span>
<br />
<br /><span style="font-size:130%;">(2) A trend analysis of wage levels on a year-to-year basis in—
<br />
<br />(A) each country with which the United States has a trade agreement described in section 2(3)(A);
<br />
<br />(B) <strong><em>each country that is a major United States trading partner</em></strong>, including Belgium, Brazil, China, France, Germany, Hong Kong, India, Ireland, Italy, Japan, South Korea, Malaysia, Netherlands, Taiwan, and the United Kingdom </span>
<br /><span style="font-size:130%;"></span>
<br /><span style="font-size:130%;"><strong>[WHAT HAPPENED TO THE OTHER 20 EU MEMBER STATES?? ARE THEY GETTING A 'PASS'??]</strong>;
<br /></span>
<br /><span style="font-size:130%;">
<br />(C) each country with which the United States has considered establishing a free trade agreement, including South Africa and Thailand;
<br />
<br />(D) each country with respect to which the United States has extended preferential trade treatment under the Caribbean Basin Economic Recovery Act (19 U.S.C. 2701 et seq.) and the Andean Trade Preference Act (19 U.S.C. 3201 et seq.).
<br />
<br />
<br />
<br /></span><span style="font-size:130%;"></span><span style="font-size:130%;"></span><p><span style="font-size:130%;"><span style="color:#3333ff;"><strong>H.R. 6180 requires:</strong></span></span></p><p><strong><span style="font-size:130%;color:#3333ff;"></span></strong></p><p><span style="font-size:130%;">(1) An analysis of the economic impact of each trade agreement, including—
<br />
<br />(A) the dollar value in inflation-controlled terms of goods exported from the United States and imported into the United States by sector, State, and year delineated by trade partner country;
<br />
<br />(B) job gains and losses in the United States by sector and State;
<br />
<br />(C) median wage levels in the United States in inflation controlled dollar terms by sector, State, and year; and
<br />
<br />(D) <em><strong>an analysis of production outsourcing decisions</strong></em> made by U.S. companies before and after the implementation of each trade agreement and the rate of value-added production, number of employees, and competitive position of industries in the United States significantly affected by the agreement;
<br />
<br />and
<br />
<br />(E) <strong><em>Income distribution in the United States</em></strong> showing distribution by quintile and poverty rates for the United States.</span></p><p><span style="font-size:130%;"></span></p><span style="font-size:130%;"><p>(2) A trend analysis of wage levels...in</p><p>(B) <em><strong>countries who comprise the top U.S. WTO trade partners</strong></em> including Belgium, Brazil, China, France, Germany, Hong Kong, India, Ireland, Italy, Japan, South Korea, Malaysia, Netherlands, Taiwan, and the United Kingdom; </p><p><strong><span style="color:#3333ff;"></span></strong></p><p><strong><span style="color:#3333ff;">H.R. 6180</span></strong> <span style="color:#3333ff;"><strong>adds Section E:</strong>
<br /></span>
<br />(E) Cambodia and Vietnam.</p><p></p><p></p><p><span style="color:#3333ff;"><strong>S. 3083</strong></span></p><p>(3) The effect on agriculture, including—
<br />
<br />(A) the trend of prices in the United States for agricultural commodities and food products that are imported into the United States from a country that is a party to an
<br />18 agreement described in section 2(3);
<br />
<br />(B) an analysis of the effects, if any, on the cost of farm programs in the United States; and
<br />
<br />(C) the number of farms operating in the United States and the number of acres under production for agricultural commodities that are exported from the United States to a country that is a party to such an agreement on a year-by-year basis.
<br /></p><p>
<br /><span style="color:#3333ff;"><strong>H.R. 6180 adds the following analysis:
<br /></strong></span>
<br />(B) An analysis of the effects, if any, on price transparency, price discovery, market concentration, and fair competition in the markets for agricultural commodities and food products that are subject to significant volumes of trade between the United States and each other country that is a party to the agreements described in Section 2(3);</p><p></p><p></p><p><span style="color:#3333ff;"><strong>S. 3083</strong></span></p><p>
<br />(4) An analysis of the progress in implementing trade agreement commitments and the record of compliance with the terms of each agreement in effect between the United States and a country listed in paragraph (2).
<br />
<br />
<br />(5) A description of any outstanding disputes between the United States and any country that is a party to an agreement listed in section 2(3), including a description of laws, regulations, or policies of the United States or any State that any country that is a party to such an agreement has challenged, or threatened to challenge, under such agreement.
<br />
<br />
<br />(6) An analysis of the ability of the United States to ensure that any country with which the United States has a trade agreement described in section 2(3) complies with United States laws and regulations, including—
<br />
<br />(A) complying with the customs laws of the United States;
<br />
<br />(B) making timely payment of duties owed on goods imported into the United States;
<br />
<br />(C) meeting safety and inspection requirements with respect to food and other products
<br />imported into the United States; and
<br />
<br />(D) complying with prohibitions on the transshipment of goods that are ultimately imported into the United States.
<br />
<br />
<br />(7) A analysis of any privatization of public sector services in the United States or in any country that is a party to the an agreement listed in section 2(3), including any effect such privatization has on the access of consumers to essential services, such as health care, electricity, gas, water, telephone service, or other utilities.
<br />
<br />
<br />(8) <span style="font-size:180%;color:#3366ff;"><strong>An assessment of the impact of the intellectual property provisions of the trade agreements listed in section 2(3) on access to medicines <span style="font-size:130%;color:#000000;">[TO ENSURE THAT U.S. IPRs ARE GIVEN AWAY IN THE NAME OF ALLOWING FOREIGN GOVERNMENTS TO GUARANTEE UNIVERSAL ACCESS TO MEDICINES, CONSISTENT WITH THE UNITED NATIONS WORLD HEALTH ORGANIZATION INTERGOVERNMENTAL WORKING GROUP'S COMMITTEE ON INTELLECTUAL PROPERTY & HEALTH'S DRAFT AGENDA]</span></strong></span>. </p><p></p><p></p><p><span style="color:#3333ff;"><strong>H.R. 6180 adds the following:</strong></span>
<br />
<br />(7) An analysis of the price of pharmaceuticals and any effect that changes in the price of pharmaceuticals has had on the access of consumers to affordable medicines in the United States or any country that is a party to the agreements listed in Section 2(3).
<br /></p><p><strong>[TO ENSURE THAT U.S. IPRs ARE GIVEN AWAY IN THE NAME OF ALLOWING FOREIGN GOVERNMENTS TO GUARANTEE UNIVERSAL ACCESS TO MEDICINES, CONSISTENT WITH THE UNITED NATIONS WORLD HEALTH ORGANIZATION INTERGOVERNMENTAL WORKING GROUP'S COMMITTEE ON INTELLECTUAL PROPERTY & HEALTH'S DRAFT AGENDA].</strong></p><p>
<br /><span style="color:#3333ff;"><strong>H.R. 6180 adds another item of inquiry:</strong></span>
<br />
<br />(8) A list of any potential concerns posed by any country that is a party to the agreements listed in Section 2(3) to the national security of the United States, including—
<br />
<br />(A) any potential effect on the efforts of the United States to increase the energy self-sufficiency of the United States;
<br />
<br />(B) any increase in <em><strong>narco-traffick</strong></em>ing as a result of economic pressures on farmers in any such country to grow illegal crops; and
<br />
<br />(C) any increase in poverty in any such country as a result of the displacement of workers in sectors impacted by the agreement.
<br />
<br /><strong>[THIS SEEMS POINTED AT COLOMBIA]</strong></p><p>
<br />(9) An analysis of contracts for the procurement of goods or services by Federal or State government agencies from persons operating in any country that is a party to an agreement listed in section 2(3).
<br />
<br />
<br />(10) An assessment of the consequences of significant currency movements and a determination of whether the currency of a country that is a party to an agreement is misaligned deliberately to promote a competitive advantage in international trade for that country.
<br />
<br />
<br /><strong>3 (c) INFORMATION ON COUNTRIES THAT ARE PARTIES TO TRADE AGREEMENTS</strong>.—With respect to each country with respect to which the United States has a trade agreement in effect, the report required under subsection (a) shall include information regarding whether that country—
<br /></p><p><strong>[THERE ARE REFERENCES TO INT’L LABOR, ENVIRONMENTAL TREATY & HUMAN RIGHTS STANDARDS OF THE UNITED NATIONS, THAT MANY COUNTRIES DECLARE AS UNIVERSAL BUT DO NOT IMPLEMENT]</strong> </p><p></p><p>(1) has a democratic form of government;
<br />
<br />(2) <strong><span style="font-size:180%;color:#3366ff;">respects core labor standards, as defined by the Committee of Experts on the Application of Conventions and Recommendations and the Conference Committee on the Application of Standards of the <em><span style="font-size:130%;color:#000000;">[UNITED NATIONS]</span> International Labour Organization</em></span></strong>;
<br />
<br />(3) <strong>respects fundamental human rights</strong>, as determined by the Secretary of State in the annual country reports on human rights of the Department of State;
<br />
<br />(4) is designated as a country of particular concern with respect to religious freedom under section 402(b)(1) of the International Religious Freedom Act of 1998 (22 U.S.C. 6442(b)(1));
<br />
<br />(5) is on a list described in subparagraph (B) or (C) of section 110(b)(1) of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7107(b)(1)) (commonly known as tier 2 or tier 3 of the Trafficking in Persons List of the Department of State);
<br />
<br />(6) has taken effective measures to combat and prevent public and private corruption, including measures with respect to tax evasion and money laundering;
<br />
<br />(7) complies with the multilateral environmental agreements to which the country is a party;
<br />
<br />(8) has in force adequate labor and environmental laws and regulations, has devoted sufficient resources to implementing such laws and regulations, and has an adequate record of enforcement of such law and regulations;
<br />
<br />(9) <strong><span style="font-size:180%;">adequately</span></strong> <strong>[NOT STRONGLY]</strong> protects intellectual property rights;
<br />
<br />(10) provides for governmental transparency, due process of law, and respect for international agreements;
<br />
<br />(11) <strong>provides procedures to promote basic democratic rights, including the right to hold clear title to property</strong> and the right to a free press; and
<br />
<br />(12) poses potential concerns to the national security of the United States, including an assessment of transfer of technology, production, and services from one country to another.
<br /></p><p>
<br /></span></p><p><span style="font-size:130%;"><strong>SEC. 4. INCLUSION OF CERTAIN PROVISIONS IN TRADE AGREEMENTS.
<br /></p></strong></span><span style="font-size:130%;"><strong></strong>(a) IN GENERAL.—Notwithstanding section 151 of the Trade Act of 1974 (19 U.S.C. 2191) or any other provision of law, any bill implementing a trade agreement between the United States and another country that is introduced in Congress after the date of the enactment of this Act shall be subject to a point of order pursuant to subsection </span>
<br /><span style="font-size:130%;">(c) unless the trade agreement meets the requirements described in subsection (b).
<br />
<br />
<br />(b) REQUIREMENTS.—Each trade agreement negotiated between the United States and another country shall meet the following requirements:
<br />
<br />(1) <strong>LABOR STANDARDS</strong>.—The labor provisions shall—
<br />
<br />(A) be included in the text of the agreement;
<br />
<br />(B) require that a country that is party to the agreement adopt and maintain as part of its domestic law and regulations (including in any designated zone in that country), the core labor standards and effectively enforce laws directly related to those standards and to acceptable conditions of work with respect to minimum wages, hours of work, and occupational safety and health;
<br />
<br />(C) prohibit a country that is a party to the agreement from waiving or otherwise derogating from its laws and regulations relating to the core labor standards and acceptable conditions of work with respect to minimum wages, hours of work, and occupational safety and health;
<br />
<br />(D) require each country that is a party to the agreement to adopt into domestic law and enforce effectively core labor standards;
<br />
<br />(E) provide that failures to meet the labor standards required by the agreement shall be subject to dispute resolution and enforcement mechanisms and penalties that are at least as effective as the mechanisms and penalties that apply to the commercial provisions of the agreement;
<br />
<br />(F) strengthen the capacity of each country that is a party to the agreement to promote and enforce core labor standards; and
<br />
<br />(G) establish a commission of independent experts who shall receive, review, and adjudicate any complaint filed under the labor provisions of the trade agreement, and vest the commission with the authority to establish objective indicators to determine compliance with the obligations set forth in subparagraphs (B), (C), (D), (E), and (F).
<br /></span><span style="font-size:130%;"><strong>
<br /></strong></span>
<br /><span style="font-size:130%;">(2) <strong>ENVIRONMENTAL AND PUBLIC SAFETY STANDARDS</strong>.—The environmental provisions shall—
<br />
<br />(A) be included in the text of the agreement;
<br />
<br />(B) prohibit each country that is a party to the agreement from weakening, eliminating, or failing to enforce domestic environmental or other public safety standards to promote trade or attract investment;
<br />
<br />(C) require each such country to implement and enforce fully and effectively, including through domestic law, the country’s obligations under multilateral environmental agreements and provide for the enforcement of such obligations under the agreement;
<br />
<br />(D) prohibit the trade of products that are <strong>illegally harvested or extracted</strong> and the trade of <strong>goods derived from illegally harvested or extracted natural resources</strong>, including timber and timber products, fish, wildlife, and associated products, mineral resources, or other <em><strong>environmentally sensitive goods</strong></em>;
<br />
<br />(E) provide that the failure to meet the environmental standards required by the agreement be subject to dispute resolution and enforcement mechanisms and penalties that are at least as effective as the mechanisms and penalties that apply to the commercial provisions of the agreement; and
<br />
<br />(F) <strong>allow each country that is a party to the agreement to adopt and implement environmental, health, and safety standards, <span style="color:#3333ff;">recognizing the legitimate right of governments to protect the environment and public health and safety</span></strong>. </span>
<br /></strong></span>
<br />
<br />
<br /></strong></span></strong></span></strong></span></strong></span><p><strong><span style="font-size:130%;">[THIS REQUIREMENT WOULD EFFECTIVELY WEAKEN GATT ARTICLE XX & TBT AGREEMENT REQUIREMENTS, NAMELY THAT ENVIRONMENTAL REGULATIONS & STANDARDS CANNOT BE ARBITRARY OR DISCRIMINATORY IN DESIGN OR IMPLEMENTATION, THAT THEY CAN NOT BE MORE RESTRICTIVE THAN NECESSARY TO ACHIEVE A LEGITIMATE STATE OBJECTIVE, THAT REGULATIONS & STANDARDS SHOULD, WHEREVER POSSIBLE, BE BASED ON OBJECTIVE PERFORMANCE RATHER THAN SUBJECTIVE PROCESSING CRITERIA, and THAT SUCH REGULATIONS & STANDARDS SHOULD BE BASED ON RELEVANT INTERNATIONAL STANDARDS WHEREVER POSSIBLE.]</span></strong></p>
<br /><span style="font-size:130%;"></span>
<br /><span style="font-size:130%;">(3) <strong>FOOD AND PRODUCT HEALTH AND SAFETY STANDARDS</strong>.—If the agreement contains health and safety standards for food and other products, the agreement shall—
<br />
<br />(A) establish that food, feed, food ingredients, and other related food products may be imported into the United States from a country that is a party to the agreement only if such products meet or exceed United States standards with respect to food safety, pesticides, inspections, packaging, and labeling;
<br />
<br />(B) establish that nonfood products may be imported into the United States from a country that is a party to the agreement only if such products meet or exceed United States health and safety standards with respect to health and safety, inspection, packaging and labeling;
<br />
<br />(C) <strong>allow each country that is a party to the agreement to impose standards <span style="font-size:180%;">designed</span> to protect public health and safety</strong> <span style="color:#3333ff;"><strong><em>unless</em></strong> <strong><em>it can be clearly demonstrated that such standards do not protect the public health or safety</em></strong></span>;
<br />
<br /></span><span style="font-size:130%;"></span>
<br /><span style="font-size:130%;"><strong>[THIS REQUIREMENT WOULD EFFECTIVELY WEAKEN GATT ARTICLE XX & WTO SPS AGREEMENT REQUIREMENTS, NAMELY THAT HEALTH & SAFTEY REGULATIONS & STANDARDS CANNOT BE ARBITRARY OR DISCRIMINATORY IN DESIGN OR IMPLEMENTATION, ARE BASED ON 'SCIENTIFIC RISK ASSESSMENT' AND ARE ECONOMICALLY COST-EFFECTIVE, and ARE NOT MORE TRADE RESTRICTIVE THAN NECESSARY TO FULFILL A LEGITIMATE STATE OBJECTIVE ("not </strong><strong>more trade-restrictive than required to achieve their appropriate level of…protection, taking into account technical and economic feasibility.")]</strong>
<br />
<br />
<br />(D) authorize the Commissioner of the Food and Drug Administration (in this Act, referred to as the ‘‘Commissioner’’) and the Consumer Product Safety Commission (in this Act, referred to as the ‘‘Commission’’) to assess the regulatory system of each country that is a party to the agreement to determine whether the system provides the same or better protection of health and safety for food and other products as provided under the regulatory system of the United States;
<br />
<br />(E) if the Commissioner or the Commission determines that the regulatory system of
<br />such a country does not provide the same or better protection of health and safety for food and other products as provided under the regulatory system of the United States, prohibit the importation into the United States of food and other products from that country;
<br />
<br />(F) provide a process by which producers from countries whose standards are not found by the Commissioner or the Commission to meet United States standards may have their facilities inspected and certified in order to allow products from approved facilities to be imported into the United States;
<br />
<br />(G) if harmonization of food or product health or safety standards is necessary to facilitate trade, such <strong>harmonization shall be based on standards that are no less stringent than United States standards</strong>; and
<br />
<br />
<br /><strong>[THIS IS NOT NECESSARILY A BAD POLICY IF U.S. STANDARDS EITHER CAN BE ESTABLISHED AS ‘RELEVANT INTERNATIONAL STANDARDS’ AT CODEX/FAO or THE U.S. COULD OTHERWISE JUSTIFY THROUGH RISK ASSESSMENT & ECONOMIC COST-BENEFIT ANALYSIS THAT ITS MORE STRINGENT STANDARDS ARE SCIENTIFICALLY & ECONOMICALLY JUSTIFIED – i.e., NO PRECAUTIONARY PRINCIPLE].</strong>
<br />
<br />(H) establish mandatory end-use labeling of imports of milk protein concentrates.
<br /><strong></strong>
<br /></span><strong>
<br /></strong><span style="font-size:130%;">(4) <strong>SERVICES PROVISIONS</strong>.—If the agreement contains provisions related to the provision of services, such provisions shall—
<br />
<br />(A) preserve the right of Federal, State, and local governments to maintain essential public services and to regulate, for the benefit of the public, services provided consumers in the United States by <strong>establishing a general exception to the national treatment commitments in the agreement that allows distinctions between United States and foreign service providers</strong> and qualifications or limitations on the provision of services;</span>
<br /></span>
<br />
<br /><span style="font-size:130%;"><strong>[THIS PROVISION WILL OPEN UP THE DOOR TO FOREIGN GOVERNMENTS IMPOSING ARBITRARY and DISCRIMINATORY RESTRICTIVE TRADE BARRIERS THAT DENY U.S. SERVICE PROVIDERS ACCESS TO FOREIGN MARKETS.]</strong>
<br />
<br />
<br />(B)(i) require each country that is a party to the agreement to <strong><em>establish a list of each service sector that will be subject to the obligations of the country</em></strong> under the agreement; and
<br />
<br />(ii) <strong><em>apply the agreement only to the service sectors that are on the list</em></strong> described in clause 15 (i);
<br />
<br />(C) <strong>establish a general exception to market access obligations</strong> <strong>that allows a country that is a party to the agreement to maintain or establish a ban on services the country considers harmful</strong>, if the ban is applied to domestic and foreign services and service providers alike;
<br />
<br />
<br /><strong>[THIS PROVISION WILL ENCOURAGE FOREIGN GOVERNMENTS TO FUNNEL ALL SECTORS THEY WISH TO PROTECT UNDER THE 'HARMFUL' GENERAL EXCEPTION, THUS SUBJECTING U.S. SERVICES PROVIDERS TO ANOTHER NEW BROAD MARKET ACCESS BARRIER.]</strong>
<br />
<br />
<br />(D) require service providers in any country that is a party to the agreement that provide services to consumers in the United States to comply with United States privacy, transparency, professional qualification, and consumer access laws and regulations;
<br />
<br />(E) require that services provided to consumers in the United States that are subject to privacy laws and regulations in the United States may only be provided by service providers in other countries that provide privacy protections and protections for confidential information that are equal to or exceed the protections provided by United States privacy laws and regulations;
<br />
<br />
<br /><strong>[ SUBPARAGRAPHS (D) & (E) APPEAR VERY SIMILAR TO THE PRIVACY RULES IN THE EUROPEAN UNION WHICH ARGUABLY GO OVERBOARD IN CERTAIN CASES].</strong>
<br />
<br />
<br />(F) require that financial and medical services be subject to United States privacy laws and be performed only in countries that provide protections for confidential information that are equal to or exceed the protections for such information under United States privacy laws;
<br />
<br />(G) not require the privatization of public services in any country that is a party to the agreement, including services related to national security, social security, health, public safety, education, water, sanitation, other utilities, ports, or transportation; and
<br />
<br />(H) provide for local governments to operate without being subject to market access obligations under the agreement.
<br /></span><strong>
<br />
<br /></strong><strong></strong>
<br /><span style="font-size:130%;">(5) <strong>INVESTMENT PROVISIONS</strong>.—If the agreement contains provisions related to investment, such provisions <strong>shall</strong>—
<br />
<br />(A) preserve the ability of each country that is a party to the agreement to regulate foreign investment in a manner consistent with the needs and priorities of the country;
<br />
<br />(B) allow each such country to place reasonable restrictions on speculative capital to reduce global financial instability and trade volatility;
<br />
<br />(C) <strong><em><span style="font-size:180%;color:#3333ff;">not be subject to an investor-state dispute settlement mechanism under the agreement</span></em></strong>;
<br /></span>
<br />
<br />
<br /><span style="font-size:130%;">(D) ensure that foreign investors operating in the United States have rights no greater than the rights provided to domestic investors by the Constitution of the United States;
<br />
<br />(E) <strong><em><span style="color:#3333ff;">provide for</span> <span style="color:#3333ff;">government-to-government dispute resolution</span> <span style="color:#3333ff;">relating to a government action that destroys all value of the real property of a foreign investor rather than dispute resolution between the government that took the action and the foreign investor</span></em></strong><span style="color:#3333ff;">;</span>
<br /></span>
<br />
<br /><span style="font-size:130%;"><strong>[SUBPARAGRAPHS (C) and (E) OF THIS PROVISION WOULD EFFECTIVELY REMOVE NAFTA CHAPTER 11, WHICH PROVIDES INVESTORS WITH A PRIVATE CAUSE OF ACTION AGAINST GOVERNMENTS FOR DIRECTLY OR INDIRECTLY ILLEGALLY EXPROPRIATING THEIR INVESTMENT ASSETS & INCOME.]</strong>
<br />
<br />
<br />(F) define the term <strong>‘‘investment’’</strong> to mean <em><strong>not more than</strong></em> a commitment of capital or acquisition of real property and not to include assumption of risk or expectation of gain or profit;
<br /></span>
<br />
<br /></span><span style="font-size:130%;"><strong>[THIS DEFINITION WOULD SUBSTANTIALLY LIMIT THE BROAD DEFINITION OF 'INVESTMENT' CONTAINED WITHIN NAFTA ARTICLE 1139 & OTHER U.S. BILATERAL INVESTMENT TREATIES, WHICH INCLUDES "AN ENTERPRISE, AN EQUITY SECURITY OF AN ENTERPRISE, A DEBT SECURITY OF AN ENTERPRISE, A LOAN TO AN ENTERPRISE, AN INCOME OR PROFIT SHARE INTEREST IN AN ENTERPRISE, AN INTEREST IN ENTERPRISE ASSETS UPON DISSOLUTION, REAL ESTATE OR OTHER PROPERTY, TANGIBLE & INTANGIBLE, ACQUIRED FOR BUSINESS PURPOSES OR SPECULATION, FOR THE PURPOSE OF DERIVING AN ECONOMIC BENEFIT, AND COMMITMENT OF CAPITAL OR OTHER RESOURCES TO AN ECONOMIC ACTIVITY IN A TERRITORY.] </strong>
<br />
<br />
<br />(G) define the term ‘‘investor’’ to mean only a person who makes a commitment or acquisition described in subparagraph (F);
<br />
<br />
<br /><strong>[THIS DEFINITION OF 'INVESTOR', AS WELL, LIMITS THE PARTIES WHO MAY CLAIM THE PROTECTIONS AFFORDED BY U.S. INVESTMENT TREATIES. NAFTA ARTICLE 1139 DEFINES 'INVESTOR' AS "A PARTY OR STATE ENTERPRISE THEREOF, OR A NATIONAL OR AN ENTERPRISE OF SUCH PARTY, THAT SEEKS TO MAKE, IS MAKING OR HAS MADE AN INVESTMENT."]</strong>
<br />
<br />
<br />(H) define the term <strong>‘‘direct expropriation’’</strong> as government action that does not merely diminish the value of property but <strong><em>destroys all</em></strong> <em><strong>value </strong></em>of the property <strong><em>permanently</em></strong>; </span>
<br />
<br />
<br /><strong><span style="font-size:130%;">[THE SPONSORS OF THE OBAMA-BROWN-MICHAUD BILL CONSPICUOUSLY OMITTED ANY REFERENCE TO 'INDIRECT / CREEPING EXPROPRIATION' VIA REGULATION - i.e., 'REGULATORY TAKINGS', WHICH AFFECTS FOR MORE FOREIGN & U.S. INVESTORS & PROPERTY OWNERS THAT DO 'DIRECT' EXPROPRIATIONS. THIS IS CONTRARY TO NAFTA CHAPTER 11 AND THE EXPROPRIATION PROVISIONS OF ALL U.S. BILATERAL TRADE AGREEMENTS EXECUTED SINCE. THIS SIGNIFIES HOW THE DEMOCRATS ARE IN FAVOR OF GOVERNMENTAL 'TAKINGS' OF PRIVATE PROPERTY FOR AN OSTENSIBLE 'PUBLIC USE' WITHOUT BEING REQUIRED TO MAKE PAYMENT, AS CAN BE GLEANED FROM THE U.S. SUPREME COURT DECISION IN THE <em>KELO</em> EMINENT DOMAIN CASE, AND FROM THE CONGRESSIONAL MAJORITY'S SUPPORT FOR BRAZIL'S & THAILAND'S 'TAKING' OF (ISSUANCE OF COMPULSORY LICENSES AGAINST) PRIVATE U.S. PATENTS TO GENEROUS FUND BRAZILIAN & THAI GOVERNMENTAL PUBLIC HEALTH PROGRAMS, WITHOUT PAYING FULL VALUE FOR SUCH PROPERTY.]</span></strong>
<br /></span><span style="font-size:130%;">
<br />
<br />(I) <strong><em><span style="color:#3333ff;">not provide a dispute resolution system under the agreement for the enforcement of contracts between foreign investors and the government</span></em></strong> of a country that is a party to the agreement relating to natural resources, public works, or other activities under government control; and
<br />
<br />
<br /><strong>[THIS SUBPARAGRAPH ESSENTIALLY OFFERS GOVERNMENTS THE OPPORTUNITY TO VOID GOVERNMENTAL CONTRACTS, OR AT LEAST SUBJECTS THEM TO UNILATERAL GOVERNMENTAL OVERRIDE </strong></span>
<br /><span style="font-size:130%;"><strong>/NATIONALIZATION / 'TAKINGS' WITHOUT INVESTOR RECOURSE. WHAT IS TO DISTINGUISH UNILATERAL U.S. & VENEZUELAN GOVERNMENTAL ACTIONS, IF SUCH A PROVISION WERE ENACTED?? ]</strong>
<br />
<br />
<br />(J) define the standard of minimum treatment <strong>to provide no greater legal rights than United States citizens possess under the due process clause of section 1 of the 14th amendment to the Constitution of the United States</strong>.
<br />
<br />
<br /><strong>[IF MINIMUM TREATMENT IS <em>'NO GREATER THAN</em> A UNITED STATES CITIZEN'S RIGHT TO PROCEDURAL DUE PROCESS OF LAW & EQUAL PROTECTION UNDER THE LAW, CONSISTENT WITH THE 14TH AMENDMENT TO THE BILL OF RIGHTS ACCOMPANYING THE U.S. CONSTITUTION, ARE NOT THE DEMOCRATS ESSENTIALLY DENYING FOREIGN AS WELL AS U.S. INVESTORS THE SUBSTANTIVE DUE PROCESS PROTECTIONS AGAINST ILLEGAL 'TAKINGS' OF PRIVATE PROPERTY WITHIN & OUTSIDE THE U.S., WITHOUT PAYMENT OF 'DUE COMPENSATION', CONSISTENT WITH THE 5TH AMENDMENT TO THE BILL OF RIGHTS?]</strong>
<br />
<br />
<br />(6) <strong>PROCUREMENT STANDARDS</strong>.—If the agreement contains government procurement provisions, such provisions shall—
<br />
<br />(A) require each country that is a party to the agreement to establish a list of industry sectors, goods, or services that will be subject to the national treatment and other obligations of the country under the agreement;
<br />
<br />(B) with respect to the United States, <strong><em>apply only to State and local governments that specifically agree to the agreement and only to the industry sectors, goods, or services specifically identified by the State government</em></strong> and not apply to local governments; and
<br />
<br /></span>
<br />
<br /><span style="font-size:130%;"></span><span style="font-size:130%;"><p><strong>[THIS LANGUAGE HAS 'FEDERALISM'/ 10TH AMENDMENT (BILL OF RIGHTS) IMPLICATIONS INSOFAR AS STATES ARE PERMITTED TO VETO/OPT-OUT OF, & PERHAPS EVEN NEGOTIATE THEIR OWN FOREIGN COMMERCE AGREEMENTS & /OR UNILATERALLY CONDUCT</strong><strong>/AFFECT FOREIGN AFFAIRS WHICH ART. I, SEC. 8, CL. 3 & SEC. 10; and ART. II, SEC 2., CLS. 1 & 2, OF THE U.S. CONSTITUTION EMPOWER ONLY THE PRESIDENT & CONGRESS TO DO.]</strong></p>
<br />(C) include only technical specifications for goods or services, or supplier qualifications or other conditions for receiving government contracts that do not undermine—
<br />
<br />(i) prevailing wage policies;
<br />
<br />(ii) <strong><em>recycled content policies</em></strong>;
<br />
<br />(iii) <strong><em>sustainable harvest policies</em></strong>;
<br />
<br />(iv) <strong><em>renewable energy policies</em></strong>;
<br />
<br />(v) <strong><em>human rights</em></strong>; or
<br />
<br />(vi) labor project agreements.
<br />
<br />
<br /><strong>[HOW ARE THESE POLICIES TO BE DETERMINED - BY WHAT SET OF INTERNATIONAL STANDARDS?? UNITED NATIONS AGENDA 21 STANDARDS, WHICH TREAT ECONOMIC MARKET ACTIVITIES AS CRIMINAL ACTIVITIES??]</strong>
<br />
<br />
<br />(7) <strong>INTELLECTUAL PROPERTY REQUIREMENTS</strong>.—If the agreement contains provisions related to the protection of intellectual property rights, such provisions shall—
<br />
<br />(A) promote <strong><em><span style="color:#3333ff;">adequate</span></em></strong> <span style="color:#3333ff;"><em><strong>and effective</strong></em></span> <strong>[NOT STRONG]</strong> protection of intellectual property rights;
<br />
<br />(B) include only <strong><em>terms relating to patents that do not, overtly or in application, limit the flexibilities and rights established in the Declaration on the TRIPS Agreement and Public Health</em></strong>, adopted by the World Trade Organization at the Fourth Ministerial Conference at Doha, Qatar on November 14, 2001; and
<br />
<br />(C) <strong><em>require that any provisions relating to the patenting of traditional knowledge be consistent with the Convention on Biological Diversity</em></strong>, concluded at Rio de Janeiro June 5, 1992.
<br />
<br />
<br /><strong>[THE OBAMA-BROWN-MICHAUD BILL'S INTELLECTUAL PROPERTY PROVISIONS WOULD ESSENTIALLY LIMIT THE AMOUNT OF COMPENSATION OWED & PAID BY A FOREIGN GOVERNMENT INVOKING THE DOHA DECLARATION ON PUBLIC HEALTH, IN THE EVENT OF THAT GOVERNMENT'S 'TAKING' OF U.S. PRIVATELY HELD PATENTS/TRADE SECRETS, TO WHAT IS SUBJECTIVELY CONSIDERED 'ADEQUATE' COMPENSATION RATHER THAN FULL, COMPLETE AND/OR FAIR MARKET VALUE-BASED COMPENSATION, AS SET FORTH IN THE WTO TRIPS & U.S. BILATERAL TRADE & INVESTMENT AGREEMENTS, CONSISTENT WITH THE PROTECTIONS AFFORDED BY THE 5TH AMENDMENT TO THE BILL OF RIGHTS; THUS IT WOULD EFFECTIVELY DENY U.S. OWNERS THEIR CONSTITUTIONAL RIGHT TO PROTECTION OF THEIR PRIVATE PROPERTY. THE BILL WOULD ALSO SUBJECT THE TREATMENT OF U.S.-OWNED PRIVATE PROPERTY TO THE MORE RESTRICTIVE RULES OF A UNITED NATIONS MULTILATERAL ENVIRONMENTAL TREATY TO WHICH THE U.S. IS NOT YET A PARTY.]</strong>
<br />
<br />
<br /><span style="color:#3333ff;"><strong>H.R. 6180 adds subparagraph D:</strong></span>
<br />
<br />(D) ensure that the access of the public to essential medicines and to technologies critical to preventing climate change is not obstructed by any provision of the agreement relating to the protection of intellectual property rights.
<br />
<br />
<br /><strong>[THIS ADDITION EFFECTIVELY IMPLEMENTS THE EXTREMIST ANTI-MARKET ENVIRONMENTAL MANDATES CALLED FOR BY THE UNITED NATIONS AGENDA 21 & THE EXTREMIST ANTI-INTELLECTUAL PROPERTY HEALTHCARE POLICIES CALLED FOR BY THE DOHA DECLARATION ON HEALTH. COLLECTIVELY, <span style="color:#000099;">THESE EUROPEAN UNION</span>/<span style="color:#3366ff;">UNITED NATIONS</span>-INSPIRED INITIATIVES DEMAND LESS THAN FAIR MARKET VALUE DEVELOPED WORLD TECHNOLOGY TRANSFERS TO THE DEVELOPING WORLD VIA THE SUSPENSION OF WTO TRIPS INTELLECTUAL PROPERTY RIGHT PROTECTIONS].</strong>
<br />
<br />
<br />(8) <strong>AGRICULTURAL STANDARDS</strong>.—If the agreement contains provisions related to agriculture, such provisions shall—
<br />
<br />(A) protect the right of each such country to establish policies with respect to food and agriculture that require farmers to receive fair remuneration for management and labor that occurs on farms and that allow for inventory management and strategic food and renewable energy reserves, to the extent that such policies do not contribute to or allow the dumping of agricultural commodities in world markets at prices lower than the cost of production;
<br />
<br />(B) protect the right of each country that is a party to the agreement to prevent dumping of agricultural commodities at below the cost of production through border regulations or other mechanisms and policies;
<br />
<br />(C) ensure that all laws relating to antitrust and anti-competitive business practices remain fully in effect, and that their enforceability is neither pre-empted nor compromised in any manner;
<br />
<br />(D) ensure adequate supplies of safe food for consumers;
<br />
<br />(E) protect the right of each country that is a party to the agreement to encourage conservation through the use of best practices with respect to the management and production of crops; and
<br />
<br />(F) ensure fair treatment of farm laborers in each such country.
<br />
<br />
<br />(9) <strong>TRADE REMEDIES AND SAFEGUARDS</strong>.—If the agreement contains trade remedy provisions, such provisions shall—
<br />
<br />(A) preserve fully the ability of the United States to enforce <strong><em>its </em></strong>trade laws, including anti-dumping and countervailing duty laws and safe guard laws;
<br />
<br />
<br /><strong>[CERTAIN U.S. ANTI-DUMPING & COUNTERVAILING DUTY RULES ARE SUPERCEDED BY THE WTO AGREEMENTS ON ANTI-DUMPING and ON SUBSIDIES & COUNTERVAILING MEASURES.]</strong>
<br />
<br />
<br />(B) ensure the continued effectiveness of domestic and international prohibitions on unfair trade, especially prohibitions on dumping and subsidies, and domestic and international safeguard provisions;
<br />
<br />(C) allow the United States to <strong><em>maintain adequate safeguards</em></strong> to ensure that surges of imported goods do not result in economic burdens on workers, firms, or farmers in the United States, including providing that such safeguards go into effect automatically based on certain criteria; and
<br />
<br />(D) if the currency of a country that is a party to the agreement is deliberately misaligned, establish safeguard remedies that apply automatically to offset substantial and sustained currency movements.
<br />
<br />
<br />(10)<strong> RULES OF ORIGIN PROVISIONS</strong>.—If the agreement contains provisions related to rules of origin, such provisions shall—
<br />
<br />(A) ensure, to the fullest extent practicable, that goods receiving preferential treatment under the agreement are produced using inputs from a country that is a party to the agreement; and
<br />
<br />(B) ensure the effective enforcement of such provisions.
<br />
<br />
<br />(11) <strong>DISPUTE RESOLUTION AND ENFORCEMENT PROVISIONS</strong>.—If the agreement contains provisions related to dispute resolution, such provisions shall—
<br />
<br />(A) <strong><em>incorporate the basic due process guarantees protected by the Constitution of the United States, including access to documents, open hearings, and conflict of interest rules for judges</em></strong>;
<br />
<br />
<br /><strong>[THIS IS PERHAPS ONE OF THE ONLY BENEFICIAL PROVISIONS OF THIS BILL].</strong>
<br />
<br />
<br />(B) require that any dispute settlement panel, including an appellate panel, dealing with intellectual property rights or environmental, health, labor, and other public law issues include panelists with expertise in such issues;
<br />
<br />(C) <strong><em>provide that dispute resolution proceedings are open to the public and provide timely public access to information regarding enforcement, disputes, and ongoing negotiations related to disputes</em></strong>.
<br />
<br />
<br /><strong><span style="font-size:180%;"><span style="font-size:130%;">[THIS MAY RESULT IN A 'PUBLIC CIRCUS' ATMOSPHERE. PERHAPS, IT WOULD BE BETTER TO AGREE ON RELEASE OF THE INTERIM DECISION MUCH EARLIER THAN AT PRESENT, COUPLED WITH A PERIOD FOR PUBLIC INTERNET COMMENTS. ALTERNATIVELY, THERE COULD BE A 'BROADENING' OF THE 'STANDING' REQUIREMENT TO ENTERTAIN MORE AMICUS CURIAE BRIEFS.]</span> </span></strong>
<br />
<br />
<br /><p><strong><span style="font-size:100%;"></span></strong></p><span style="color:#3333ff;"><strong>H.R. 6180 imposes an additional requirement:
<br /></strong></span>
<br />... (C) require an expedited process for all dispute settlement panels and processes related to <strong><span style="color:#3333ff;">violations of an agreement’s labor and environmental obligations, recognizing that environmental and labor rights and the health, safety</span></strong>, and freedom <strong><span style="color:#3333ff;">of people and possibly irreversible damage to the physical environment<em> are fundamentally different than property rights</em></span></strong> and thus require establishment of more expeditious timelines, together with the necessary resources for oversight and enforcement.
<br />
<br />
<br /><strong><span style="font-size:180%;">[THIS PROVISION WOULD ESSENTIALLY RELEGATE PRIVATE PROPERTY RIGHTS TO A LESSER STATUS THAN GOVERNMENTAL ENVIROMENT, HEALTH & SAFETY OBJECTIVES, & THUS SUBJUGATE PRIVATE PROPERTY RIGHTS TO ARBITRARY & CAPRICIOUS GOVERNMENTAL EXERCISE OF ITS POLICE POWERS. THIS COULD RESULT IN INCREASED ‘TAKINGS’ OF PRIVATE PROPERTY WITHOUT PAYMENT OF DUE COMPENSATION.] </span></strong>
<br />
<br /><span style="font-size:180%;">
<br /></span><span style="color:#3333ff;"><strong>S. 3083
<br /></strong></span>
<br />(12) <strong>TECHNICAL ASSISTANCE</strong>.—If the agreement contains technical assistance provisions, such provisions shall—
<br />
<br />(A) be designed to raise standards in developing countries by providing assistance that ensures respect for diversity of development paths;
<br />
<br />(B) be designed to empower civil society and democratic governments to create sustainable, vibrant economies and respect basic rights;
<br />
<br />(C) provide that technical assistance shall not supplant economic assistance; and
<br />
<br />(D) promote the exportation of goods produced with methods that support sustainable natural resources.
<br />
<br />
<br /><p><span style="color:#3333ff;"><strong>H.R. 6180 adds:
<br /></strong></span>
<br />(D) not promote the exportation of goods produced with the exploitation of labor or <strong><em>unsustainable environmental practises</em></strong>.
<br /></p><p>
<br /><strong>[IT IS INTERESTING HOW THE WORD ‘PRACTICES’ IS SPELLED AS ‘PRACTISES’, AN UK/ ENGLISH/ EUROPEAN SPELLING. HOW INVOLVED HAVE EUROPEAN GOVERNMENTS BEEN IN HELPING TO SHAPE THE FORMULATION AND/OR DRAFTING OF THESE BILLS?? (See p. 25, H.R. 6180). CURIOUSLY, NEITHER THE SENATE NOR HOUSE BILLS DEFINE THE TERMS ‘SUSTAINABLE NATURAL RESOURCES’ AND/OR ‘UNSUSTAINABLE ENVIRONMENTAL PRACTICES’. ARE THEY OBLIQUELY SUBJECTING U.S. LAW & PRACTICES TO THE UNITED NATIONS ENVIRONMENT-CENTRIC DEFINITION OF SUSTAINABLE DEVELOPMENT USED BY THE EUROPEAN UNION AS A FALSE PRETENSE FOR DISGUISED REGULATORY PROTECTIONISM???]</strong>
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<br />(13) <strong>EXCEPTIONS FOR NATIONAL SECURITY AND OTHER REASONS</strong>.—Each agreement shall—
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<br />(A) include <strong>an essential security exception</strong> that permits a country that is a party to the agreement to apply measures that the country considers necessary for the maintenance or restoration of international peace or security, or the protection of its own essential security interests, including regarding infrastructure, services, manufacturing, and other sectors; and
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<br />(B) include in its list of general exceptions the following language: ‘‘Notwithstanding any other provision of this agreement, <strong><em>a provision of law that is nondiscriminatory on its face and relates to domestic health, consumer safety, the environment, labor rights, worker health and safety, economic equity, consumer access, the provision of goods or services, or investment, shall not be subject to challenge under the dispute resolution mechanism established under this agreement, unless the primary purpose of the law is to discriminate with respect to market access</em></strong>.’’ </p><p></p><strong>[*THESE PROVISIONS, ESPECIALLY THE 'CATCH-ALL'LAST PROVISION, WOULD EFFECTIVELY EVISCERATE THE REQUIREMENTS CONTAINED IN GATT ARTICLE XX & THE WTO SPS/TBT AGREEMENTS INTENDED TO PREVENT THE USE OF REGULATIONS AND STANDARDS AS DISGUISED FORMS OF TRADE PROTECTIONISM - NON-TARIFF BARRIERS.]</strong>
<br />
<br />
<br /><strong><span style="color:#3333ff;">H.R. 6180 ups the ante with the following additions:
<br /></span></strong>
<br />(B) explicitly state that if a country invokes the essential security exception in a dispute settlement proceeding, the dispute settlement body hearing the matter shall find that the exception applies;
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<br />
<br /><strong>[THIS WOULD ESTABLISH AN IRREBUTABLE PRESUMPTION THAT U.S. & FOREIGN GOVERNMENTAL NATIONAL SECURITY CONCERNS ABSOLUTELY, AND IN ALL INSTANCES, OVERRIDE TRADE & PRIVATE PROPERTY RULES, WITHOUT PROOF OF MORE, AS REQUIRED BY GATT ARTICLE XX.]</strong>
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<br />(14) <strong>FEDERALISM</strong>.—The agreement <strong><em>may only require a State government to comply with procurement, investment, or services provisions contained in the agreement if the State government has been consulted in full and has given explicit consent to be bound</em></strong> by such provisions.
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<br />
<br /><strong>[THIS PROVISION'S VETO/OPT-OUT/ TREATY NEGOTIATION CLAUSE ARGUABLY VIOLATES ART. I, SEC. 8, CL. 3 & SEC. 10; and ART. II, SEC 2., CLS. 1 & 2, OF THE U.S. CONSTITUTION, WHICH EMPOWERS ONLY THE PRESIDENT & CONGRESS TO CONDUCT FOREIGN COMMERCE & FOREIGN POLICY.]</strong>
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<br />(c) <span style="color:#3333ff;"><strong>POINT OF ORDER IN SENATE</strong></span>.—The Senate shall cease consideration of a bill to implement a trade agreement if—
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<br />(1) a point of order is made <strong><em>by any Senator</em></strong> against the bill based on the noncompliance of the trade agreement with the requirements of subsection (b); <em><strong>and</strong></em>
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<br />(2) <strong><em>the point of order is sustained by the Presiding Officer</em></strong>.
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<br />
<br /><strong>[THIS EFFECTIVELY ELEVATES A FOREIGN GOVERNMENT'S NONCOMPLIANCE WITH A TRADE AGREEMENT TO THE LEVEL OF A VIOLATED RULE OF THE SENATE, WHICH MAKES LITTLE SENSE. See: "point of order - A claim made by a Senator from the floor that a rule of the Senate is being violated. If the Chair sustains the point of order, the action in violation of the rule is not permitted", at: <a href="http://www.senate.gov/reference/glossary_term/point_of_order.htm">http://www.senate.gov/reference/glossary_term/point_of_order.htm</a> ; See also: "Standing Rules of the Senate RULE XXVIII
<br />CONFERENCE COMMITTEES; REPORTS; OPEN MEETINGS", at: <a href="http://rules.senate.gov/senaterules/rule28.php">http://rules.senate.gov/senaterules/rule28.php</a> ].</strong>
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<br />(d) WAIVERS AND APPEALS.—
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<br />(1) WAIVERS.—Before the Presiding Officer rules on a point of order described in subsection (c), any Senator may move to waive the point of order and the motion to waive shall not be subject to amendment. <strong><em>A point of order described in subsection (c) is waived only by the affirmative vote of 60 Members of the Senate</em></strong>, duly chosen and sworn.
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<br />
<br />(2) APPEALS.—After the Presiding Officer rules on a point of order described in subsection (c), any Senator may appeal the ruling of the Presiding Officer on the point of order as it applies to some or all of the provisions on which the Presiding Officer ruled. A ruling of the Presiding Officer on a point of order described in subsection (c) is sustained unless 60 Members of the Senate, duly chosen and sworn, vote not to sustain the ruling.
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<br />(3) DEBATE.—Debate on the motion to waive under paragraph (1) or on an appeal of the ruling of the Presiding Officer under paragraph (2) shall be limited to 1 hour. The time shall be equally divided between, and controlled by, the majority leader and the minority leader of the Senate, or their designees.
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<br /><strong>SEC. 5. RENEGOTIATION PLAN FOR EXISTING TRADE AGREEMENTS</strong>.
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<br />The President shall submit to Congress a plan to bring trade agreements in effect on the date of the enactment of this Act into compliance with the requirements of section 4(b) not later than 90 days before the earlier of the day on which the President—
<br />
<br />(1) initiates negotiations with a foreign country with respect to a new trade agreement; or
<br />
<br />(2) submits a bill to Congress to implement a trade agreement.
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<br />
<br /><strong>SEC. 6. ESTABLISHMENT OF CONGRESSIONAL TRADE AGREEMENT REVIEW COMMITTEE</strong>.
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<br />(a) ESTABLISHMENT.—There is established a Congressional Trade Agreement Review Committee.
<br />
<br />(b) FUNCTIONS.—The Committee—
<br />
<br />(1) shall receive the report of the Comptroller General of the United States required under section 3;
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<br />(2) shall review the plan for bringing trade agreements into compliance with the requirements of 6 section 4(b); and
<br />
<br />(3) may, not later than 60 days after receiving the plan described in paragraph (2), add items for renegotiation to the plan, reject recommendations in the plan, or otherwise amend the plan by a vote of 2⁄3 of the members of the Committee.
<br />
<br />(c) <strong>APPOINTMENT AND MEMBERSHIP</strong>.—The Committee shall be composed of the chairman and ranking members of the following:
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<br />(1) The Committee on Agriculture, Nutrition, and Forestry of the Senate.
<br />
<br />(2) The Committee on Banking, Housing, and Urban Affairs of the Senate.
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<br />(3) The Committee on Commerce, Science, and Transportation of the Senate.
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<br />(4) The Committee on Energy and Natural Resources of the Senate.
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<br />(5) The Committee on Environment and Public Works of the Senate.
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<br />(6) The Committee on Finance of the Senate.
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<br />(7) The Committee on Foreign Relations of the Senate.
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<br />(8) The Committee on Health, Education, Labor, and Pensions of the Senate.
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<br />(9) The Committee on the Judiciary of the Senate.
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<br />(10) The Committee on Small Business and Entrepreneurship of the Senate.
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<br />(11) The Committee on Agriculture of the House of Representatives.
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<br />(12) The Committee on Education and Labor of the House of Representatives.
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<br />(13) The Committee on Energy and Commerce of the House of Representatives.
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<br />(14) The Committee on Financial Services of the House of Representatives.
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<br />(15) The Committee on Foreign Affairs of the House of Representatives.
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<br />(16) The Committee on the Judiciary of the House of Representatives.
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<br />(17) The Committee on Natural Resources of the House of Representatives.
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<br />(18) The Committee on Small Business of the House of Representatives.
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<br />(19) The Committee on Transportation and Infrastructure of the House of Representatives.
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<br />(20) The Committee on Ways and Means of the House of Representatives.
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<br />
<br /><strong>[IT IS NICE TO SEE HOW CONGRESSIONAL COMMITTEES POSSESSING OVERSIGHT JURISDICTION WISH TO PUBLICLY INVESTIGATE CURRENT & PROPOSED U.S. TRADE AGREEMENTS; WHY DO THESE SAME COMMITTEES RESIST CALLING FOR OPEN PUBLIC HEARINGS TO INVESTIGATE THE COMPLEX ENVIRONMENTAL REGULATORY PROVISIONS OF <em><span style="color:#3333ff;">THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA</span></em> WHICH THE CONGRESSIONAL MAJORITY SEEK THE U.S. ADMINISTRATION TO RATIFY???]</strong>
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<br />
<br /><strong>SEC. 7. SENSE OF CONGRESS REGARDING READINESS CRITERIA AND IMPROVING THE PROCESS FOR UNITED STATES TRADE NEGOTIATIONS.
<br /></strong>
<br />It is the sense of Congress that if Congress considers legislation to provide for special procedures for the consideration of bills to implement trade agreements, that legislation shall include—
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<br />(1) criteria for the President to use in determining whether a country—
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<br />(A) is able to meet its obligations under a trade agreement;
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<br />(B) meets the requirements described in section 3(c); and
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<br />(C) is an appropriate country with which to enter into a trade agreement;
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<br />
<br />(2) a process by which the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives review the determination of the President described in paragraph (1) to verify that the country meets the criteria;
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<br />(3) requirements for consultation with Congress during trade negotiations that require more frequent consultations than required by the Bipartisan Trade Promotion Authority Act of 2002 (19 U.S.C. 3801 et seq.), including a process for consultation with any committee of Congress with jurisdiction over any area covered by the negotiations;
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<br />(4) binding negotiating objectives and requirements outlining what must and must not be included in a trade agreement, including the requirements described in section 4(b);
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<br />(5) a process for review and certification by Congress to ensure that the negotiating objectives described in paragraph (4) have been met during the negotiations;
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<br />(6) a process—
<br />
<br />(A) by which a State may give informed consent to be bound by nontariff provisions in
<br />a trade agreement that relate to investment, the service sector, and procurement; and
<br />
<br />(B) that prevents a State from being bound by the provisions described in subparagraph (A) if the State has not consented; and
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<br />(7) a requirement that a trade agreement be approved by a majority vote in both Houses of Congress before the President may sign the agreement.
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<br />
<br /><strong>[OVERALL, THE OBAMA-BROWN-MICHAUD BILL SEEMS MORE LIKE AN ATTEMPT BY THE CONGRESSIONAL MAJORITY TO UNILATERALLY REALLOCATE THE CONSTITUTIONAL POWERS VESTED IN THE EXECUTIVE & LEGISLATIVE BRANCHES, AS CONCERNS 'TREATY-MAKING' and THE REGULATION OF 'FOREIGN COMMERCE'. THIS REFLECTS AN ONGOING 'BALANCE OF POWERS' STRUGGLE FOR AUTHORITY BETWEEN THE EXECUTIVE & LEGISLATIVE BRANCHES. WE WONDER WHETHER THE NEXT PRESIDENT WILL CHOOSE TO SIGN THIS BILL OR RATHER VETO IT, GIVEN THAT THE THE OBAMA-BROWN-MICHAUD BILL WOULD EFFECTIVELY WEAKEN THE HAND OF ANY FUTURE PRESIDENT TO EXECUTE HIS/HER TREATY POWER.]</strong>
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<br />
<br /><strong>[ALTERNATIVELY, THE OBAMA-BROWN-MICHAUD Non-Tariff Trade Barrier Act SERVES AS THE QUINTESSENTIAL TOOL FOR ENGAGING IN POLITICAL POSTURING & MISINFORMATION, IN ORDER TO INFLUENCE PUBLIC OPINION AND SECURE VOTES IN NOVEMBER 2008.]</strong>
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<br />ITSSD Charitable Missionhttp://www.blogger.com/profile/00790887154748866904noreply@blogger.com0tag:blogger.com,1999:blog-7037944389322160928.post-91010686352866874972008-06-03T13:06:00.000-07:002008-06-03T18:33:45.637-07:00Do EU Governments' State-Aid Environmental Clean Energy-Promoting 'Subsidies' Comply With WTO Law??<a href="http://ec.europa.eu/comm/competition/state_aid/studies_reports/vademecum_on_rules_2007_en.pdf">http://ec.europa.eu/comm/competition/state_aid/studies_reports/vademecum_on_rules_2007_en.pdf</a><br /><a href="http://ec.europa.eu/community_law/images/euflag/euflag_en.jpg"><img style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 281px; CURSOR: hand; HEIGHT: 211px" height="133" alt="" src="http://ec.europa.eu/community_law/images/euflag/euflag_en.jpg" border="0" /></a><strong><span style="font-size:130%;color:#33ff33;">EU State Aid Programs to Improve the Environment</span></strong><br /><br /><br /><strong><span style="font-size:130%;"><span style="color:#33ff33;">VADEMECUM [MANUAL] COMMUNITY RULES ON STATE AID</span><br /></span></strong><br /><br /><strong>This version of the Vademecum was updated on 15/02/2007.</strong><br /><br /><br />“The European Commission has launched in June 2005 a comprehensive reform of state aid rules and procedures under the title of <strong>State Aid Action Plan (hereinafter only the “Plan”). [See: COM(2005) 107 final June 7, 2005)</strong> at: <a href="http://ec.europa.eu/comm/competition/state_aid/reform/saap_en.pdf">http://ec.europa.eu/comm/competition/state_aid/reform/saap_en.pdf</a> ]. The Commission announced that it would aim in particular to ensure that EC Treaty’s state aid rules are better suited to encourage Member States to contribute to the Lisbon Strategy by focussing aid on improving the competitiveness of EU industry and creating sustainable jobs (for example aid for R & D, innovation and risk capital for small firms), on ensuring social and regional cohesion and improving public services. Since the adoption of the Plan, a number of new regulatory texts have been adopted (such as the new regional aid guidelines) and others are currently under revision. The process should largely be completed by 2009.<br /><br /><br /><strong><em><span style="font-size:130%;"><span style="color:#ff0000;">...Article 87(1) of the Treaty establishing the European Community Treaty provides that State aid is, in principle, incompatible with the common market</span><span style="color:#ff0000;">. Under Article 88 of the Treaty, the Commission is given the task to control State aid. </span></span></em></strong>This article also requires Member States to inform the Commission in advance of any plan to grant State aid (“notification requirement”).<br /><br /><br />State aid rules apply only to measures that satisfy all of the criteria listed in Article 87(1) of the Treaty, and more in particular:<br /><br /><br /><span style="font-size:130%;color:#ffff00;"><strong>(</strong></span><span style="color:#ffff00;"><strong><span style="font-size:130%;">a) Transfer of State resources:</span><br /></strong></span>State aid rules cover only measures involving a transfer of State resources (including national, regional or local authorities, public banks and foundations, etc.). Furthermore, <strong><em><span style="font-size:130%;">the aid does not necessarily need to be granted by the State itself. It may also be granted by a private or public intermediate body appointed by the State.</span></em></strong> The latter could apply in cases where a private bank is given the responsibility to manage a state funded SME aid scheme. <strong><span style="font-size:130%;color:#33ff33;">Financial transfers that constitute aid can take many forms: not just grants or interest rate rebates, but also loan guarantees, accelerated depreciation allowances, capital injections etc.<br /></span></strong><br /><br /><span style="font-size:130%;color:#ffff00;"><strong>(b) Economic advantage:</strong></span><br />The aid should constitute <strong><span style="font-size:130%;color:#33ff33;">an economic advantage that the undertaking would not have received in the normal course of business</span></strong>. <strong>Less obvious examp</strong>les of transactions satisfying this condition are given below:<br /><br /> A firm buys/rents publicly owned land at less than the market price;<br /> A company sells land to the State at higher than market price;<br /> A company enjoys privileged access to infrastructure without paying a fee;<br /> An enterprise obtains risk capital from the State on terms, which are more favourable<br />than it would obtain from a private investor.<br /><br /><br /><strong><span style="font-size:130%;color:#ffff00;">(c) Selectivity:</span></strong><br />State aid must be selective and thus affect the balance between certain firms and their competitors. “Selectivity” is what differentiates State aid from so-called “general measures"<br />(namely measures which apply without distinction across the board to all firms in all economic sectors in a Member State (e.g. most nation-wide fiscal measures)). <strong><span style="font-size:130%;color:#33ff33;">A scheme is considered “selective”, if the authorities administering the scheme enjoy a degree of discretionary power.</span></strong> The selectivity criterion is also satisfied if the scheme applies to only part of the territory of a Member State (this is the case for all regional and sectoral aid schemes).<br /><br /><strong><br /><span style="font-size:130%;color:#ffff00;">(d) Effect on competition and trade:</span></strong><br />Aid <strong><span style="font-size:130%;color:#33ff33;">must have a potential effect on competition and trade between Member States</span></strong>. It is sufficient if it can be shown that the beneficiary is involved in an) economic activity and that he operates in a market in which there is trade between Member States. The nature of the beneficiary is not relevant in this context (even a non-profit organisation can engage in economic activities).<br /><br /><br />...<span style="font-size:180%;color:#ff0000;"><strong>According to Article 87(1) of the Treaty, aid measures that satisfy all the criteria outlined above are, in principle, incompatible with the common market.</strong></span> However, the principle of incompatibility does not amount to a full-scale prohibition. Articles 87(2) and 87(3) of the Treaty specify <strong><span style="font-size:130%;color:#ffff00;">a number of cases in which State aid <span style="color:#33ff33;"><em>could be</em></span> considered acceptable (the so called “exemptions”).<br /></span></strong><br /><br />In the context of Structural Funds operations, the most relevant exemption clauses are those of Article 87(3)(a) and 87(3)(c) of the Treaty:<br /><br /> Article 87(3)(a) covers “aid to promote the economic development of areas where the standard of living is abnormally low or where there is serious underemployment”;<br /> Article 87(3)(c) refers to “aid to facilitate the development of certain economic activities or certain economic areas, where such aid does not adversely affect trading conditions contrary to the common interest”.<br /><br /><br /><strong><span style="font-size:130%;">...(b) Other Horizontal rules:</span></strong><br />Cross-industry or “horizontal” rules set out the Commission’s position on particular categories of aid which are aimed at tackling problems which may arise in any industry and region. To date, the Commission has adopted “frameworks”, “guidelines” or “block exemption regulations” setting out the criteria that are to be applied to the following categories of aid:<br /><br /> Aid for small and medium-sized enterprises;<br /> <span style="font-size:130%;color:#ff6600;"><strong>Aid for research and development and innovation;<br /></strong></span> <strong><span style="font-size:130%;color:#ff6600;">Aid for environmental protection;<br /></span></strong> Aid for risk capital;<br /> Aid for services of general economic interest;<br /> Aid for the rescue and restructuring of firms in difficulty;<br /> Aid to employment; and<br /> Training aid.<br /><br /><br /><strong><em><span style="font-size:130%;">...[T] the “Community Guidelines on State aid for Environmental Protection” (Official Journal No C 37, 3.2.2001, p.3) cover aid for actions designed to remedy or prevent damage to our physical surroundings or natural resources or to encourage the efficient use of these resources.<br /></span></em></strong><br /><br /><strong><span style="font-size:130%;">...INVESTMENT AID & AID FOR ADVISORY SERVICES<br />Eligible activities & costs</span></strong><br /><br /><br /><strong><span style="font-size:130%;color:#ff6600;">Aid for investment to adapt to new compulsory EU environmental standards or to improve on such standards</span></strong><br /><br /><br />- <strong><em><span style="font-size:130%;color:#ffcc00;">Eligible costs: Strictly limited to the extra costs of the investments in land, buildings, equipment and intangible assets necessary to achieve the compulsory standards and/or to meet the environmental objectives</span></em></strong>. In all cases, the eligible costs must be calculated net of the benefits accruing from any increase in capacity, cost savings engendered during the first five years of the life of the investment and additional ancillary production during that five-year period.<br /><br /><br />- Aid for investment to adapt to new compulsory EU standards can be granted to SMEs only and can be made available only during a period of three years from the adoption of these new standards.<br /><br /><br /><strong><span style="font-size:130%;color:#ffcc00;">Aid for investment in energy saving, in renewable sources of energy and in combined heat and power installations (CHP)</span></strong><br /><br /><br />- <strong><span style="font-size:130%;color:#ffcc00;">Eligible costs: Strictly limited to the extra costs of the investments in land, buildings, equipment and intangible assets necessary to achieve the environmental objectives. In all cases, the eligible costs must be calculated net of the benefits accruing from any increase in capacity, cost savings</span></strong> engendered during the first five years of the life of the investment <strong><span style="font-size:130%;color:#ffcc00;">and additional ancillary production</span></strong> during that five-year period.<br /><br /><br />- <span style="font-size:130%;color:#33ff33;"><strong>In the case of renewables or CHP, the extra costs are defined as the extra cost compared to the cost of a comparable conventional power plant.<br /></strong></span><br />------------------------------------------------------------------------------------------------<br /><br /><a href="http://ec.europa.eu/comm/competition/state_aid/studies_reports/2008_spring_en.pdf">http://ec.europa.eu/comm/competition/state_aid/studies_reports/2008_spring_en.pdf</a><br /><br /><strong><span style="font-size:130%;">COMMISSION OF THE EUROPEAN COMMUNITIES<br />Brussels, 21.5.2008<br />COM(2008) 304 final<br /><br />REPORT FROM THE COMMISSION<br />State Aid Scoreboard<br />- Spring 2008 Update –<br /><br />(at pp. 3-5)<br /></span></strong><br /><br />... <strong><span style="font-size:130%;">EXECUTIVE SUMMARY</span></strong><br /><br /><br />Environmental and energy aid 1) <strong><em><span style="font-size:130%;">Environmental aid measures need to be examined by the Commission to ensure that the benefits they bring about outweigh any distortion of competition</span></em></strong>.<br /><br /><br />The EU is at the forefront of international efforts to combat climate change - one of the greatest environmental, social and economic threats facing the planet. The EU has played a key role in the development of the two major treaties addressing the issue, the 1992 UN Framework Convention on Climate Change and its Kyoto Protocol, agreed in 1997.<br /><br /><br />Moreover, the EU has been taking serious steps to address its own greenhouse gas emissions since the early 1990s. <strong>An integrated EU energy policy that gives substantial weight to energy efficiency and renewable energy is the EU's response to volatile oil and gas prices, the fear of energy supply disruption and the impact on climate change of the high use of fossil energies.</strong> <a href="http://divisionoflabour.com/archives/MikeLesterEthanolCartoon.jpg"><img style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 395px; CURSOR: hand; HEIGHT: 272px" height="135" alt="" src="http://divisionoflabour.com/archives/MikeLesterEthanolCartoon.jpg" border="0" /></a><br /><br />Within this broad context, <strong><span style="font-size:130%;color:#ffff00;">the Commission has recently revised the role that State aid plays in supporting the EU environmental and energy policy objectives, by adopting a new set of guidelines as part of the climate change package that the European Commission adopted in January 2008.<br /></span></strong><br /><br />Member States resort to a wide range of national environmental policy measures to protect their environment: to limit pollution of air, water and soil, to protect natural resources, to promote renewable energy sources and energy savings, to manage waste, etc. <strong>Many of these objectives are targeted through general measures</strong>, i.e. applied throughout a particular country without regional or sectoral selectivity, <strong>or are addressed through market-based instruments, such as the Emission Trading Scheme and the Energy Taxation Directive, which don't entail State aid.<br /></strong><br /><br /><br /><strong><span style="font-size:180%;">[SINCE WHEN ARE REGULATIONS MARKET-BASED INSTRUMENTS??]<br /></span></strong><br /><br /><br /><strong><span style="font-size:180%;color:#ff0000;">However, there are also environmental measures or exemptions from general measures (e.g. environmental tax relief) which favour certain companies or the production of certain goods.</span></strong> <strong><em><span style="font-size:130%;">Such measures may distort competition between companies and it is therefore important that the benefits they bring about are carefully balanced against the distortion of competition they cause.</span></em></strong> The adoption of the new Guidelines on State aid for environmental protection, in the context of the energy and climate change package, opens up new opportunities for Member States in this field that are worth exploring.<br /><br /><br /><strong><span style="font-size:130%;color:#ffff00;">2) Over the last 7 years, 98 % of the 350 environmental aid measures examined by the Commission were found to be compatible with the internal market.</span></strong><br /><br /><br /><br /><strong><span style="font-size:180%;">[THIS LEVEL OF COMPATIBILITY WITH THE EU TREATY IS UNLIKELY TO BE THE SAME FOR PURPOSES OF THE WTO 'SUBSIDY' RULES]</span></strong><br /><br /><br />In the seven years that these guidelines have been in force, the Commission has taken around 350 decisions. Drawing on these decisions, <strong><span style="font-size:130%;">the Scoreboard provides clear examples of when environmental targeted measures constitute State aid and when this aid can be considered as compatible with the common market. </span></strong>The majority of examples are chosen among cases recently approved by the Commission and constitute either typical or innovative cases in the different sub-areas where environmental aid can be granted (i.e. renewable energy, energy saving, waste management, etc.). <strong><span style="font-size:130%;">In the vast majority of environmental aid cases (98 %), the Commission found them to be compatible. </span></strong>It is however worth noting that this high figure includes cases in which the Commission may have identified certain issues related to the compatibility. Such issues can often be resolved within the scope of the notification procedure through a change in the measure.<br /><br /><strong><span style="font-size:130%;color:#ffff00;">3) Increasing use of environmental aid guidelines but considerable variations from one Member State to another.</span></strong><br /><br />As the case studies in section 1.6 show, <strong><span style="font-size:130%;color:#33ff33;">environmental aid encompasses a wide range of objectives, including support measures for renewable energy, energy-saving, waste management, rehabilitation of polluted industrial sites and improvement of production processes.</span></strong> For these types of measures, aid granted by Member States <strong><em><span style="font-size:130%;color:#ff6600;">pursues a direct benefit to the environment</span></em></strong>. State aid expenditure data for such cases can therefore be taken as <strong><span style="font-size:130%;color:#33ff33;"><em>a proxy measure for the intended environmental benefit</em></span></strong>, regardless of the form in which the aid may be awarded (grant, tax exemption, guarantee, etc.). <span style="font-size:180%;color:#ff0000;"><strong>This represented approximately 47 % of total environmental aid expenditure in 2006 (around €6.7 billion).<br /></strong></span><br /><br /><strong><span style="font-size:130%;color:#33ff33;">A second category of State aid measures assessed under the environmental aid guidelines are reductions or exemptions from environmental taxes.</span></strong> <strong><span style="font-size:130%;color:#ff6600;">Here, the environmental objective of the measure is pursued by the tax itself. Any reduction or exemption from environmental taxes, i.e., the part of the measure constituting aid, has an indirect environmental objective</span></strong> by facilitating the introduction or modification of such taxes (going beyond the minima imposed by European Directives for example). Expenditure data currently available for <strong><em><span style="font-size:130%;color:#33ff33;">this category of aid schemes indicate the amount of tax revenue foregone and can therefore not serve as a proxy measure for the environmental benefit</span></em></strong> the taxes themselves have brought. <strong><span style="font-size:180%;color:#ff0000;">In 2006, some 53 % of total expenditure (around €7.5 billion) fell under this category.<br /></span></strong><br /><br />Any analysis of State aid expenditure for environmental purposes must therefore take account of the fact that <strong><em><span style="font-size:180%;color:#ff0000;">a large proportion of aid comprises tax exemptions from environmental taxes, usually benefiting energy intensive industries including sometimes big polluters, that had to be accepted in order to allow for certain types of environmental taxes to be introduced.</span></em></strong><br /><br /><br /><strong><span style="font-size:130%;">Although the tax exemptions from environmental taxes do not by themselves aim directly at reaching higher environmental standards, such exemptions are only allowed where the taxes themselves are intended to make a significant contribution to protecting the environment and where the exemptions do not undermine the general objectives pursued.<br /></span></strong><br /><br />For this reason, the new State aid guidelines for environmental protection require that where companies do not pay at least the Community minimum or where the tax in question is not subject to Community-wide harmonisation,, long term derogations from environmental taxes remain only possible when Member States can demonstrate that they are necessary and proportionate. <strong><span style="font-size:180%;color:#ff0000;">Although the number of new environmental aid measures has remained relatively stable for the majority of Member States since 2001, total expenditure for environmental purposes doubled between 2001 and 2006 from € 7 to € 14 billion.</span></strong> <strong><span style="font-size:180%;color:#ff0000;">In relative terms, environmental aid amounted to 0,12 %.of EU-27 GDP in the period 2004 - 2006 compared with 0.08 % in the period 2001 – 2003.</span></strong><br /><br /><br /><br /><br />This average hides significant disparities between Member States. <strong><span style="font-size:130%;">The largest aid grantors in 2004 - 2006 were Sweden (0.77 % of GDP), Denmark (0.35 %), Germany (0,32 %.) followed by Austria, the Netherlands and Finland </span></strong>each of which granted aid above the EU average. Environmental aid expenditure in the United Kingdom stood at half the EU-27 average, while all other Member States, including Spain, France and Italy, granted aid amounting to less than one quarter of the EU-27 average in terms of GDP.<br /><br /><br /><br /><br /><strong><span style="font-size:180%;color:#ff0000;">The overall level of expenditure in environmental aid measures in the EU is strongly influenced by the largest aid grantors, Germany and Sweden, in which tax exemptions account for over 90 % of total environmental aid in each country.</span></strong> A CO2 tax reduction for industry and a tax exemption from the energy tax on electricity led to a remarkable rise in aid expenditure for Sweden from 2003 onwards. In Germany, expenditure has risen steadily following the approval in 2002 of a measure that prolonged several tax exemptions from the German energy taxation on electricity and mineral oils. Data show that, leaving aside aid in the form of tax exemptions, the trend in the level of environmental aid remains stable.<br /><br />--------------------------------------------------------------<br /><br /><strong><span style="font-size:130%;">pp. 8-23<br /></span></strong><br />... <strong><span style="color:#33ff33;">Sustainable development, security of supply and competitiveness are precisely the objectives of the Green Paper on a European Energy Strategy which was adopted by the Commission early 2006.</span></strong> By October the same year, the Commission proposed an Action Plan to reduce energy use, followed in early 2007 by a Commission proposal for an integrated energy and climate change package with significant reduction targets in greenhouse gas emissions by 2020. Most of these proposals were endorsed by the 2007 Spring European Council. Agreement was reached on an integrated climate and energy policy, including a number of headline political targets and a detailed action plan on how to realise them...<br /><br /><br />...<strong><span style="font-size:130%;">In response to the above-mentioned Council conclusions the Commission presented, on 23 January 2008, its proposal for an energy and climate change package</span></strong> which included...<br /><br /><br />... <strong><span style="font-size:130%;">New guidelines on State aid for environmental protection (hereinafter Environmental Aid Guidelines). The revised Environmental aid Guidelines are an important part of the Energy and Climate Change package</span></strong> aiming to provide the right incentives for Member States and for industry to increase their efforts for the environment. <strong><em><span style="font-size:130%;">They aim to strike the right balance between generous support mechanisms for well targeted environmental aid and the preservation of competition</span></em></strong> which is necessary for the well-functioning of the market based instruments introduced by the package. The guidelines are the only part of the package that will immediately enter into force.<br /><br /><br /><span style="font-size:130%;">...<strong><span style="color:#ffff00;"> 1.7. State aid expenditure on environmental protection</span></strong></span><br />...[E]nvironmental aid encompasses a wide range of objectives, <strong><em>including support measures for renewable energy, energy-saving, waste management, rehabilitation of polluted industrial sites and improvement of production processes.</em></strong> For these types of measures, aid granted by Member States pursues a direct benefit to the environment.<br /><br /><br />State aid expenditure data for <strong><span style="font-size:130%;color:#33ff33;">such cases</span></strong> <strong><span style="font-size:130%;color:#33ff33;">can therefore be taken as <em><span style="color:#ff6600;">a proxy measure for the intended environmental benefit</span></em>, regardless of the form in which the aid may be awarded (grant, tax exemption, guarantee, etc.)</span></strong>. <strong><span style="font-size:180%;color:#ff0000;">This represented approximately 47 % of total environmental aid expenditure in 2006 (around €6.7 billion).<br /></span></strong><br /><span style="font-size:130%;"><br /><strong><span style="color:#33ff33;">A second category of State aid measures assessed under the environmental aid guidelines are <span style="font-size:180%;">reductions or exemptions from environmental taxes</span>. Here, the environmental objective of the measure is pursued by the tax itself.</span></strong></span> <strong><em><span style="font-size:130%;color:#ff6600;">Any reduction or exemption from environmental taxes, i.e., the part of the measure constituting aid, has an indirect environmental objective by facilitating the introduction or modification of such taxes.</span></em></strong> Expenditure data currently available for this category of aid schemes indicate the amount of tax revenue foregone and can therefore not serve as a proxy measure of the environmental benefit the taxes themselves have brought. <strong><span style="font-size:180%;color:#ff0000;">In 2006, some 53 % of total expenditure (around €7.5 billion) fell under this category.<br /></span></strong><br /><br />Any analysis of State aid expenditure for environmental purposes must therefore take account of the fact that <strong><span style="font-size:180%;color:#ff0000;">a large proportion of aid comprises tax exemptions from environmental taxes, usually benefiting energy intensive industries including sometimes big polluters, that had to be accepted in order to allow for certain types of environmental taxes (going beyond the minima imposed by European Directives for example) to be introduced</span></strong>. That share of tax exemptions is strongly influenced by the largest environmental aid grantors, Germany and Sweden.<br /><br /><br /><strong><em><span style="font-size:130%;color:#ffcc00;">Such exemptions are only allowed where the taxes themselves are intended to make a significant contribution to protecting the environment and where the exemptions do not undermine the general objectives pursued.</span></em></strong> <strong><span style="font-size:130%;color:#33ff33;">For this reason, the new State aid guidelines for environmental protection require that where companies do not pay at least the Community minimum or where the tax in question is not subject to Community-wide harmonisation, long-term derogations from environmental taxes remain only possible when Member States can demonstrate that they are necessary and proportionate.<br /></span></strong><br /><br />EU-wide, aid in the form of grants represents around 17 % of total environmental aid although the proportion is higher, for example, in the Netherlands which awards a significant proportion of its aid in the form of subsidies for the production of energy from renewable energy sources and combined heat and power production (CHP).<br /><br /><br />Looking at the share of each aid instrument in terms of number of measures paints a rather different picture: aid in the form of grants account for 70 % of the total number of environmental aid measures while tax exemptions make up less than 20 % of the total (Figure 2).<br /><br /><br /><strong><span style="font-size:130%;color:#ffff00;">The amount of environmental aid doubled between 2001 and 2006</span></strong><br /><strong><span style="font-size:130%;"><span style="color:#ff0000;">In 2006, the EU-27 Member States awarded 14 billion of State aid under the environmental aid guidelines compared with € 7 billion in 2001.</span> The largest environmental aid grantors in absolute terms, which together granted more than 90 % of total environmental aid, were Germany (€ 8 billion), Sweden (€ 2.5 billion), the United Kingdom (€ 1 billion), the Netherlands (€ 860 million) and Denmark (€ 600 million).</span> </strong>In more than half the Member States, expenditure did not exceed € 20 million in 2006.<br /><br /><br /><strong><span style="font-size:130%;color:#ffff00;">Large disparities between Member States in the share of environmental aid as a percentage of GDP</span></strong><br /><br /><br />In relative terms, environmental aid amounted to 0.12 % of EU-27 Gross Domestic Product (GDP) in the period 2004-2006. This average hides significant disparities between Member States. The largest aid grantors in relative terms were Sweden (0.77 % of GDP), Denmark (0.35 %) and Germany (0.32 %), followed by Austria, the Netherlands and Finland each of which granted aid above the EU average. Environmental aid expenditure in the United Kingdom stood at half the EU-27 average, while all other Member States, including Spain, France and Italy, granted aid amounting to less than one quarter of the EU-27 average in terms of GDP (see Table 1). It is worth noting that even if tax exemptions are excluded from the figures, the ranking of Member States is broadly similar.<br /><br /><br /><strong><span style="font-size:130%;color:#ffff00;">Leaving aside aid in the form of tax exemptions, the trend in the level of environmental aid is stable.</span></strong><br />EU-wide, total environmental aid as a percentage of GDP has increased from 0.08 % in the period 2002 - 2004 to 0.12 % in the period 2004 - 2006. However, this upward trend is largely the result of significant increases in the use of tax exemptions: their share in total environmental aid has increased from 69 % in 2001 to 83 % in 2006. As regards aid in the form of grants or other State aid instruments with a direct impact on the environment, there has been no significant increase in the overall expenditure.<br /><br /><br /><strong><span style="font-size:130%;color:#ff0000;">Box: Environmental taxation<br /></span></strong><br />... Data on the share of environmental taxes to total taxation indicate that <strong><span style="font-size:180%;color:#33ff33;">roughly one Euro out of every fifteen in revenue derives from environmental taxes. <span style="font-size:130%;color:#ffcc00;">Environmental tax revenues in the last five years have been on the decline, at least in the EU-15.</span></span></strong> <strong><em>In contrast, in the EU-12 Member States, which originally levied low environmental taxes, revenues from this kind of taxes have shown a strong progression over time</em></strong>, so that by now there is practically no difference vis-à-vis the EU-15 in this respect.<br /><br /><br /><strong><span style="font-size:180%;color:#ff0000;">Looking at the ratio of environmental tax-to-GDP most Member States tend to fall in a band ranging from 2 % to 3 % of GDP, or slightly higher. At 5.8 % in 2005, Denmark</span></strong> displayed by far the highest level of "green" taxes followed by the Netherlands (4 %).<br /><br /><br /><strong><em><span style="font-size:130%;color:#ffff00;">A high share of environmental tax revenue as such does not necessarily represent an indication of a high priority being attributed to environmental protection</span></em></strong>. <strong><span style="font-size:130%;">Energy taxes were originally used purely as revenue raising instruments, without environmental purposes.</span></strong> Furthermore, the level of this indicator also says nothing about the achievement of environmental policy goals, as revenue increases could conceivably result from changes in the economy towards production and consumption patterns that are resource intensive and lead to even higher pollution...<br /><br /><br /><strong><span style="font-size:130%;color:#ffff00;">Vast majority of environmental aid awarded through schemes<br /></span><span style="font-size:180%;color:#ff0000;">Over the period 2001-2007, around 12 % of environmental aid decisions involved individual awards of aid to companies as opposed to aid schemes</span></strong>. However, in terms of expenditure, individual aid amounted to only 2 % of total environmental aid.<br /><br /><br /><strong><span style="font-size:130%;color:#ffff00;">...1.8. The new guidelines on State aid for environmental protection</span></strong><br /><br /><br /><strong><span style="font-size:130%;color:#ff6600;">...The main idea behind the revised guidelines is that Member States should not use State aid as the main tool to address environmental concerns.</span></strong> As shown in section 1.2 above, Member States have several other means at hand (such as regulatory measures, market-based mechanism, etc.) that should be used for this purpose in the first place. <strong><span style="font-size:130%;color:#ff6600;">State aid should remain a fallback option to be used only when it can be proved that the targeted objective cannot be reached by other means.<br /></span></strong><br /><br />But, in certain cases, granting State aid may be justified to give private firms an incentive to invest more in environmental protection or to relieve some firms from a relatively high financial burden in order to enforce a stricter environmental policy overall. However, it should not be possible to grant badly targeted or excessive State aid which not only distorts competition but is also counterproductive for meeting environmental objectives. <strong><em><span style="font-size:130%;color:#ff6600;">The new Environmental aid Guidelines make sure that competition is not unduly distorted by support mechanisms – e.g. subsidies, tax exemptions – that Member States develop for the environment. They ensure that State aid measures are better targeted and that the positive effects outweigh the negative effects in terms of distortions of competition.</span></em></strong> Furthermore, they guarantee that, at the same time, businesses receive sufficient – but not more – incentive to make more environmentally friendly investments or to use, for example, more renewable energy. These new rules introduce more economic analysis, focus on the most distortive measures and define clear rules for tax exemptions and ETS.<br /><br /><br /><strong>Compared to the previous guidelines, the revised version brings about improvements in the following areas.<br /></strong><br /><br />– <strong><span style="font-size:130%;color:#ffff00;">Introduction of a clearer and more user-friendly definition of eligible costs based on the concept of "extra investment costs"</span></strong> (see box below). Indeed, the allowable aid amount is calculated in relation to the extra investment cost that is necessary to achieve the level of environmental protection compared to either an installation fulfilling the mandatory standard or, in the absence of standards, a method of production which is less environmentally friendly. This is so because only State aid which has an additional effect<br />on the environment should be authorised.<br /><br /><br />– <strong><span style="font-size:130%;color:#ffff00;">Increased aid intensities which, in certain cases, can go up to 100 % of the eligible costs.</span></strong> This is allowed, for example, when State aid is linked to a bidding (thus, competitive) process or to support the production of renewable energy and cogeneration where operating aid maybe granted in addition to investment aid in order to cover the full difference between the cost of producing the energy and the market price for the energy concerned.<br /><br /><br />– <strong><span style="font-size:130%;color:#ffff00;">Clarification of the treatment of tax reductions/exemptions. The possibility for long term derogations from environmental taxes is maintained</span></strong> by the new guidelines provided that, after the reduction, the companies concerned still have to pay, at least, the Community minimum. In all other cases, including non-harmonised taxes, Member States must demonstrate that such derogations are both necessary and proportionate.<br /><br /><br />– <strong><span style="font-size:130%;color:#ffff00;">New provisions on aid for early adaptation to standards</span></strong>, aid for environmental studies, aid for district heating, aid for waste management, including recycling, and aid involved in tradable permit schemes.<br /><br /><br />– <strong><span style="font-size:130%;color:#ffff00;">Introduction of a detailed assessment method for cases involving large aid amounts to individual beneficiaries</span></strong>, which have greater potential to distort competition and trade. All other cases will be subject to a standard assessment and, most likely, some of them will be even block-exempted once the Commission adopts the future General Block Exemption Regulation (hereinafter, GBER). As a consequence, Member States would be relieved from the notification obligation and would be able to use a simplified method to calculate the aid amount involved in measures falling under the scope of the GBER. The result would be a considerable reduction of the administrative burden in the field of environmental aid.<br /><br /><br /><strong><span style="font-size:180%;color:#ff0000;">...[I]n cases where the PPP [Polluters Pay Principle] cannot be properly implemented and the production costs are not properly accounted for by industry...[i.e.,] [i]n such market failure situations, State aid can be an appropriate tool.</span></strong> It may also enable individual undertakings to change their behaviour and adopt more environmentally friendly processes or invest in greener technologies. Finally, it may encourage Member States to move beyond Community standards and to efficiently support the production of renewable energy and energy cogeneration.<br /><br /><br /><strong><span style="font-size:130%;color:#ff6600;">...Concept of Extra Costs</span></strong><br />When it comes to investment aid, extra costs are <strong><span style="font-size:130%;color:#33ff33;">calculated either by clearly identifying the part of the investment improving the environmental protection...or by comparing the total investment costs with a reference investment that does not achieve the same higher level of environmental protection.</span></strong> The appropriate reference investment has to be decided on a case by case basis and must be an investment which would be a credible alternative without the aid. For example, for an investment in renewable energy, the reference investment is normally a conventional power plant, while for an investment in co-generation of heat and power, the reference investment is normally an investment in separate production of heat or power.<br /><br /><br />For operating aid, extra costs are defined as the difference between production costs (including investment costs and a normal return on capital) and the market price. Only investment costs which have actually been borne by the undertaking can be included in the extra costs.<br /><br />-------------------------------------------------------------------------------------------------<br /><br /><a href="http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/08/31&format=HTML&aged=0&language=EN&guiLanguage=en">http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/08/31&format=HTML&aged=0&language=EN&guiLanguage=en</a><br /><br /><br /><strong><span style="font-size:130%;">State aid: guidelines on state aid for the environment – frequently asked questions<br /></span></strong><br /><strong><span style="font-size:130%;"><br />MEMO/08/31<br /><br /><br />Brussels, 23 January 2008<br /><br /></span></strong><br />"...Environmental protection is an important objective of the European Union. The level of environmental protection is not considered to be sufficiently high and there is a need to do more. This is due notably to the fact that companies do not fully account for the costs of pollution for societies. <strong><span style="font-size:180%;color:#ffff00;">To address this market failure</span></strong> and promote a higher level of environmental protection, governments may use regulation to ensure that companies pay for their pollution (e.g. through taxes or emission trading systems) or meet certain environmental standards.<br /><br /><br /><strong><span style="font-size:180%;color:#ff6600;">In some cases, state aid may also be justified to give private firms an incentive to invest more in environmental protection or to relieve some firms from a relatively high financial burden in order to enforce a stricter environmental policy overall.</span></strong> At the same time, the guidelines serve as a safeguard that it will not be possible to grant badly targeted or excessive state aid which not only distorts competition but also frustrates the very objective of meeting environmental targets.<br /><br /><br />...If the aid is well targeted, the Guidelines are very generous. For instance, for the production of renewable energy, <strong><span style="font-size:180%;color:#33ff33;">Member States have the possibility to cover 100% of extra-costs supported by the companies.</span></strong><br /><br /><br />...2. <strong><span style="font-size:130%;color:#ffcc00;">The aid intensities have increased considerably.</span></strong> The intensities <strong><span style="font-size:130%;"><span style="color:#33ff33;">for large enterprises have gone from a range of 30%-40% to 50%-60%. </span><span style="color:#ff6600;">For small enterprises the intensities have gone from 50%-60% to 70%-80%.</span></span></strong> Furthermore, where an investment to improve on Community Standards or improve the level of environmental protection in the absence of standards involves eco-innovation, <strong><span style="font-size:130%;color:#ff0000;">a further 10% aid bonus may be granted. In addition, a possibility to grant 100% </span></strong>following a competitive procedure has been introduced.<br /><br /><br />...3. <strong><span style="font-size:180%;color:#ffff00;">As far as tax reductions are concerned, the guidelines maintain the possibility of long term derogations from environmental taxes without conditions</span></strong> <strong><em><span style="font-size:130%;color:#33ff33;">as long as after reduction, the companies concerned pay at least the Community minimum</span></em></strong>. <strong><span style="font-size:130%;color:#ff0000;">Where the companies do not pay at least the Community minimum, long term derogations remain possible but Member State must demonstrate that these derogations are necessary and proportionate.</span></strong> The beneficiaries of very important reductions of even full exemptions are sometimes big polluters. The Commission considers that under certain conditions, such derogations may be justified, but Member States should justify their necessity.<br /><br /><br />...<strong><span style="font-size:130%;">The aid amount is based on the extra investment costs necessary to achieve the level of environmental protection</span></strong> compared to e.g. an installation fulfilling the mandatory standard or a method of production which is less environmentally friendly in the absence of standards...<strong><span style="font-size:130%;color:#33ff33;"><em>Only State aid which has an additional effect on the environment should be authorised </em></span></strong>and the likelihood that the aid is necessary to increase the level of environmental protection is higher if the aid is granted on the basis of the extra cost approach.<br /><br /><br />...<strong><em><span style="font-size:130%;color:#ff6600;">The aid intensities for investments are normally not 100% of the extra investment costs because, first the calculation of extra cost is not accurate, e.g. operating benefits are not taken into account over the whole life time of the installation</span></em></strong>. <strong><span style="font-size:130%;color:#ff6600;">Second, a more environmentally friendly image may have a commercial value for the enterprise or may even be indispensable for the future survival of the company</span></strong>...<strong><span style="font-size:130%;color:#33ff33;">However, if the State aid is linked to a bidding process, the aid intensity can go up to 100%. </span></strong>Furthermore, for the production of renewable energy and cogeneration operating aid may be granted in addition to investment aid to cover the full difference between the cost of producing the energy and the market price for the energy concerned. The aid may even cover a normal return on capital. Thus, 100% of extra costs are covered.<br /><br /><br />...High aid amounts have a greater risk of distorting competition and trade, and will therefore be subject to a detailed assessment. Thus, high aid amounts to individual beneficiaries must be notified individually to the Commission, even if they are granted under a scheme already approved by the Commission. For operating aid for energy production capacity thresholds are used as an indication of high aid amounts."<br /><br />-------------------------------------------------------------------------------------------<br /><br /><a href="http://www.umweltdaten.de/publikationen/fpdf-k/k2549.pdf">http://www.umweltdaten.de/publikationen/fpdf-k/k2549.pdf</a><br /><br /><br /><strong><span style="font-size:130%;">The Polluter Pays Principle under WTO Law: The Case of National Energy Policy Instruments</span></strong><br /><br /><br />By Frank Biermann, Frédéric Böhm, Rainer Brohm, Susanne Dröge and Harald Trabold<br /><br /><br /><strong>ENVIRONMENTAL RESEARCH OF THE FEDERAL MINISTRY OF THE ENVIRONMENT, NATURE CONSERVATION AND NUCLEAR SAFETY<br />Research Report 201 19 107<br />UBA-FB 000555/e<br /><br />TEXTE 76/2003</strong><br /><br /><br />"<strong><span style="font-size:130%;color:#33ff33;"><em>[I]nstruments of German domestic and international energy policy...[include] The Polluter Pays Principle. The PPP is an environmental policy guideline stipulating that the costs of pollution prevention and control should be borne by the polluter.</em></span></strong> The OECD has included the PPP in its environmental policy guidelines and it can also be found in European Law and in the UNCED Rio Declaration (1992). The PPP is applied to differing degrees by various countries around the world.<br /><br /><br /><strong><span style="font-size:180%;color:#ff0000;">...The PPP is not part of the WTO rules</span></strong>, which are concerned with facilitating international trade. This does, however, not hinder PPP-application per se, but has some implications for national policy instruments which require that polluters should bear the environmental costs of their activities.<br /><br /><br />... Only <strong><span style="font-size:180%;color:#ff0000;">the application of non-product related standards on imports, i.e. standards prescribing production methods which do not determine the physical characteristics of a product, are not compatible with current interpretation of WTO law</span></strong>. <strong><em><span style="font-size:130%;color:#ffff00;">Electricity from different sources (e.g. nuclear and solar power) is regarded as a “like product” and imported electricity must not be discriminated against based on its production method</span></em></strong>. Currently, such discrimination is not part of any German command and control policy.<br /><br /><br />... Environmental taxes are levied in order to charge a polluter for the damages caused by his activities. In theory, they help to fully internalise the environmental costs of consumption and production. However, <strong><span style="font-size:130%;color:#ff6600;">national taxation of energy consumption – like the German Ecological Tax Reform - faces difficulties in open economies, as non-taxed imports are available as substitutes for domestic products. As long as international tax harmonisation is not possible, border tax adjustments could help to offset competitive disadvantages</span></strong> without watering down the environmental objectives of taxation, e.g. the reduction of carbon dioxide emissions.<br /><br /><br /><strong><span style="font-size:180%;color:#ff0000;">Whether or not border tax adjustments for energy taxes are permitted under world trade law is not entirely clear given the lack of precise legal provisions and case law.<br /></span></strong><br /><br />... <strong><span style="font-size:130%;color:#33ff33;">A subsidy can be defined in a broad sense as an economic benefit received by a private agent from public funds. Subsidies are in general not compatible with the PPP</span></strong>. They are, however, often applied as a temporary measure to enable producers to avoid emissions in the long run. <strong><em><span style="font-size:130%;color:#ffff00;">The WTO definition of a subsidy is regulated in the GATT and in the Agreement on Subsidies and Countervailing Measures (ASCM). It comprises direct subsidisation (financial contribution) and income or price support by a government.</span></em></strong> <strong><span style="font-size:180%;color:#ff0000;">Prohibited are all subsidies</span></strong> that are based on export performance or <strong><span style="font-size:180%;color:#ff0000;">contingent upon the use of domestic over imported goods</span></strong>.<br /><br /><br />We have shown that the German price guarantees for renewable energy in the EEG and KWK cannot be considered as subsidies under WTO law. Even if this were the case, they would be regarded as non-actionable, unless a WTO member could prove serious adverse effects to the domestic industry which are difficult to repair. Furthermore, <strong><span style="font-size:130%;color:#ff6600;">it is also unlikely that the direct German price supports for electricity from renewable energy sources will be challenged in a WTO dispute, because currently, trade in this electricity is low and such subsidies were considered to be <span style="font-size:180%;"><span style="color:#ffff00;">non-actionable under Article VIII (2) ASCM </span><span style="color:#ffff00;">up until 1999</span></span>.</span></strong>"<br /><br />-------------------------------------------------------------------------------------------<br /><br /><a href="http://jonjayray.googlepages.com/kyoto.gif"><img style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 452px; CURSOR: hand; HEIGHT: 342px" height="144" alt="" src="http://jonjayray.googlepages.com/kyoto.gif" border="0" /></a><br /><strong><span style="font-size:130%;">Are the EU Subsidies for Renewable Energy Legal for WTO Purposes??<br /></span></strong><br /><strong><em><span style="font-size:130%;color:#ffff00;">There is a need to distinguish between ‘legitimate’ government activities and trade-distorting subsidies</span></em></strong>.<br /><br /><br />- <strong><span style="font-size:130%;">Domestic subsidy</span></strong> –<br />o Granted to an industry on all of its production of a product, regardless of whether that production is exported. It can have effects similar to a protectionist tariff.<br />§ It can enable domestic industry to reduce its price to a level below that of foreign imports, and effectively drive out import competition.<br />§ It is favorable to consumers b/c it lowers the overall price of products.<br /><br /><br /><strong><span style="font-size:130%;color:#ff6600;">WTO rules - impose significant constraints upon the ability of WTO Member governments to use domestic subsidies.<br /></span></strong><br /><br />o Unbridled and competing national subsidies can undermine world prosperity, and quickly spread from nation to nation.<br />o A major purpose of the GATT is to discipline protective import policies.<br />o Subsidies can undermine market access commitments by importing nations. Promises to reduce or eliminate the use of traditional instruments of protection like tariffs and quotas can prove worthless if other instruments of import protection are substituted for them, and new subsidy programs are one such instrument.<br />o Subsidies are said by many observers to "tilt the playing field" in a way that is unfair or otherwise objectionable, quite independently of whether they frustrate the market access expectations associated with WTO/GATT commitments on particular products or services.<br />§ Subsidies can distort resource allocation by diverting resources from higher valued to lower valued uses. Put slightly differently, they can distort comparative advantage and produce a less efficient global division of labor, leading to lower economic welfare. In the view of some observers, additional disciplines are required to thwart the use of subsidies that result in unfair or economically inefficient distortions of international trade.<br />· <em><strong>See</strong></em>: Alan O. Sykes, THE ECONOMICS OF WTO RULES ON SUBSIDIES AND COUNTERVAILING MEASURES at: <a href="http://www.law.uchicago.edu/Lawecon/workshop-papers/sykes.pdf">http://www.law.uchicago.edu/Lawecon/workshop-papers/sykes.pdf</a><br /><br /><br /><strong><span style="font-size:130%;"><span style="color:#ff6600;">The GATT</span> – treats subsidies as a ‘distortion’ of international trade that creates a disparity between the actual costs incurred in producing a particular good and those which must be borne by the firm undertaking its production.</span></strong><br /><br /><br />- <strong>It is often said that much government support is more of a ‘correction’ of ‘market failure’ (i.e., enhancement of economic welfare) than a ‘distortion’ of market dynamics (and thus a reduction of economic welfare).<br />o The issue then becomes one of identifying whether a particular measure on balance ‘corrects’ or ‘distorts’ the market process.<br />§ i.e., whether it increases or decreases the efficiency with which resources are allocated.<br />§ This depends on theoretical and empirical judgments about how well the domestic political system performs the tasks of deciding what intervention should be undertaken and implementing the program adopted.<br /></strong><br />- <strong>GATT Article XVI</strong> – contains original obligations on subidies.<br />o Introduction of a new domestic subsidy on a product which is bound in a country’s GATT schedule has been termed a ‘prima facie nullification or impairment’ on GATT Article XXIII.<br /><br /><br /><strong><span style="font-size:130%;">WTO Subsidies Agreement –</span></strong><br /><br />- Defines ‘subsidy’<br />o SPECIFIC SUBSIDY – a subsidy available only to an enterprise or industry or group of enterprises or industries within the jurisdiction of the authority granting the subsidy.<br />§ ONLY specific subsidies are subject to discipline under this agreement.<br /><br />§ Although the agreement set out THREE categories of subsidies, only two remain, with the third having been phased out:<br />· <strong>SCM Article 3.1</strong> - <strong><em>Prohibited </em></strong>– <strong><span style="color:#ff0000;">‘Red’</span></strong> –<br />o Those contingent, whether solely or as one of several other conditions, upon the use of domestic over imported goods. Subject to expedited timetable for action by DSB. If found prohibited, it must be immediately withdrawn, or be subject to COUNTERMEASURES.<br /><br />· <strong>SCM Article 5</strong> – <strong><em>Actionable</em></strong> – <strong><span style="color:#ffcc00;">‘Amber’</span></strong> –<br />o No member should cause through the use of subsidies, adverse effects to the interests of other signatories – injury to domestic industry of another signatory, nullification or impairment of benefits accruing directly or indirectly to other signatories, and ‘serious prejudice’ to the interests of another member<br /><br />o Must rely on <strong>SCM Articles 6.2 and 6.3</strong>: requiring DEMONSTRATION OF ‘SERIOUS PREJUDICE’<br />· Burden of proof on complaining member.<br /><br /><br />· <strong>SCM Article 8</strong> – <strong>Non-Actionable</strong> – <strong><span style="color:#33ff33;">‘Green’</span></strong> – <strong><em>PHASED-OUT</em></strong> ** (See <strong>SCM Article 31</strong>)<br />o This window for non-actionable subsidies existed for five years, ending on December 31, 1999, and was not extended;<br />o Non-specific subsidies;<br />o Specific subsidies involving assistance to:<br />§ industrial research & pre-competitive development activity -<br />· Research and Development: “assistance for research activities conducted by firms or by higher education or research establishments on a contract basis with firms.” These subsidies were limited to the cost of personnel, equipment and overhead activity employed exclusively for a research activity. Moreover, government subsidy for research was only permitted up to the point of development of the first non-commercial prototype;<br /><br />§ adapting existing facilities to new environmental requirements imposed by law and/or regulations ****<br />· <strong><span style="color:#33ff33;">Environmental Protection: “assistance to promote adaptation of existing facilities to new environmental requirements imposed by law and/or regulations which result in greater constraints and financial burden on firms.”</span></strong> These subsides were allowed only if they promoted the adaptation of facilities in operation for at least two years to new environmental requirements that were imposed by laws or regulations. In addition, they were limited to 20 per cent of the cost of adaptation, and could not cover the cost of replacing and operating the assisted investment, which had to be fully borne by the firm.<br /><br />o Developing countries refused to sign the Doha Declaration unless the use of these subsidies was revisited. Thus, Article 8 revisitation is specifically mentioned in the Implementation-Related Issues and Concerns decision of November 14, 2001. The text is as follows: Proposal to allow certain subsidies for development: Some countries have proposed that some subsidies in developing countries should not have to face countervailing measures or other actions from other governments. These are described as subsidies with “legitimate development goals,” and include support for regional growth, technology research and development, production diversification, and development and implementation of environmentally sound methods of production.<br /><br />§ The ministers agree that this is an implementation issue to be handled under section 13, which in turn simply refers to Paragraph 12 of the main Doha Declaration. The ministers also agree that during the negotiations their governments will exercise due restraint in challenging these subsidies. <strong><em>See</em></strong>: Francisco Aguayo, Ayala “<em><strong>Preserving Policy Space for Sustainable Development: The Subsidies Agreement at the WTO</strong></em>”, International Institute for Sustainable Development (Dec. 2005) at: <a href="http://www.tradeknowledgenetwork.net/pdf/tkn_policy_space_commentary.pdf">http://www.tradeknowledgenetwork.net/pdf/tkn_policy_space_commentary.pdf</a><br />§ See DOHA WTO MINISTERIAL 2001: MINISTERIAL DECLARATION WT/MIN(01)/DEC/1 (Nov. 20, 2001) at: <a href="http://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_e.htm">http://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_e.htm</a><br /><br /><br />o <strong>SCM Article 1.1(a)</strong>:<br />§ A “subsidy” shall be deemed to exist if:<br /><br />· There is <strong>a financial contribution</strong> by a government or public body, involving:<br /><br />o A direct transfer of funds (grants, loans, equity infusion, etc.)<br />o Foregone government revenue otherwise due; OR<br />o Government payment to a funding mechanism or entrusts or directs a private body to carry out certain specified functions; <strong>AND<br /></strong><br />· Thereby a ‘benefit’ is conferred.<br /><br />o <strong>SCM Article 1.1(b)</strong>:<br />§ ‘Benefit’ clearly encompasses some form of ‘advantage’ -<br />· Need to determine whether the financial contribution places the recipient in a more advantageous position than would have been the case but for the financial contribution<br />o Need to look at the ‘market’ – a financial contribution will only confer a ‘benefit’ if it is provided on terms that are more advantageous than those that would have been available to the recipient on the market.<br />o ‘Cost’ to government is NOT relevant for purposes of making this determination.<br />o Panel found contextual support for its ‘reading’ of the term ‘benefit’ in <strong>SCM Article 14 (a)-(d).<br /></strong><br />· focus on the recipient of the benefit rather than the granting authority<br />o Therefore the cost to government is inconsistent with the ordinary meaning of the term ‘benefit’.<br />· <strong>SCM Article 14</strong> sets forth guidelines for calculating the amount of a subsidy in terms of “the benefit to the recipient”. ****<br />o These guidelines apply to the calculation of the “benefit to the recipient conferred pursuant to par. 1 of Article 1”.<br />· <strong>SCM Article 1.1</strong>, itself, confirms the view that the focus is on the benefit to the recipient and NOT the cost to gov’t.<br />· The term ‘benefit’ implies some kind of comparison:<br />o The marketplace provides an appropriate basis for comparison in determining whether a ‘benefit’ has been ‘conferred’.<br />§ The trade distorting potential of a ‘financial contribution’ can be identified by determining whether the recipient has received a ‘financial contribution’ on terms more favorable than those available to the recipient in the market.<br />§ <strong>SCM Article 14 Guidelines</strong> – relate to: equity investments; loans, loan guarantees; the provision of goods by gov’t.<br />· See: <strong><em>Canada-Measures Affecting the Export of Civilian Aircraft </em></strong>(AB 1999 – Adopted)<br /><br />§ A ‘benefit’ must be received and enjoyed by a beneficiary or a recipient – a person, natural or legal, or a group of persons.<br />· See: <strong><em>United States – Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the UK</em></strong> (WT AB adopted 2000)ITSSD Charitable Missionhttp://www.blogger.com/profile/00790887154748866904noreply@blogger.com0tag:blogger.com,1999:blog-7037944389322160928.post-29476895310711305262008-06-03T10:50:00.001-07:002008-06-03T11:05:46.423-07:00Does the EU Directive on Renewable Energy Create Another Regulatory Platform for Disguised Trade Barriers in Violation of the WTO Agreements??<strong><a href="http://www.herbertsmith.com/NR/rdonlyres/BB3B7762-0AAB-4FA6-A93B-C9A1DDD528CE/7120/Draft_EU_directive_on_renewable_energy_are_the_pro.html">http://www.herbertsmith.com/NR/rdonlyres/BB3B7762-0AAB-4FA6-A93B-C9A1DDD528CE/7120/Draft_EU_directive_on_renewable_energy_are_the_pro.html</a></strong><br /><strong><span style="font-size:130%;"></span></strong><br /><span style="font-size:130%;"><strong>Draft EU directive on renewable energy: are the provisions on biofuels compatible with WTO law?</strong><br /></span><br /><br /><strong>Herbert Smith International Trade and Investment e-bulletin</strong><br /><br /><br />On 23 January 2008, the European Commission published a package of climate action and renewable energy measures that are designed to reduce greenhouse gas ("GHG") emissions. This package includes a draft Directive on renewable energy that would introduce environmental requirements for biofuels. This bulletin focuses on one of the main questions raised in relation to the Commission's proposal on biofuels, namely its compatibility with the law of the World Trade Organisation (WTO).<br /><br /><br />It is important to note that the Commission's climate change package contains proposals that still need to be approved by the EU Council of Ministers and the European Parliament and that the proposals are likely to undergo alterations. The Commission hopes that the proposed measures will be adopted by the end of 2008.<br /><br /><br /><strong><span style="font-size:130%;">Binding target for biofuels<br /></span></strong><br /><br />The draft directive lays down a 10% binding minimum target for the market share of biofuels in 2020 to be observed by all Member States. This 10% target has been set at the same level for each Member State in order to ensure consistency in transport fuel specifications and availability. To achieve this target, a combination of domestic EU production and imports from non-EU countries will be necessary.<br /><br /><br /><strong><span style="font-size:130%;">Sustainability requirements<br /></span></strong><br /><br />The Commission contends that biofuels – alongside vehicle fuel efficiency – are one of the few measures realistically capable of making a significant impact on GHG emissions from transport. However, <strong><em>the Commission also takes the view that biofuels should only be promoted if they are produced sustainably and do not lead to an overall worsening of GHG emissions</em></strong>.<br /><br /><br />Therefore, the Directive sets out stringent environmental sustainability criteria: biofuels must achieve at least a minimum level of 35% GHG emission savings and respect a number of requirements related to land use (designed to prevent land with high biodiversity value, such as natural forests and protected areas, being used for the production of raw materials for biofuels).<br /><br /><br />These environmental criteria are important because <strong><span style="font-size:130%;color:#ff6600;">only biofuels that fulfil the criteria will be taken into account for (i) measuring compliance with Member States' 10% target for biofuels; and (ii) eligibility for consumption subsidies. </span></strong>In practice, this is likely to substantially hinder the marketing of biofuels that do not meet the environmental criteria.<br /><br /><br />1) <strong><em><span style="font-size:130%;color:#33ff33;">35% GHG emission savings</span></em></strong><br />The GHG emission savings from the use of biofuels must be at least 35% compared to fossil fuels (although there is an exemption until 2013 for biofuels that are produced by installations that were operational in January 2008). This requirement applies equally to both domestic and imported biofuels and there are two ways in which this 35% target can be met.<br /><br /><span style="color:#ffff00;"><strong>Default GHG emission savings:</strong></span> The Directive allocates a series of default GHG emission savings values that specific crops are on average expected to meet (e.g. rape seed biodiesel has a GHG emission saving of 36%). These default values can be used without further verification and producers of biofuel in this category will be able to demonstrate fulfilment of the 35% criterion with minimal effort (in most cases they will merely need to document the nature of the biofuel and the type of feedstock used).<br /><br /><strong><span style="color:#ffff00;">Specific GHG emission savings:</span></strong> Alternatively, a producer of biofuels from a crop not automatically meeting the 35% requirement, (or a biofuel that is not currently listed in the Directive as having a default value e.g. soy) can prove to a Member State that in his specific case the 35% requirement is met. Biofuel producers of this category will need to provide detailed evidence of their production practices (including any carbon stock changes caused by land use change) and operators may have to change these practices in order the meet the environmental criteria.<br /><br /><br />2) <strong><em><span style="color:#33ff33;"><span style="font-size:130%;">Land use impact</span><br /></span></em></strong>Requirements for biofuel raw material produced in the EU or imported from outside the EU<br />A) Minimum biodiversity requirements: biofuels must not be produced from:<br />raw materials obtained from land classified, in or after January 2008 (whether or not the land still has this status), as:<br /><br /><strong><span style="color:#33ff33;">undisturbed</span></strong> forests or biodiverse grassland; <em><strong>or</strong></em><br /><br /><strong><span style="color:#33ff33;">areas designated for nature protection purposes</span></strong> (designated as such by the states themselves), unless it can be shown that the production of raw material does not interfere with those purposes.<br /><br />[R]aw materials obtained from land that had the status of wetlands or continuously forested areas in January 2008 but no longer has this status (since these lands have "high carbon stock" and therefore it is doubtful whether converting them would have an overall positive effect of reducing GHG emissions).<br /><br />B) <span style="color:#ff6600;"><strong><em>Additional requirements for biofuel raw material produced only in the EU</em></strong><br /></span>Biofuel raw material must meet "cross-compliance" environmental and agricultural rules and principles laid down in other EU Environmental Directives.<br /><br /><br />There exists a specific disincentive for crops from EU land that is prone to high nitrous oxide emissions from cultivation.<br /><br /><br /><strong><span style="font-size:130%;">Demonstrating compliance<br /></span></strong><br /><br />Member States will need to put measures in place to verify that the target of 10% biofuels is reached and that these biofuels meet the sustainability requirements. Since Member States already require reporting of fuel-related information by fuel suppliers through the fuel excise duty system, the Commission proposes extending this arrangement to cover biofuel aspects, rather than establish a separate stand-alone administrative structure.<br /><br /><br />In order to demonstrate compliance with the environmental criteria, fuel suppliers will have to make claims about matters including: (i) geographical location of the land on which the raw materials for biofuel production are cultivated, (ii) the nature of the raw material used, and (iii) the energy source used in the biofuel production process. The draft directive proposes putting into place a procedure for the mutual acceptance by Member States of verification schemes that meet adequate standards of accuracy, reliability and fraud resistance. Once such a verification scheme is in place in a Member State, all other Member States would be required to accept evidence from it as conclusive proof of compliance with the environmental criteria.<br /><br /><br />The draft Directive also allows the use of a so-called "Mass balance system" which allows consignments of raw material or biofuel with different environmental characteristics to be mixed, provided that:<br /><br />The environmental characteristics of each consignment of raw material or biofuel that is added to the physical pool are described in associated documentation; it is ensured that the withdrawn quantity of raw material or biofuel – with which this documentation is associated – does not exceed the added quantity.<br /><br /><br />Compliance schemes in non-EU countriesIn order to reduce the administrative burden on biofuels from non-EU countries, the Commission can decide that other certification schemes give reliable proof of compliance with the environmental criteria. In particular, the Commission may, provided that the scheme in question meets adequate standards of reliability, transparency and independent auditing, determine that:<br /><br /><br />bilateral and multilateral agreements between the EU and non-EU countries demonstrate that biofuels produced from raw materials cultivated in those countries comply with the land use criteria;<br /><br />voluntary national or international schemes setting standards for the production of biomass products contain accurate data for a GHG emission savings of at least 35% or demonstrate that consignments of biofuel comply with the land use criteria; and<br />national, multinational or international schemes to measure GHG emission savings contain accurate data for GHG emission savings of 35%.<br /><br /><br />If the Commission gives its approval to these schemes, the Member States will have to accept certification by these schemes as proof of compliance with the environmental criteria of the biofuels directive (in stead of requiring each supplier to provide evidence of compliance with the environmental criteria).<br /><br /><br /><strong><span style="font-size:180%;"><span style="color:#ff0000;">Questions raised about the compatibility of the environmental criteria with WTO law</span><br /></span></strong><br /><br /><strong><em><span style="font-size:130%;color:#ff0000;">Questions have been raised as to whether the Commission's attempt to distinguish between sustainable and unsustainable biofuels is contrary to the principles of free trade laid down in the WTO rules, and in particular those of the General Agreement on Trade and Tariffs (GATT) and the Agreement on Technical Barriers to Trade (TBT).</span></em></strong><br /><br /><br /><strong><span style="font-size:130%;color:#ffff00;">Malaysia and Indonesia have already raised concerns that environmental criteria for biofuels may force them to change their production practices in order to continue exporting to the EU. Brazil is also concerned that environmental criteria may have an impact on its exports of soy-based biofuel to the EU.</span></strong><br /><br /><br />The key points of WTO law that will arise in relation to the proposed rules on biofuels are:<br /><br /><br />Whether making a distinction between biofuels on the basis of the production process, as opposed to the inherent characteristics of the product violates <strong><span style="font-size:130%;color:#ffcc33;">Article XI of GATT, which prohibits quantitative restrictions on imports.</span></strong> According to the GATT panel report in the Tuna-Dolphin dispute, Article XI:1 GATT does not permit different treatment of products based on their method of production as opposed to their properties as products for consumption.<br /><br /><br />Whether <strong><span style="font-size:130%;color:#ffcc00;">less favourable treatment of non-EU biofuel</span></strong> that represents only 34% GHG emissions savings <span style="font-size:130%;color:#ffcc00;"><strong>violates Article I or III of GATT because it would have the effect of discriminating against imports from certain non-EU countries</strong></span>.<br /><br /><br /><strong><span style="font-size:130%;color:#ffcc00;">Whether possible violations of these provisions could be justified on the basis of Article XX of GATT </span></strong>which allows exceptions to Articles I, III and XI if the relevant measures are (i) "necessary to protect human, animal or plant life or health" or if the measures "relate to the conservation of exhaustible natural resources"; and (ii) do not constitute a means of arbitrary discrimination or a disguised restriction on international trade.<br /><br /><br /><strong><span style="font-size:130%;color:#ffcc00;">Whether the environmental criteria of the draft Directive comply with Article 2(2) of the Agreement on Technical Barriers to Trade</span></strong>, which requires that <strong><em><span style="font-size:130%;color:#ffcc00;">technical regulations "shall not be more trade-restrictive than necessary to fulfil a legitimate objective".</span></em></strong><br /><br /><strong><span style="color:#33ff33;">In that context, the following questions will likely arise:</span></strong><br /><br /><strong><span style="color:#33ff33;">Whether the measures are "necessary" to protect the environment and whether they are the least trade-restrictive measure available to do so.<br /></span></strong><br /><span style="color:#33ff33;"><strong>Whether the administrative burden on foreign producers is not higher than for domestic producers and whether the EU should pursue good faith negotiations with the exporting states prior to imposing its own unilateral measures (as was suggested in the Shrimp – Turtle dispute).</strong> </span><br /><span style="color:#33ff33;"></span><br /><strong><span style="color:#33ff33;">Whether the EU's measures would be more proportionate, and, therefore, less trade restrictive, if they provided for a sliding scale of GHG emissions savings values (rewarding biofuels on the basis of the level of GHG emissions savings they achieve, as opposed to a system that gives a biofuel with 35% savings the same treatment as a biofuel representing 70% savings, while effectively preventing the marketing of a biofuel representing 34% emissions savings).<br /></span></strong><br /><strong><span style="color:#33ff33;"><br /><br /></span></strong><strong><span style="color:#33ff33;"></span></strong><strong><span style="color:#33ff33;"></span></strong>ITSSD Charitable Missionhttp://www.blogger.com/profile/00790887154748866904noreply@blogger.com0tag:blogger.com,1999:blog-7037944389322160928.post-83414062367080921462008-05-05T09:02:00.000-07:002008-05-05T09:23:24.639-07:00U.S. WTO Submission - 'Determining the Need to Regulate' - A Document Even the 110th Congress Can Learn From<a href="http://www.news.tut.kiev.ua/img/news/wto_october_34923_340x260.jpg"><img style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 200px; CURSOR: hand" alt="" src="http://www.news.tut.kiev.ua/img/news/wto_october_34923_340x260.jpg" border="0" /></a><br /><div><a href="http://www.wtocenter.org.tw/SmartKMS/fileviewer?id=93847">http://www.wtocenter.org.tw/SmartKMS/fileviewer?id=93847</a><br /><br /><br /><strong><span style="font-size:130%;">World Trade Organization</span></strong><br /><br /><br /><strong><span style="font-size:130%;">Committee on Technical Barriers to Trade</span></strong><br /><br /><br /><strong><span style="font-size:130%;">G/TBT/W/285</span></strong> (March 19, 2008)<br /><br /><br /><strong><span style="font-size:130%;">DETERMINING THE NEED TO REGULATE</span></strong><br /><br /><strong>Communication from the United States</strong><br /><strong></strong><br /><strong></strong><br />I. INTRODUCTION<br /><br /><br />1. In its successive reviews of the World Trade Organization Agreement on Technical Barriers to Trade (TBT Agreement), the TBT Committee has highlighted the importance and relevance of “good regulatory practice” as a tool <strong><span style="font-size:180%;color:#ff0000;">for preventing the creation of unnecessary obstacles to international trade.</span></strong> <strong><span style="font-size:130%;">From the U.S. perspective, an important component of good regulatory practice is the effective use of processes and analytic tools for determining the need to regulate. </span></strong><strong><em>These processes and tools rely significantly on the commonly accepted principles for good regulatory practice originally set forth in the 1995 OECD Recommendation on Improving the Quality of Government Regulation and discussed in an earlier communication from the United States to the TBT Committee on “Good Regulatory Practice.”</em></strong>[1]<br /><br /><br />2. Discussions of good regulatory practice address issues that go beyond the scope of the TBT Agreement; nevertheless, <strong><em>the principles are relevant to the development and application of standards, technical regulations, and conformity assessment procedures</em></strong>. The successful application of good regulatory practices should reinforce, in a domestic context, <span style="font-size:180%;color:#ff0000;"><strong>the goal of preventing unnecessary obstacles to international trade</strong></span>.<br /><br /><br />3. This U.S. submission responds to the Committee’s invitation for the submission of papers and provides an overview and summary of the key elements that are part of the U.S. federal regulatory approach for determining when it is necessary to regulate.<br />[1] G/TBT/W/258, 26 October 2005.<br /><br /><br />A. Background<br /><br />B. Identification of the Need for a Regulation<br /><br />C. Consideration of Legal Requirements<br /><br />D. Consideration of Alternatives<br /><br />E. Risk Assessments[11]<br /><br />F. Cost-Benefit Analyses[14]<br /><br />G. Continual Reassessment of Need During the Regulatory Process<br /><br /><br />H. <strong>The Logic of the Decision</strong><br /><br /><br />1. During the preparation or review of a draft regulation, there are a number of questions that should be asked to ensure that the regulatory decision is justified. This process can be somewhat like a peer review, with questions being asked about the basis for assumptions or the source of data, about legal authority or policy judgments, etc. Many of these questions reflect the disciplines and principles of the WTO agreements, particularly the TBT Agreement.<br /><br /><br />The basic, general questions that should be addressed, with some possible follow-up questions, include:<br /><br /><br />(a) Is the problem or policy goal clear? For example, for a safety regulation, why do private markets provide less than the optimal amount of safety? Have the agency officials made the objective clear enough to ensure that it will be met by the regulatory action? Are they sure that a regulation is being issued to address a problem that really exists?<br /><br /><br />(b) Will the regulatory action address the problem? If the objective is to make bathrooms in a building accessible to disabled persons, for example, will the regulation require that the bathroom be accessible, but not that the building itself be accessible? If you require that drug or food labels include information for the consumer to ensure they do not use drugs or food that may be harmful, would tests show that the average person would not understand the label? If you require seats on aircraft that will withstand greater crash forces, will the aircraft floor be strong enough to hold the seat in place when subject to those forces?<br /><br /><br />(c) Do the data and the analyses support the decision? Are the costs and market distortions minimized while the benefits are maximized? Are data sources reliable? Are the ranges of possibilities so broad that the basis of the decision is questionable?<br /><br /><br />(d) Is the action sensible? Is it possible that a mistaken decision could cause serious harm to the marketplace or adversely affect health, safety, or the environment?<br /><br /><br />(e) Are the assumptions reasonably explained and supported? Are appropriate sensitivity analyses conducted to respond to challenges to assumptions?<br /><br /><br />(f) Does the regulation comply with legal requirements, including international agreements (including the WTO agreements, bilateral and regional free trade agreements, and mutual recognition agreements) to which the United States is a party, statutes (including implementing legislation for such agreements), executive orders, and regulations?<br /><br /><br />(g) Are conflicts or other effects on achieving other objectives and requirements explained and justified? Assuming, for example, that a regulation is necessary, in assessing alternatives has there been any consideration of how other governments have chosen to regulate in this particular area? Have there been any consultations with foreign governments?<br /><br /><br />(h) <strong><em>Could the regulatory action have unintended consequences? Could the increase in costs for a product or service as a result of a required safety improvement cause consumers to choose alternatives even less safe than the product or service before it was improved?</em></strong> Because of costs, would a company have to forego one safety protection in order to provide another required protection? For example, would consumers choose a less safe way to travel, if regulations raised the cost of another mode of transportation? <strong><em>Would patients refuse to take a necessary drug, because a required warning about a very minor risk associated with the medication scared them? </em></strong><br /><br /><br />(i) <strong>Will the action promote or hinder innovation, competition, trade, and investment?</strong> If the regulation does not reference or incorporate performance standards, specifically internationally-developed standards, if available, why not? Does the regulation require the use of U.S. certification agencies or laboratories and, if so, why? Will foreign businesses have a hard time complying because the regulation is based on U.S. industry manufacturing processes?<br /><br /><br />(j) Are there reasonable alternatives and explanations for their rejection?<br /><br /><br />(k) Is the regulation clear, practical, and easily enforced? Would a regulatory alternative that is more acceptable to the regulated community but establishes a slightly lower level of protection end up providing more protection if regulated entities were more likely to comply with it? Or if it were easier for the industry to comply?<br /><br /><br />III. <strong>CONCLUSION </strong><br /><br /><br />33. A thoughtful, open, and transparent process for examining the need for regulation leads to better decisions. Well-done analyses are exceptionally valuable tools in this decision-making process. They have convinced advocates of one position or another to change their minds about a particular action.<br /><br /><br />34. If the process is used correctly, there will be better participation in the process by the public and other governments, and regulations are much less likely to create trade barriers or other problems.<br /><br /><br /><strong>FOOTNOTES</strong><br /><strong></strong><br /><strong></strong><br />[1] G/TBT/W/258, 26 October 2005.<br /><br /><br />[11] See f.n. 3, supra. See also, Treasury and General Government Appropriations Act for FY 2000, Pub. L No. 106-554; § 515 (“Quality, Objectivity, Utility, and Integrity of Information” and OMB “Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies” (2002). {[3] See “Updated Principles for Risk Analysis” (December 19, 2007 memorandum from the Administrator, Office of Information and Regulatory Affairs (OIRA), Office of Management and Budget (OMB), and the Associate Director and Deputy Director for Science, Office of Science and Technology Policy; OMB regulatory documents are generally available at http://www.whitehouse.gov/ omb/inforeg/regpol.html).}<br /><br /><br />[14] See f.n. 4, supra. {[4] See OMB Circular No. A-4, “Regulatory Analysis” (2003).}</div>ITSSD Charitable Missionhttp://www.blogger.com/profile/00790887154748866904noreply@blogger.com0tag:blogger.com,1999:blog-7037944389322160928.post-35061830469505866202008-05-04T10:54:00.000-07:002008-05-04T12:10:15.763-07:00Democratic Party Trade Protectionism Rhetoric Reveals Promises That Cannot Be Delivered: Unions Beware!<a href="http://167.206.188.34:2000/article/wtMostRead/idUKN0563245720080305?virtualBrandChannel=10112">http://167.206.188.34:2000/article/wtMostRead/idUKN0563245720080305?virtualBrandChannel=10112</a><br /><br /><br /><strong><span style="font-size:130%;">NAFTA reform just the start - U.S. trade critics</span></strong><br /><br /><br />By Doug Palmer<br /><br /><br />March 5, 2008<br /><br /><a href="http://www.theodoresworld.net/pics/0906/democrats_foreign_policy.jpg"><img style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 402px; CURSOR: hand; HEIGHT: 415px" height="199" alt="" src="http://www.theodoresworld.net/pics/0906/democrats_foreign_policy.jpg" border="0" /></a>WASHINGTON (Reuters) - <strong><span style="font-size:130%;color:#33ff33;">The next U.S. president needs to fundamentally redirect U.S. trade policy to preserve manufacturing jobs and reduce the huge trade deficit -- not just tinker with the North American Free Trade Agreement, critics of U.S. trade deals said on Wednesday</span></strong>.<br /><br /><br /><strong><em>"We need to change the whole discussion about investment, about subsidies, about enforcement of trade laws," said Leo Gerard, president of the United Steelworkers union. "How does any country continue to prosper when it's accumulating an average annual trade deficit of about $700 billion per year?"<br /></em></strong><br /><br />On Tuesday, Sen. Hillary Clinton revived her chances of winning the Democratic party's presidential nomination by beating her rival Sen. Barack Obama in three of the four states that held contests that day.<br /><br /><br />In recent weeks, <strong><span style="font-size:130%;">both Clinton and Obama have increased their criticism of NAFTA and said they could pull the United States out of the pact if Mexico and Canada did not agree to renegotiate it.</span></strong><br /><br /><br /><strong><span style="font-size:180%;">[EVERYONE KNOWS THAT THEY ARE NOT SPEAKING THE TRUTH]</span></strong><br /><br /><br />The two candidates have talked mainly about adding enforceable labor and environmental provisions to the pact.<br /><br /><br /><strong><span style="font-size:180%;">[LABOR & ENVIRONMENTAL PROVISIONS WILL DO NOTHING TO KEEP JOBS IN AMERICA, WHEN THE BASIC COSTS OF LABOR ARE SO MUCH LESS TO BEGIN WITH. CLINTON & OBAMA PROMISES OF ENFORCEMENT OF THESE TYPES OF PROVISIONS WILL ONLY ANGER OUR TRADING PARTNERS AND FURTHER ALIENATE THE U.S. FROM THE WORLD, EXCEPT, PERHAPS, FROM THE EUROPEAN UNION, WHICH FAVORS SUCH NUANCED TYPES OF TRADE PROTECTIONISM. UNIONS SHOULD BEWARE OF DEMOCRATIC PARTY PROMISES THAT CANNOT BE DELIVERED.]</span></strong><br /><br /><br /><br /><br /><a href="http://blog.americanfeast.com/images/Public%20Citizen%20Logo.gif"><img style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 200px; CURSOR: hand" alt="" src="http://blog.americanfeast.com/images/Public%20Citizen%20Logo.gif" border="0" /></a><strong><em>But Lori Wallach, director of Public Citizen's Global Trade Watch, said it was more important in the short term to change the agreement's investment provisions because they encourage U.S. companies to move jobs to Mexico</em></strong>.<br /><br /><br /><strong><em>Similar reforms are needed in other trade agreements, including the one that set the terms of China's entry into the World Trade Organization in 2001, she said.</em></strong><br /><br /><br /><span style="font-size:180%;"><strong>[MS. LORI WALLACH IS ANTI-INDUSTRY, ANTI-FREE MARKET, ANTI-PRIVATE PROPERTY, AS THE ITSSD UNFORTUNATELY FOUND OUT WHILE ATTENDING SEVERAL U.S. GOVERNMENT STAKEHOLDER MEETINGS HELD IN WASHINGTON, DC IN THE PAST. SHE IS 'SHORT' ON BUSINESS & ECONOMICS KNOWLEDGE, BUT 'LONG' ON EMOTION AND RHETORIC.]</strong><br /></span><br /><br /><strong><em>Wallach blamed NAFTA</em></strong>, China's WTO accession and other trade agreements for many of the roughly 3 million manufacturing jobs the United States has lost since 2000.<br /><br /><br /><strong><span style="font-size:180%;">[UNFORTUNATELY, MS. WALLACH IS OUT OF TOUCH WITH REALITY. U.S. MANUFACTURERS FROM NUMEROUS INDUSTRY SECTORS HAVE BEEN FALLING OVER EACH OTHER TO MOVE MANUFACTURING JOBS & INVESTMENTS OVERSEAS, ESPECIALLY TO CHINA, SINCE THE MID-1990'S WHEN THE WORLD TRADE ORGANIZATION WAS CREATED. THE WTO PROVIDED FOR THE EVENTUAL PHASE-OUT (OVER A TEN YEAR PERIOD SPANNING 1995-2004) OF IMPORT QUOTAS, INCLUDING U.S. IMPORT QUOTAS IMPOSED ON CHINESE TEXTILES, WHICH FINALLY FELL TO ZERO, PURSUANT TO THE WTO AGREEMENT ON TEXTILES AND CLOTHING (ATC), ON DECEMBER 31, 2004. THE U.S. IS STILL PERMITTED, BY A BILATERAL AGREEMENT REACHED WITH CHINA DURING NOVEMBER 2005, TO IMPOSE QUOTA RESTRICTIONS ON CERTAIN CHINESE TEXTILE EXPORTS UNTIL DECEMBER 31, 2008. SEE: <a href="http://www.ustr.gov/assets/Document_Library/Fact_Sheets/2005/asset_upload_file813_8339.pdf"><span style="font-size:130%;">http://www.ustr.go</a><a href="http://www.ustr.gov/assets/Document_Library/Fact_Sheets/2005/asset_upload_file813_8339.pdf">v/assets/Document_Library/Fact_Sheets/2005/asset_upload_file813_8339.pdf</span></a> CHINA'S VIRTUAL MONOPOLIZATION OF THE WORLD TEXTILE MARKET HAS EVEN PLACED TURKEY'S FORMIDABLE TEXTILE INDUSTRY IN A NONCOMPETITIVE POSITION. PERHAPS INDIA POSES THE ONLY REAL CHALLENGE. WHILE RICARDIAN SPECIALIZATION PROVIDES THE WORLD WITH AN OVERALL BENEFIT - AFFORDABLE TEXTILES, THERE WILL BE LOSERS, NAMELY LABOR, IN MOST OTHER COUNTRIES. </span></strong><br /><strong><span style="font-size:100%;"></span></strong><br /><strong><span style="font-size:100%;"></span></strong><br /><strong><span style="font-size:180%;">CHINA'S ACCESSION TO THE WTO DURING DECEMBER 2001 SOLIDIFIED CHINA'S PLACE AMONG THE WORLD'S MAJOR TRADING NATIONS, AND THUS BEGAN THE PROCESS OF SLOWLY OPENING UP CHINA'S MARKETS TO FOREIGN INVESTMENT. IF ANYTHING, CHINA MUST BE PREVENTED FROM MANIPULATING ITS FOREIGN INVESTMENT RULES AS DISGUISED MARKET ACCESS BARRIERS. IN ADDITION, CHINA MUST BE HELD TO STRICT WTO STANDARDS AS CONCERNS ITS INSUFFICIENT PROTECTION OF U.S. INTELLECTUAL PROPERTY RIGHTS. SO, YES, MS. WALLACH, THERE IS A NEED FOR ENFORCEMENT OF WTO RULES TO SAVE U.S. JOBS & KNOW-HOW. <em>HOWEVER, ENFORCING WTO LABOR OR ENVIRONMENTAL RULES WILL NOT BRING BACK U.S. JOBS</em>.]</span></strong><br /><br /><br />The Bush administration -- noting that U.S. manufacturing output and exports set records last year -- argues that increased worker productivity and advances in manufacturing technology account for many of the lost jobs.<br /><br /><br />Also, <strong>total U.S. employment has grown 24 percent since Congress approved NAFTA in 1993, and U.S. unemployment has averaged 5.1 percent since the pact went into force compared to 7.1 percent in 1980 to 1993, the U.S. Trade Representative's office said in a NAFTA fact sheet.<br /></strong><br /><br />The Steelworkers' Gerard called USTR's statistics <strong><em>"bullshit"</em></strong> because they gloss over real job losses in <strong>key industrial sectors such as steel and autos</strong>.<br /><br /><br /><strong><span style="font-size:180%;">[U.S. AUTO MANUFACTURERS UNFORTUNATELY DO NOT MAKE QUALITY PRODUCTS THAT CAN EFFECTIVELY COMPETE WITH THE LIKES OF TOYOTA, NISSAN & HONDA, LET ALONE, KIA & HUNDAI. THERE ARE NO CHINESE MANUFACTURED CARS EXPORTED TO THE U.S. DUE TO MUCH LOWER BASIC LABOR COSTS IN INDIA & CHINA, THE U.S. STEEL INDUSTRY BEGAN MIGRATING THERE YEARS AGO. THE DEMOCRATS ONLY NEED LOOK AT FORMER U.S. STEEL TOWNS SUCH AS PITTSBURGH TO SEE HOW JOBS CAN BE CREATED WITHOUT TRADE PROTECTIONISM. PITTSBURG HAS SINCE RECREATED ITSELF AS A HI-TECHNOLOGY RESEARCH & START-UP MECCA. THE PROBLEM IS NOT ONLY A CHINESE PROBLEM. IT IS ALSO AMERICAN RELUCTANCE TO ADAPT TO CHANGE.]</span></strong><br /><br /><br /><strong><span style="font-size:130%;">NAFTA ALSO MEANS CHINA</span></strong><br /><br /><a href="http://www.ohiomm.com/blogs/bok/wp-content/uploads/boktrans/061019boklores.jpg"><img style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 401px; CURSOR: hand; HEIGHT: 357px" height="151" alt="" src="http://www.ohiomm.com/blogs/bok/wp-content/uploads/boktrans/061019boklores.jpg" border="0" /></a><br /><span style="color:#3333ff;"><strong><em>The next president also needs to take a tougher stance on trade with China</em></strong>, which is responsible for a large portion of U.S. trade gap, said, <strong><span style="font-size:180%;">Sen. Sherrod Brown, Ohio Democrat</span></strong>.<br /></span><br /><br />"In my state and in much of middle class America, NAFTA stands for trade policy generally," Brown said.<br /><br /><br /><strong><em>Many lawmakers believe Beijing deliberately undervalues its currency to give its companies a trade advantage.<br /></em></strong><br /><br /><strong><span style="font-size:130%;color:#3333ff;">Brown said he and other freshmen Democratic senators would continue pushing this year for legislation aimed at forcing China to revalue its currency, and have drawn a line in the sand against approving a free trade pact with Colombia.<br /></span></strong><br /><br /><strong><span style="font-size:180%;">[BROWN & OTHER DEMOCRATS ARE PLAYING POLITICAL ROULETTE HERE. THIS IS A FOOLISH GAME OF LOSE-LOSE. CONGRESSIONAL DEMOCRATS SIMPLY WILL NOT ADMIT TO THEIR LIBERAL CONSTITUENCIES THAT THEY CANNOT BRING AMERICAN JOBS BACK. THIS IS NOTHING MORE THAN VOTE PANDERING.]</span></strong><br /><br /><br />In a separate speech, <strong><em><span style="font-size:130%;">U.S. Trade Representative Susan Schwab </span></em></strong>said NAFTA had been good for all three countries and warned reopening it could backfire on the United States.<br /><br /><br /><strong><em><span style="font-size:130%;">"The notion that you can reopen an agreement like NAFTA and not expect Canada or Mexico to ask for things from us that they didn't get last time" is unrealistic, she said.<br /></span></em></strong><br /><br />Instead of preserving U.S. jobs, changing the pact could put at least some jobs at risk, Schwab said.<br /><br /><br /><span style="font-size:180%;color:#3333ff;"><strong>She described Clinton and Obama's sparring over who was toughest on NAFTA as a "rhetorical race to the bottom."</strong></span>ITSSD Charitable Missionhttp://www.blogger.com/profile/00790887154748866904noreply@blogger.com0tag:blogger.com,1999:blog-7037944389322160928.post-75920716185581784902008-04-03T15:29:00.000-07:002008-04-04T20:16:15.557-07:00Congressman Rangel and Other House Ways & Means Committee Majority Members Provide Political Cover for Clinton & Obama to Promote Trade Protectionism<a href="http://waysandmeans.house.gov/">http://waysandmeans.house.gov/</a><br /><br /><br /><strong><span style="font-size:130%;">U.S. Must Enforce Laws to Break Down Trade Barriers</span></strong><br /><br /><br />March 28, 2008<br /><br /><br />Committee on Ways and Means, U.S. House of Representatives<br /><br /><br />WASHINGTON, DC – <strong><span style="font-size:130%;color:#3333ff;">Senior House Democrats today sent a letter to President Bush, renewing their call for stricter enforcement of U.S. rights under trade agreements</span></strong>. The letter was sent in anticipation of the Administration’s annual "National Trade Estimate" (NTE) report listing barriers to U.S. exports.<br /><br /><a href="http://blogs.indystar.com/varvelblog/09232006.jpg"><img style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 406px; CURSOR: hand; HEIGHT: 209px" height="141" alt="" src="http://blogs.indystar.com/varvelblog/09232006.jpg" border="0" /></a> <strong>[The 2008 National Trade Estimate (NTE) Report is accessible here: </strong><strong></strong><br /><a title="blocked::http://www.ustr.gov/assets/Document_Library/Reports_Publications/2008/2008_NTE_Report/asset_upload_file365_14652.pdf" href="http://www.ustr.gov/assets/Document_Library/Reports_Publications/2008/2008_NTE_Report/asset_upload_file365_14652.pdf"><strong>http://www.ustr.gov/assets/Document_Library/Reports_Publications/2008/2008_NTE_Report/asset_upload_file365_14652.pdf</strong></a><strong> ].</strong><br /><br />In their letter, the Democrats expressed hope that the Administration would move past merely inventorying the systemic, recurring trade barriers that U.S. companies face, and, and <strong><em><span style="font-size:130%;color:#ff0000;">to take a positive step forward and begin enforcing U.S. rights more vigorously." </span></em></strong><br /><br /><br /><strong><span style="font-size:180%;color:#33ff33;">In the Democrats’ view, stricter enforcement of trade laws would avoid further growth of the U.S. trade deficit and unsustainable levels of foreign-owned U.S. debt.</span></strong><br /><br /><br />In 2007, the U.S. trade deficit was $711.6 billion – the third highest in history and a shocking five percent of the U.S. economy. Over the past six years alone, foreign-owned debt has more than doubled, currently standing at $2.4 trillion or 17 percent of U.S. gross domestic product (GDP). As noted in the letter, the Bush Administration has accumulated more debt to foreign governments and individuals than all previous administrations combined.<br /><br /><br /><strong>The Democrats' letter is accessible here: </strong><a href="http://waysandmeans.house.gov/media/pdf/110/cbr%20potus.pdf"><strong>http://waysandmeans.house.gov/media/pdf/110/cbr%20potus.pdf</strong></a><strong> .</strong><br /><br /><br /><strong><span style="font-size:130%;color:#ff6600;">[A REVIEW OF THE POINTS MADE IN THIS LETTER WILL REVEAL CERTAIN TRUTHS, THEY BEING: 1) THE ADMINISTRATION ARGUABLY HAS FAILED TO PROTECT U.S. PROPERTY RIGHTS BY NOT VIGOROUSLY ENFORCING WORLD TRADE ORGANIZATION (WTO) RULES AGAINST VIOLATING WTO MEMBER NATIONS; 2) THE U.S. TRADE DEFICIT NO LONGER REFLECTS STRICTLY LOW-COST, VALUE-ADDED IMPORTS - RATHER IT NOW INCLUDES ALSO HIGH TECHNOLOGY IMPORTS DUE TO CORPORATE OUTSOURCING/ OFFSHORING; AND 3) THE RESULTING TRADE DEFICITS FROM NONENFORCEMENT OF WTO LAWS AND THE GROWING HI-TECHNOLOGY IMPORTS ARGUABLY CREATES MORE FOREIGN-OWNED U.S. DEBT AS U.S. CITIZENS BUY MORE & MORE OF PRODUCTS DESIGNED, DEVELOPED & MANUFACTURED FROM OVERSEAS SOURCES ON CREDIT. ]</span></strong><br /><span style="font-size:130%;"></span><br /><span style="font-size:130%;"></span><br /><span style="font-size:130%;color:#ffff00;"><strong>[AND, ARGUABLY, THE USTR SHOULD HAVE LONG AGO BEGUN CONSULTATIONS WITH VARIOUS U.S. KEY TRADING PARTNERS, AS A PRESAGE TO COMMENCING A POSSIBLE WTO ACTION AGAINST PARTICULAR WTO MEMBER GOVERNMENTS IF U.S. CONCERNS ABOUT MARKET ACCESS TRADE BARRIERS ARE NOT ADEQUATELY ADDRESSED. </strong></span><br /><span style="font-size:130%;color:#ffff00;"><strong></strong></span><br /><span style="font-size:130%;color:#ffff00;"><strong></strong></span><br /><span style="font-size:130%;color:#ffff00;"><strong>THE QUESTION, HOWEVER, IS WHICH KEY TRADING PARTNERS HAVE IMPOSED THE MOST EXTENSIVE, SYSTEMIC AND DAMAGING TRADE BARRIERS AGAINST CRITICAL U.S. PRODUCTS AND PROCESSES, OR HAVE DIMINISHED THE VALUE OF OR OTHERWISE EXPROPRIATED KEY U.S. ASSETS UNDERLYING HI-TECHNOLOGIES WHICH SERVE AS THE CORE OF AMERICA'S 21ST CENTURY ECONOMY?? HERE IS WHERE THE RANGEL REPORT GOES ASTRAY <span style="font-size:180%;">AND IS ARGUABLY DISINGENUOUS</span>. THE RANGEL LETTER FOCUSES ON THE FOLLOWING U.S. TRADING PARTNERS: CANADA, CHINA, THE EUROPEAN UNION, JAPAN, KOREA, MEXICO RUSSIA AND THE UNITED KINGDOM].</strong></span><br /><strong><span style="color:#ffff00;"></span></strong><br /><br /><strong><span style="font-size:130%;color:#33ff33;">[IT IS INTERESTING TO SEE IN THE RANGEL LETTER THAT WHILE THE EUROPEAN UNION (EU) IS INCLUDED AS A KEY U.S. TRADING PARTNER WITH WHICH THE USTR SHOULD ENGAGE IN CONSULTATIONS TO PROTECT U.S. RIGHTS, NOT MUCH IS MENTIONED ABOUT THE MANY VERY EXPENSIVE AND COMPLEX NON-TARIFF ENVIRONMENTAL AND HEALTH (SUSTAINABLE DEVELOPMENT)-RELATED SANITARY AND PHYTOSANITARY, LABELING & TRACEABILITY, PRE-MARKET REGISTRATION, CONFORMITY ASSESSMENT REGULATORY-BASED TECHNICAL BARRIERS TO TRADE WHICH THE EU HAS ADMITTEDLY ERECTED AGAINST THE U.S. SINCE AT LEAST 2002. THESE REGULATORY RESTRICTIONS WHICH DOUBLE AS DISGUISED TRADE BARRIERS, HAVE AFFECTED BILLIONS OF DOLLARS $$$$ OF U.S. EXPORTS, AS WELL AS, DIMINISHED THE EXERCISE AND VALUE OF U.S. PROPERTY RIGHTS. CONSEQUENTLY, THEY HAVE RESULTED IN A SIGNIFICANT TRADE DEFICIT WITH EUROPE, WHICH THE RANGEL REPORT FAILS TO MENTION. </span></strong><br /><strong><span style="font-size:130%;color:#33ff33;"></span></strong><br /><strong><span style="font-size:130%;color:#33ff33;"></span></strong><br /><strong><span style="font-size:130%;color:#33ff33;">APPARENTLY, THERE IS A 'GOOD' REASON FOR THIS. MR. RANGEL AND HIS COLLEAGUES ARE UNLIKELY TO ADMIT IT, BUT THEY WISH TO ADOPT THESE VERY SAME EXPENSIVE AND COMPLEX REGULATORY REQUIREMENTS HERE IN AMERICA SO THAT AMERICAN BUSINESS ARE PLACED ON THE SAME COSTLY FOOTING AS THEIR EUROPEAN COUNTERPARTS. THIS IS WHAT THE DEMOCRATS AND THE EUROPEANS REFER TO AS 'LEVELING THE PLAYING FIELD' OR TRANSATLANTIC 'REGULATORY HARMONIZATION'. PERHAPS, THIS IS LARGELY WHY CONGRESSMAN RANGEL AND HIS COLLEAGUES HAVE EFFECTIVELY GIVEN EUROPE A 'PASS'.</span></strong><br /><strong><span style="font-size:130%;color:#33ff33;"></span></strong><br /><strong><span style="font-size:130%;color:#33ff33;"></span></strong><br /><strong><span style="font-size:130%;color:#33ff33;">INDEED, REGULATORY RESTRICTIONS NOW LOOK POLITICALLY PALATABLE TO THE DEMOCRATIC PARTY PRESIDENTIAL CANDIDATES AS A 'QUICK FIX' FOR THE CURRENT TRADE DEFICITS, EVEN THOUGH THEY KNOW FULL WELL THAT EARLY 20TH CENTURY HISTORY HAS SHOWN HOW TRADE PROTECTIONISM BY ONE COUNTRY CAN DEVOLVE INTO A SERIES OF SIMILAR PRACTICES EMPLOYED BY OTHER NATIONS THAT RESULT IN MORE & MORE TRADE PROTECTIONIST DEVICES BEING ERECTED. IN FACT, THE TRADE PROTECTIONISM OF THAT ERA WAS PARTLY RESPONSIBLE FOR THE EVENTS THAT LED TO WORLD WAR II!!! THE INTERNATIONAL TRADING SYSTEM WAS CREATED TO PREVENT THAT FROM EVER OCCURRING AGAIN.</span></strong><br /><strong><span style="font-size:130%;color:#33ff33;"></span></strong><br /><br /><span style="color:#ff6600;"><strong><span style="font-size:130%;">[IN ADDITION, THE RANGEL LETTER FAILS TO MENTION EITHER BRAZIL OR THAILAND, TWO OF THE LEADING NATIONS RESPONSIBLE FOR TRYING TO CHANGE THE INTERNATIONAL LEGAL PARADIGM FOR INTELLECTUAL PROPERTY - PATENTS, COPYRIGHTS & TRADE SECRETS, SO THAT THEY MAY ACQUIRE U.S. SCIENCE & TECHNOLOGICAL KNOW-HOW AT CONCESSION-RATE PRICES!!! DOCUMENTARY EVIDENCE DEMONSTRATES HOW THESE TWO NATIONS HAVE, FOR AT LEAST 8 YEARS, LED AN INTERNATIONAL GROUP OF DEVELOPING COUNTRIES, WITH THE ASSISTANCE OF WELL-FUNDED HEALTH & INFORMATION ACTIVIST GROUPS, TO CHANGE INTERNATIONAL TRADE, INTELLECTUAL PROPERTY AND HEALTH LAW. THEY HAVE UTILIZED A NUMBER OF DIFFERENT UNITED NATIONS AGENCIES & ORGANIZATIONS TO CONVERT PRIVATE INTELLECTUAL PROPERTY RIGHTS INTO THE PUBLIC INTERNATIONAL GOODS OF FREE HEALTHCARE AND FREE DIGITAL KNOWLEDGE. BRAZIL AND THAILAND HAVE WORKED TOGETHER IN THE WTO, WORLD HEALTH ORGANIZATION (WHO), WORLD INTELLECTUAL PROPERTY ORGANIZATION (WIPO), THE UN COMMISSION ON HUMAN RIGHTS (UNCHR), THE UN DEVELOPMENT PROGRAM (UNDP) AND UN EDUCATION, SCIENCE & CULTURAL ORGANIZATION (UNESCO). IN FACT, BOTH BRAZIL AND THAILAND HAVE, WITHOUT LEGAL JUSTIFICATION, ISSUED COMPULSORY LICENSES AGAINST U.S.-OWNED DRUG PATENTS, WHICH IS ESSENTIALLY THE SAME THING AS A GOVERNMENT DECLARING EMINENT DOMAIN ON ONE'S PRIVATELY OWNED HOME</span></strong></span><span style="color:#ff6600;"><strong><span style="font-size:130%;">. INTERESTINGLY, U.S. SENATOR PATRICK LEAHY AND OTHER CONGRESSIONAL DEMOCRATS HAVE PROPOSED LEGISLATION WHICH WOULD ALLOW THE U.S. GOVERNMENT TO DECLARE COMPULSORY LICENSES ON THE PATENTS AND COPYRIGHTS OF U.S. TAXPAYER-OWNED HI-TECHNOLOGIES!!! PERHAPS, THIS IS LARGELY WHY CONGRESSMAN RANGEL AND HIS COLLEAGUES HAVE GIVEN BRAZIL AND THAILAND A 'PASS'.</span></strong></span><br /><br /><br /><strong><span style="font-size:130%;color:#3333ff;">[INSTEAD, MR. RANGEL AND HIS COLLEAGUES DEVOTE CONSIDERABLE INK TO 'BASHING CHINA' WHICH, FOR SOME UNEXPLAINABLE REASON, DEMOCRATIC POLITICIANS ARE OBSSESSED WITH, AS ARE THEIR EUROPEAN COMMISSION COUNTERPARTS.]</span></strong><br /><br /><br /><span style="color:#66ffff;"><span style="font-size:130%;"><strong>[A CLOSE REVIEW OF THE NATIONAL TRADE ESTIMATE REPORT WILL REVEAL THAT </strong><strong>EUROPE IS SECOND ONLY TO CHINA IN THE NUMBER OF 'TRADE BARRIERS' LISTED AND DESCRIBED. THE REPORT DEVOTES 45 PAGES TO EUROPE, AND 67 PAGES TO CHINA, BUT EUROPE IS NOT REALLY BEING FOCUSED ON BY MR. RANGEL!!].</strong></span></span><br /><span style="font-size:100%;color:#66ffff;"></span><br /><span style="font-size:100%;color:#66ffff;"></span><br /><strong><span style="font-size:130%;color:#ffcc00;">FURTHERMORE, THE NATIONAL TRADE ESTIMATE REPORT SHOWS THAT THE FOLLOWING COUNTRIES HAVE BETWEEN 10 and 20 PAGES OF DESCRIBED TRADE BARRIERS, BUT ONLY JAPAN & RUSSIA ARE MENTIONED, NOT TAIWAN, SOUTH AFRICAN CUSTOMS UNION OR INDIA. HAVE MR. RANGEL AND HIS COLLEAGUES GIVEN THESE COUNTRIES A 'PASS' AS WELL???</span></strong><br /><strong><span style="font-size:100%;color:#ffcc00;"></span></strong><br /><br /><strong><span style="font-size:130%;color:#ffccff;">[THE FOLLOWING COUNTRIES HAVE <em>FEWER THAN 10 PAGES</em> ALLOCATED TO THEM, BUT THEY ARE ALSO INCLUDED ON MR. RANGEL'S 'BAD BOY' LIST:<br /><br />- KOREA – 5 PAGES;<br />- CANADA – 10 PAGES;<br />- UNITED KINGDOM – ¼ PAGE.<br /><br />WHAT IS INTERESTING HERE IS HOW THE U.K. IS CITED FOR PHARMACEUTICAL MARKET ACCESS BARRIERS BASED ON OVERLY CONTROLLED PRICING SCHEMES: THIS PROVIDES ONE MAJOR EXAMPLE OF WHY U.S. DRUG PRICES ARE SO HIGH – NAMELY, B/C U.S. PHARMA COMPANIES FIRST SUBSIDIZE THE COST OF DRUG DEVELOPMENT IN OTHER COUNTRIES WHICH DO NOT PAY HIGH ENOUGH PRICES FOR APPROVED DRUGS THAT WOULD PROVIDE THESE SAME U.S. COMPANIES WITH ADEQUATE RETURN ON INVESTMENT (ROI) TO REINVEST INTO NEW INNOVATIVE PRODUCTS. </span></strong><br /><strong><span style="font-size:130%;color:#ffccff;"></span></strong><br /><strong><span style="font-size:130%;color:#ffccff;"></span></strong><br /><strong><span style="font-size:130%;color:#ffccff;">ARGUABLY, IF MR. RANGEL AND HIS COLLEAGUES ON THE COMMITTEE ON WAYS AND MEANS FOCUSED INSTEAD ON ASKING THE ADMINISTRATION TO NEGOTIATE WITH OTHER COUNTRIES, INCLUDING THOSE IN EUROPE, TO RAISE THE ACCEPTABLE LEVEL OF DRUG PRICES PER THEIR GOVERNMENT-RUN MEDICINE REIMBURSEMENT PROGRAMS, SAY 10-15%, THIS WOULD EASE PRICE PRESSURES IN THE U.S. SOMEWHAT, AND MOST LIKELY RESULT IN MORE AFFORDABLE, CUTTING-EDGE MEDICINES].<br /></span></strong><br /><strong><span style="color:#ffccff;"><br /><span style="font-size:130%;color:#ff0000;">[The OECD nations, including the United States, have effectively been </span><span style="font-size:130%;color:#ff0000;">subsidizing the health care costs of developing country governments and citizens. Unfortunately, this subsidization has not occurred with all OECD members paying their fair share. Considering</span><span style="font-size:130%;color:#ff0000;"> the extent of pharmaceutical price controls currently being imposed in countries such as Australia, Canada, Japan, and the Member States of the EU, some of which are extremely proud of their social welfare systems, it is arguable that Americans are likely to bear most of these costs, especially in the near term. </span><br /><span style="font-size:100%;color:#ff0000;"></span><br /><span style="font-size:100%;color:#ff0000;"></span><br /><span style="font-size:130%;color:#ff0000;">In fact, this concern was duly noted within a recent 2004 United States Commerce Department study evaluating pharmaceutical pricing in high income countries. It called for higher patented drug prices in Canada, Europe, Japan, Australia and other OECD countries in order to reduce the degree to which American consumers subsidize global drug development costs.<br /><br /></span><span style="font-size:130%;color:#ff0000;"></span><span style="font-size:130%;color:#ff0000;"></span><br /><span style="font-size:130%;color:#ff0000;">The report concludes that these countries have been free-riding off American patent rent extraction by setting government reimbursement prices too low. . . A recent speculative estimate, based on industry data and calculations . . . suggests that eliminating OECD price controls on patented drugs would increase revenues by $17.6 to $26.7 billion per<br />year, with additional R&D of $5.3 to $8 billion per year. Implicit in this estimate is the assumption that about a third of incremental revenues would be spent on R&D. . . ."</span><br /></span></strong><strong><br /><span style="color:#9999ff;"><span style="font-size:130%;"><em>See</em> Kevin Outterson, Nonrival Access to Pharmaceutical Knowledge, Submitted to the CIPIH (Jan. 3, 2005), at note 190, ¶ 7.2., available at: </span><a href="http://www.who.int/intellectualproperty/submissions/KevinOutterson3january.pdf"><span style="font-size:130%;">http://www.who.int/intellectualproperty/submissions/KevinOutterson3january.pdf</span></a><span style="font-size:130%;">. ]</span></span></strong><br /><strong><span style="color:#ffccff;"><br /></span></strong><strong><span style="color:#ffccff;"></span></strong><strong><span style="font-size:130%;color:#ffccff;"></span></strong>ITSSD Charitable Missionhttp://www.blogger.com/profile/00790887154748866904noreply@blogger.com0tag:blogger.com,1999:blog-7037944389322160928.post-52565009328135233562008-04-02T05:43:00.000-07:002008-04-02T05:54:01.574-07:00Moscow Mayor's Myopic Motivations for Banning GMOs Reflects Political Protectionism at Work; Will Also Harm Russian Biotech Market Advances<a href="http://www.eurasiabio.org/media/news/moscow_mayor__going_to_exclude_transgenes_from__muscovites_ration/">http://www.eurasiabio.org/media/news/moscow_mayor__going_to_exclude_transgenes_from__muscovites_ration/</a><br /><br /><br /><strong><span style="font-size:130%;">Moscow mayor going to exclude transgenes from Muscovites’ ration</span></strong><br /><br /><br />Source: AMI TASS<br /><br /><br />March 20, 2008<br /><br /><br />Jury Lushkov has proposed to completely ban the sale of GMO containing products in Moscow.<br />He pointed out that about 6 per cent of products in sale in Moscow contain GMO. Indicating that such products are prohibited in many countries and cities. .Moscow mayor insists this dangerous and still not fully investigated component to be expelled from the capital.<br /><br /><br />Over 12,8 thousand titles of products have been checked. The GMO level exceeding the 0.9 per cent mark was revealed in 750 articles, mostly diary products.<br /><br /><br />The bans and limits for transgene cultures in several EG countries are linked to the ecologists' doubts that their uncontrolled dissemination can endanger the ecology balance in Europa.<br /><br /><br /><strong><span style="font-size:130%;">At the same time the representatives of Institute of Nutrition, Moscow State University, Gamaleja Institute of microbiology and epidemiology stress, that there exists no study proving the GMO danger for the human health</span></strong>.<br /><br /><br /><strong><span style="font-size:180%;">[MOSCOW STATE UNIVERSITY SCIENTISTS ARE CORRECT IN CITING THAT THERE ARE NO PROVEN HUMAN HEALTH OR ENVIRONMENTAL RISKS POSED BY GMOS]</span></strong><br /><br /><br /><strong><span style="font-size:130%;">[<em>See, e.g.</em>, LA Kogan Presentation at Moscow State University – BASIC DIRECTIONS OF MODERN BIOTECHNOLOGY: BIOTECHNOLOGY - A SCIENTIFIC & PRACTICAL PRIORITY OF THE RUSSIAN FEDERATION (June 29, 2007), at:</span></strong><br /><a href="http://www.itssd.org/Programs/BasicDirectionsofModernBiotechnology-KOGANPresentationMoscowConferenceJune29,2007.ppt"><strong><span style="font-size:130%;">http://www.itssd.org/Programs/BasicDirectionsofModernBiotechnology-KOGANPresentationMoscowConferenceJune29,2007.ppt</span></strong></a><strong><span style="font-size:130%;"><br /></span></strong>ITSSD Charitable Missionhttp://www.blogger.com/profile/00790887154748866904noreply@blogger.com0tag:blogger.com,1999:blog-7037944389322160928.post-47110723929765080162008-04-01T09:35:00.000-07:002008-04-01T09:45:15.480-07:00US Presidential Politics Could Derail Mexican Economic and Social Progress<a href="http://www.gfmag.com/index.php?idPage=777">http://www.gfmag.com/index.php?idPage=777</a><br /><br /><br /><strong><span style="font-size:130%;">NEIGHBORHOOD UNREST - MEXICO</span></strong><br /><br /><br /><strong><em>Mexico’s recent economic progress could be derailed by turmoil in the US economy and the outcome of the US presidential election.</em></strong><br /><strong><em></em></strong><br /><strong><em></em></strong><br /><strong>Global Finance Magazine</strong><br /><strong><em></em></strong><br /><strong><em></em></strong><br />By Antonio Guerrero<br /><br /><br />March 2008<br /><br /><br />The last time the US economy posted a slowdown, after the 2001 terrorist attacks, the Mexican economy contracted by 0.2%, nearly crushing its industrial sector. With the threat of a US recession looming large and uncertainties over what US-Mexican relations will look like once a new occupant moves into the White House next year, the outlook is beginning to look gloomy south of the border. However, Mexican government officials say the country is better prepared this time around to meet the challenge.<br /><br /><br />Mexico’s finance ministry estimates assume the US economy will grow by a meager 1.8% this year, prompting officials to reduce their own 2008 GDP forecast in February to 2.8% from the 3.7% forecast the ministry included in the federal budget last September. This would be Mexico’s slowest expansion in three years, after posting 3.2% GDP growth last year. Local banks had already adjusted their forecasts ahead of the government. Banamex, Citi’s Mexican subsidiary, cut its 2008 growth outlook to 2.9% from a previous 3.6%, while BBVA Bancomer slashed its prediction to 2.7% from 3.4%.<br /><br /><br /><em><strong>With 80% of Mexican exports going to the United States and domestic capital markets moving nearly in tandem with their counterparts in New York, a US recession would have a swift impact on Mexico—and perhaps test many of the structural reforms implemented by the Felipe Calderón administration that have helped to at least partly decouple the two economies.</strong></em> Calderón has tried to ease Mexicans’ fears about a potential US slowdown, saying, “We will seek growth opportunities from within ourselves, in our internal market, in the strong productive apparatus and in the country’s competitiveness.”<br /><br /><br />Calderón’s reform package includes a fiscal overhaul launched last September that should boost federal revenues by 1.5% of GDP this year, as well as labor reform to introduce greater flexibility. The next hurdle is energy reform, which legislators say should be ready by April. The controversial plan would open the Pemex state-owned oil monopoly to partnerships with private investors to inject capital into a company struggling with rising debt and dwindling oil reserves. Oil accounts for 40% of federal revenues, and, with its output of 1.3 million barrels a day, Pemex is the United States’ third-largest oil supplier.<br /><br /><br />The Mexican government’s 2008 budget will boost investment by 45%, the biggest increase in 45 years, with most additional spending earmarked for infrastructure projects that will boost competitiveness and create jobs. The aim is to spark 5% annual GDP growth by 2012, falling short of the 6% growth that analysts say is needed to generate the 1.3 million new jobs Mexico requires each year to absorb workers entering the job market. But the Calderón administration counters that its $295 billion public-private infrastructure investment program approved last year should alone create 800,000 jobs.<br /><br /><br /><strong><span style="color:#ffcc00;">According to a Merrill Lynch report, “A positive political agenda should create three positive effects in the medium-term: (1) reduce the country’s growth dependence on US activity and oil prices; (2) reinforce domestic engines for growth: credit, domestic consumption and productivity gains; and (3) promote GDP per capita growth, also addressing Mexico’s social agenda: improve social services and decrease poverty.”</span></strong> Merrill Lynch expects economic growth will be supported by 22% credit growth this year, along with a 4.1% expansion in domestic consumption.<br /><br /><br /><strong><span style="font-size:130%;">US Election Raises Tension</span></strong><br /><br /><br /><strong><span style="font-size:130%;color:#ff0000;"><em>While Mexico is hoping to shield itself from a US recession, it may be harder for it to stay out of the US presidential election as Republican and Democratic candidates alike tackle the issues of immigration, drug trafficking and free trade</em></span></strong>. Calderón recently asked US presidential candidates to tone down the anti-immigrant and anti-Mexican rhetoric in their campaigns. But candidates may be responding to genuine concerns, as a recent Zogby poll in the US shows more than 76% of respondents said a candidate’s position on immigration will be a “very important” or “somewhat important” factor in deciding whom to vote for this year. Another 36% said “job creation to stem migration” is the most important foreign policy measure the US should take toward Latin America.<br /><br /><br />The fight against drug trafficking, likely to be a key concern for the next US president, is already being tackled by the Mexican government, with the Calderón administration deploying more than 24,000 troops to regions with high drug production and trafficking activity, as well as extraditing drug lords to the US and seizing large amounts of illicit drugs. The moves have been well received in Washington, where the White House last October announced a $1.4 billion military and security package designed to help Mexico and Central America tackle drug cartels.“<br /><br /><br />Given the dimensions of the problem, cooperation with the government of the United States is indispensable,” Mexico’s foreign minister Patricia Espinosa told the press. <strong>The US aid package is made more politically palatable to Mexican authorities by, unlike the controversial Plan Colombia, not involving any deployment of US military personnel to Mexico</strong>.<br /><br /><br />Both governments may find themselves embroiled in a less congenial dialogue this year over the future of trade between the two nations. <strong>In January the last remaining exceptions to the North American Free Trade Agreement (Nafta) were lifted, allowing US corn, sugar, beans and milk to enter Mexico under the pact. While the measure could help lower food prices, Mexican farmers are less than thrilled and not only have unleashed street protests but have called on their government to renegotiate the treaty, which went into effect in 1994.</strong><br /><br /><br /><strong><span style="font-size:130%;"><span style="color:#ffff00;">According to Lawrence Kogan, president and CEO of the Institute for Trade, Standards and Sustainable Development (ITSSD) in Princeton, New Jersey, the controversy may lead to “managed” trade, which he feels is a euphemism for quota-like restrictions on trade in selected agricultural products</span>. <span style="color:#ff6600;">“Mexican farmers may end up receiving the short end of the stick here,” says Kogan. “We must wait and see what is ultimately agreed to and then wait to see how it is actually applied in practice.”</span></span></strong><br /><strong><span style="font-size:130%;"></span></strong><br /><strong><span style="font-size:130%;"></span></strong><br /><strong><span style="font-size:130%;">Kogan, also a professor of International Trade Law and Policy at Seton Hall University, says the impact on Mexican exports to the US could be determined by who wins the presidency. <span style="color:#33ff33;"><span style="color:#3333ff;">“A Democratic Congress would likely become emboldened if a Democrat were in the White House.</span> Assuming the Republicans fail to retake Congress, Congress would be more inclined to impose new environmental, health and safety, and labor standards through Nafta and the WTO to raise the cost of Mexican goods and services so that they no longer could compete effectively with US products,” he says</span>.</span></strong><br /><br /><br /><strong><em>Meanwhile, capital market investors remain cautiously bullish on Mexico. Merrill Lynch predicts a 23% total return on Mexican equities this year, below the 26% Latin American average and 28% for Brazil, but higher than Chile’s 22% and Argentina’s 19%—adding that the appreciation will be driven by 16% earnings growth (in US dollars) in 2008 and 11% in 2009.</em></strong> Citi upgraded Mexican shares to overweight, arguing that a US recession has been nearly fully priced into Mexican stocks. The sovereign also set a new fixed-income benchmark in January that extended its yield curve to 2040 and saw the order book soar to $3 billion for a $1.5 billion issue that had been upped from an initial $1 billion.<br /><br /><br />Mexico’s central bank governor Guillermo Ortiz remains more cautious, saying at the World Economic Forum in Davos that Mexico has not yet felt the full impact of the global economic crisis, and there could be more pain ahead. “We’re in round one or two,” he said, “but this is a 15-round fight.”ITSSD Charitable Missionhttp://www.blogger.com/profile/00790887154748866904noreply@blogger.com0tag:blogger.com,1999:blog-7037944389322160928.post-23401110534912648532008-03-31T19:57:00.000-07:002008-04-05T12:16:58.772-07:00Eco-Fashion or Eco-Fashism: How Involved is the EU Commission in Promoting 'Market-Based' Eco-Labels as Disguised Trade Barriers?<a href="http://www.europe.org.uk/index/-/id/137">http://www.europe.org.uk/index/-/id/137</a><br /><br /><br /><strong><span style="font-size:130%;">Eco-fashion</span></strong><br /><br /><br /><strong>Europe in the UK</strong><br /><br /><br /><strong><em>As the Craft Council's exhibition 'Well Fashioned: Eco Style in the UK' begins its nationwide tour, Lucy Lethbridge tells us more about <span style="color:#33ff33;">'green' couture in Europe</span></em></strong>.<br /><br /><br /><a href="http://i.treehugger.com/images/2007/10/24/indigenous-designs.jpg"><img style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 218px; CURSOR: hand; HEIGHT: 131px" height="127" alt="" src="http://i.treehugger.com/images/2007/10/24/indigenous-designs.jpg" border="0" /></a> <a href="http://www.instablogsimages.com/images/2007/09/19/eco-fashion_69.jpg"><img style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 200px; CURSOR: hand" alt="" src="http://www.instablogsimages.com/images/2007/09/19/eco-fashion_69.jpg" border="0" /></a><br /><br /><br /><br /><br /><br /><br /><br /><br /><strong>The very idea of environmentally-friendly fashion may seem a contradiction in terms. Clothes that are fairly traded, vegetable-dyed, animal-loving, free of pesticides, harmful chemicals and toxic bleach and made entirely by adults paid a living wage?</strong> You must be talking hemp jerkins or homespun cardigans dyed with woad - it's surely not haute couture, or even faintly trendy.<br /><br /><br />But think again. Fashion designers, boutiques and clothing companies all over Europe are the latest to ride the wave of ethical, environmental, sustainable, ecologically-aware products that currently account for a massive £24 billion of the UK market alone.<br /><br /><br />The success of eco-friendly designers like the Dutch firm Kuyichi demonstrates that there is increasing interest in where your clothing comes from as well as what it looks like. This business is about more than just shopping and fashion: Kuyichi advertises itself first and foremost by its ethical credentials: the company has been responsible for "5,000,000 metres of organic yarn"; 450 farmers growing our organic cotton in India; 15 per cent of our profits go to the people who help make Kuyichi".<br /><br /><br /><a href="http://www.zeapartners.org/media/Oxfam_Logo.gif/image_preview"><img style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 115px; CURSOR: hand; HEIGHT: 100px" height="123" alt="" src="http://www.zeapartners.org/media/Oxfam_Logo.gif/image_preview" border="0" /></a>Who wouldn't want to be part of such a beneficent world force - even if it meant paying a lot more for a t-shirt than in Primark or Matalan? The fact is that once you know that cotton growing is so heavy on the use of chemicals that 25 per cent of the world's pesticides are used on cotton alone - well, it rather puts you off that cheap T-shirt in bright, bright white. <strong><em><span style="font-size:130%;">(Take a look at the Clean Clothes Campaign - ww.cleanclothes.org - supported by <span style="font-size:180%;">Oxfam</span> and other European NGOs for some firsthand information on the truth behind the T-shirt</span></em></strong> - and don't think that if it was made in an eastern Europe sweatshop it makes it more ethical than one made in an Asian sweatshop.)<br /><br /><br /><strong><span style="font-size:130%;">Environmen<a href="http://www.powerpage.org/images/logos/greenpeace_logo_.jpg"><img style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 159px; CURSOR: hand; HEIGHT: 76px" height="88" alt="" src="http://www.powerpage.org/images/logos/greenpeace_logo_.jpg" border="0" /></a>tal NGO Greenpeace</span></strong> are active campaigners in support of textiles that demonstrate an environmentally and socially responsible source. They have compiled a detailed directory, Natural Matters, (<a href="http://www.naturalmatters.net/">http://www.naturalmatters.net/</a>) of organic cotton manufacturers and sustainable clothing producers. <strong><em><span style="font-size:180%;color:#ff0000;">As one designer said to me, "You need to be on one of these green directories - it gives credibility".</span></em></strong><br /><br /><br />There are jeans made with organic denim; recycled jumpers, saris and evening dresses; clothes and jewellery made in co-operatives that pay fair wages to women in developing countries; a booming industry in pesticide-free baby clothes; shoes made with vegetable-dyed leather from happy cows. What is more, they all look pretty good: sharp, cosmopolitan, fashionable - and not remotely like the smelly, saggy sackcloth of the hippyish past.<br /><br /><br /><strong><span style="font-size:180%;">Eco-fashion</span></strong> is now attracting the interest of top designers as well as fashion graduates who are setting up businesses allied with organisations, banks and NGOs such as Solidaridad, the Dutch campaigners for organic and fairly-traded cotton, <strong><span style="font-size:180%;">the Soil Association</span></strong>, the British campaign group for organic agriculture, and Triodos (<a href="http://www.triodos.com/">http://www.triodos.com/</a>), the Europe-wide bank, founded in the Netherlands, which lends only to enterprises concerned sustainable and ethical businesses, that makes "positive contributions to the environment and to social projects". James Niven of Triodos in Bristol says that the interest is growing: "Ethical fashion is not just an outside runner but a really good and robust business proposition".<br /><br /><br /><a href="http://www.defra.gov.uk/environment/consumerprod/images/ecoplant2.gif"><img style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 113px; CURSOR: hand; HEIGHT: 134px" height="247" alt="" src="http://www.defra.gov.uk/environment/consumerprod/images/ecoplant2.gif" border="0" /></a><strong><span style="font-size:130%;">The European Union itself has established an "EU Eco-label" in the shape of a flower logo which is awarded to companies that have been checked by <span style="font-size:180%;">independent <span style="color:#66ffff;">experts</span></span><span style="color:#66ffff;"> </span><span style="font-size:180%;"><span style="color:#66ffff;">who will vouch for their eco-credentials</span>. <span style="font-size:100%;"></span></span></span></strong><br /><strong><span style="font-size:130%;"><span style="font-size:180%;"><span style="font-size:100%;"></span></span></span></strong><br /><strong>[ <a href="http://ec.europa.eu/environment/ecolabel/index_en.htm">http://ec.europa.eu/environment/ecolabel/index_en.htm</a> -<br /><a href="http://www.eco-label.com/default.htm">http://www.eco-label.com/default.htm</a> ]</strong><br /><br /><br /><strong><span style="font-size:130%;"><span style="font-size:180%;">[??? - THESE PEOPLE ARE HARDLY EXPERTS - RATHER THEY ARE SELF-APPOINTED ENVIRO-GURUS WITH DELEGATED GOVERNMENT ENFORCEMENT POWERS THAT IMPOSE THEIR PREFERENCES ON COMPANIES & CONSUMERS!!] </span>who will vouch for their eco-credentials ???]</span></strong>.<br /><br /><br /><a href="http://www.ecoglobe.org/nz/images/soilass.gif"><img style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 115px; CURSOR: hand; HEIGHT: 113px" height="134" alt="" src="http://www.ecoglobe.org/nz/images/soilass.gif" border="0" /></a><strong><span style="font-size:180%;">The Soil Association</span></strong> in Britain has an accredited list of organic textile suppliers including growers of hemp - perhaps the most environmentally friendly and under-used of crops. ["The Soil Association is the UK's leading campaigning and certification organisation for organic food and farming... <strong><em><span style="font-size:130%;">The Soil Association symbol can be found on over 70% of Britain's organic produce</span></em></strong> - a guarantee that it has been grown or produced to <strong><span style="font-size:180%;">the highest standards of organic integrity [??]</span></strong>. <strong><span style="color:#33ff33;">We also undertake certification of timber and wood products</span></strong>. <strong><span style="font-size:180%;">Soil Association Certification Ltd enforces these standards through certification and regular inspections of producers, processors and suppliers.</span></strong>"<br /><br /><br />The imagination and ingenuity of these emerging designers is inspiring. Kate Goldsworthy lectures on sustainable textiles and fashion at Chelsea College of Art in London, one of the only art colleges in Europe to offer a course on sustainability and fashion. She has noticed a "massive" rise in the number of students wanting to apply for the course:<br /><br /><br /><span style="color:#33ff33;"><strong>"There is now a much more ingrained ethos about sustainability</strong>.</span> People are beginning to react against the speed and profligacy of the fashion cycle". Instead of worrying about quick-change fashion next season, <strong><em><span style="font-size:130%;">eco-designers are concerned about creating clothing that won't be thrown away, but will be handed down for generations</span></em></strong>. Take Amy Twigger, of Keep & Share, based in Shropshire, who makes beautiful, hand-made jumpers - only one at a time and to order: Twigger says: "I'm trying to create pieces that people will keep and will rise above trends. They are perennial classics". As fashion historian Jane Mulvagh puts it: "In fact what is happening is that people are beginning to rediscover the make-do and mend ethos of their grandparents - a period when cuffs were turned, stockings were darned and clothes were made to last. If it means paying more, it also means that you take care of these clothes because you respect the craftsmanship that has gone into them".<br /><br /><br />The ingenuity and imagination of the new generation of designers is dazzling. They have taken recycling out of the thrift shops and converted them into marvels of one-off chic. Edson Raupp, for example, a Brazilian-German designer, based in London, makes bags out of classically tailored English suits that had been consigned to the dustbin or the charity shop. A chalk-striped suit, beautifully tailored of the finest cloth, can make four witty bags. The buttons are then collected, dyed in different colours and sewn onto evening bags in long trailing strands held together by plastic label tags. Finally the suits' labels are cut out and sewn onto other bags in collages. Raupp buys secondhand suits in bulk. He started by purchasing them in charity shops but now finds he needs to go to the organisations that supply the shops to have them delivered in the quantity he now needs.<br /><br /><br /><br />The Indian Sari is another garment that has undergone a remarkable transformation. Sittal Hari of Sari Couture buys up unwanted or second-hand saris in enormous quantities and has them made into beautiful jackets, skirts and coats. British-born Hari was inspired to start her business when she visited relatives in India bringing with her old saris as presents from her family. She found her relatives didn't want them, and wondering what she could do with these beautiful lengths of fabric she came up with the idea of Sari Couture. <strong><em><span style="font-size:130%;"><span style="color:#ffff00;">All the garments (which start at £200) are made in a factory in London </span><span style="color:#ffff00;">as Hari wants to keep the production local</span>.</span></em></strong> "We are totally dedicated to recycling" she says, "and we see it as part of our company ethos to go out and talk to schools and give workshops on how to reuse and re-make beautiful things". <strong><span style="font-size:130%;color:#ffcc00;">Hittal set up Sari Couture with a grant of £5000 from London Re-made, an initiative to help recycling projects established by the Mayor of London's office</span></strong> (<a href="http://www.londonremade.com/">http://www.londonremade.com/</a>). It has a brief to support what the Office calls "enviro-entrepeneurs", small and medium-sized businesses with a recycling and environmental policy - and it has a fund of £1.8 million from the London Development Agency behind it.<br /><br /><br />Among the other ethical businesses it has sponsored is Beyond Skin, a vegetarian shoe label.<br />Lancelot Clark, of the Clark Shoes dynasty, and his son Galahad, have continued the Quaker ideals of their shoemaking forebears with the Worn Again range of their shoe company Terra Plana. Their anti-apathy trainers are made from materials such as old tyres, used coffee-bags, army surplus jackets and scrap car-seat leather. And they look really pretty good. At a different end of the market, in France, Michele and Olivier Chatenet make divine clothing from second-hand haute couture pieces - an Yves St Laurent evening dress remodelled into a two-piece suit perhaps or a silk skirt. In Finland, for the sportier, lumberjacking kind of fashionisti, Globe Hope make heavy-duty utilitarian pieces out of old hospital textiles and army uniforms.<br /><br /><br />Eco-fashion is not just the concern of a few idealists content to pay over the odds for an unbleached baby-gro. With shoppers more informed now about the real story behind a new T-shirt or a pair of jeans or trainers, it <strong><span style="font-size:130%;color:#ff6600;">makes good business sense to look for ethical ways to make and market fashion products. Caring, saving, recycling - it's beginning to hit the catwalk</span></strong>. And you don't have to be a vegetarian to get in on the act either. <strong><span style="font-size:180%;color:#ffccff;">The designers behind Romp, makers of the most luxurious fur, leather and suede coats <em><span style="color:#33ffff;">(all of them the product of happy, free-range, organically-fed animals identified by name and destined for food anyway)</span></em></span></strong> puts it like this: "If you don't care at all you are probably quite sad and lonely and I hope that you get some love and learn to smile again soon".<br /><br /><br />Yes, I know, some of those virtuous "mission statements" can be annoying: but don't let them put you off, this is booming business and makes good sense for everyone from designer to maker to wearer.<br /><br /><br />The Craft Council's Touring exhibition 'Well Fashioned: Eco Style in the UK' can be seen here:<br />· The City Gallery, Leicester: 15 July to 26 Aug 2006<br />· The Design Centre, Barnsley: 7 Sep to 20 Oct 2006<br />· City Museum & Records Office, Portsmouth: 4 Nov 2006 to 7 Jan 2007<br />· Bilston Craft Gallery, Wolverhampton: 20 Jan to 3 March 2007<br /><br />© Lucy Lethbridge. All views expressed in this article are those of the author and do not necessarily represent the views of, and should not be attributed to the European Commission.<br /><br /><br /><strong><em><span style="color:#3333ff;"><span style="font-size:180%;">The European Commission Representation in the United Kingdom maintains this website</span> to enhance public access to information about its initiatives and European Union policies in general. Our goal is to keep this information timely and accurate. If errors are brought to our attention, we will try to correct them. However the Commission accepts no responsibility or liability whatsoever with regard to the information on this site.</span></em></strong><br /><a href="http://www.europe.org.uk/disclaimer">http://www.europe.org.uk/disclaimer</a><br /><br /><br />*****************************************************************************************<br /><strong><span style="font-size:180%;">THE EU ECO-LABEL IS CENTRAL TO EUROPE'S CAMPAIGN TO PROMOTE ENLIGHTENED ENVIRONMENTALISM THROUGHOUT THE WORLD. CONSEQUENTLY, ECO-LABELS ARE A CREATURE OF EU GOVERNMENTAL REGULATION. </span></strong><br /><strong><span style="font-size:100%;"></span></strong><br /><strong><span style="font-size:100%;"></span></strong><br /><br /><strong><em><span style="font-size:130%;color:#ff6600;">The EU Ecolabel (The Flower) is the EU's own high-level award scheme for products which meet very high environmental standards</span></em></strong>. <strong><span style="font-size:130%;color:#33ff33;">Businesses which can show that their product meets the demanding criteria set by the scheme can apply to the body running the scheme in their member state (the Competent Body) to use the Ecolabel's Flower logo on the product and in advertising</span></strong>.<br /><br /><br />The scheme currently covers twenty-four product groups, including tourist accommodation and campsites, and the logo appears on thousands of products across Europe. <strong><span style="font-size:180%;color:#ffff00;">The Ecolabel was originally established by an EU Regulation in 1992, which was revised in 2000. The Commission, which coordinates the running of the scheme, is currently reviewing and revising it again</span></strong>. The public consultation, which was carried out through an online questionnaire, <strong>was the second part of a process which began with an evaluation study in 2005.</strong><br /><br /><br />The evaluation study concluded that the original ideas behind the voluntary scheme were still valid and desirable from a business perspective: <strong>The EU Ecolabel provides EU consumers with an environmental certification they can trust, unlike certain other labels which are 'selfclaims'.</strong> <strong><em><span style="font-size:130%;color:#3333ff;">Additionally it can give businesses the opportunity to use one label for all their pan- European or global marketing</span></em></strong>.<br /><br /><strong><em><span style="font-size:130%;">In summary the study showed that:</span></em></strong><br /><br />• The Ecolabel has contributed to setting targets for better environmental product<br />performance;<br /><br />• It has influenced the demand for suppliers to meet high environmental standards;<br /><br />• Companies participating in the EU scheme use the Ecolabel in their marketing<br />campaigns;<br /><br />• Neither users nor non-users of the Ecolabel want to see the label abolished;<br /><br />• The concept of the EU Ecolabel is preferred to that of national labels.<br /><br /><br /><strong><span style="font-size:180%;"><em>However</em>:<br /></span></strong><br />• There is still low awareness and uneven geographic take-up of the label;<br /><br />• There are insufficient product group categories;<br /><br />• <strong><span style="font-size:130%;">It suffers from cumbersome procedures and organisational structures - i.e. bureaucracy </span></strong>which limit the Scheme's ability to grow and respond to opportunities;<br /><br /><span style="font-size:130%;">• <strong>Fees and cost of getting the label are perceived as barriers;</strong></span><br /><strong><br /><span style="font-size:130%;">• There is a lack of perceived public purchasing benefits</span></strong><span style="font-size:130%;">.</span><br /><br /><br /><strong><span style="color:#66ffff;"><em>See </em>Report on the Public Consultation Revision of the EU Ecolabel Regulation (EC) No 1980/2000, European Commission (Oct. 2007)</span></strong> at: <a href="http://ec.europa.eu/environment/ecolabel/pdf/revision/revision_report2007.pdf">http://ec.europa.eu/environment/ecolabel/pdf/revision/revision_report2007.pdf</a> .<br /><br /><br /><span style="font-size:180%;"><strong>THE 2007 REPORT FOLLOWED FROM A PRIOR 2005 STUDY PREPARED BY CONSULTANTS ON BEHALF OF THE DIRECTORATE GENERAL ENVIRONMENT, OF THE EU COMMISSION. THE PRIOR STUDY </strong><strong>REFLECTS HOW EUROPEAN INDUSTRY LOBBIED FOR EU GOVERNMENTAL INVOLVEMENT TO ENSURE A COMPETITIVE ADVANTAGE THROUGH USE OF EU REGIONAL 'ECO-LABEL' & ENVIRONMENTAL MANAGEMENT SYSTEM</strong></span><br /><span style="font-size:180%;"><strong>STANDARDS (EMAS). THIS WAS THOUGHT POSSIBLE BY EMBEDDING ECO-LABEL CERTIFICATION, VERIFICATION & PERFORMANCE STANDARDS/REQUIREMENTS WITHIN EU REGULATIONS AND BY INCORPORATING THEM INTO GOVERNMENT PUBLIC PROCUREMENT REQUIREMENTS</strong></span><br /><br /><br /><strong><span style="font-size:130%;">B7. Desired incentives and measures for the EU Eco-label revision</span></strong>:<br /><br />• Information and promotion campaigns and other actions aimed at increasing the knowledge and the demand of the EU Eco-label are perceived as the most effective measures for supporting the scheme and endorsing its success as a marketing opportunity.<br /><br />• <strong>External incentives are also widely requested. <span style="color:#ff6600;"><span style="font-size:130%;">Fiscal incentives, such as tax abatement</span>,</span> are thought to be effective, insofar as they enable producers to lower the costs and prices of Eco-labelled products</strong>. Another of the ‘most wanted’ incentives is the inclusion of the EU Eco-label as a facilitating condition for public procurement.<br /><br />• <strong><span style="font-size:130%;color:#33ff33;">Other desirable measures directly relate to various modifications that can be introduced in the Regulation or in its institutional and applicative framework</span></strong>, such as a higher number of product groups or a further <strong><span style="font-size:130%;color:#ff0000;">extension of the EU Eco-label to services.<br /></span></strong><br />• Outsourcing the EU Eco-label to an entirely private body obtains a low degree of support (but also the idea of making it entirely Commission-managed also raises many objections).<br /><br />• Lowering the number and/or the stringency of the criteria to make the scheme ‘easier’ is not strongly supported (although on the whole the idea is favoured by the literature).<br /><br />• Finally, it should be emphasised that the proposal of having a graded label, strongly debated in recent years, has been definitively rejected.<br /><br /><br /><strong><span style="font-size:130%;">C1. Evidence and desired incentives:</span></strong><br /><br />• To some extent, the product dimension is already part of EMAS: the environmental management system influences product performance in other phases of the life-cycle and/or in the supply chain.<br /><br />• There is a certain awareness of the potential benefits emerging from a stronger link and synergy between EMAS and the EU Eco-label.<br /><br />• “Synergy” between the two voluntary schemes does not mean merging them, but exploiting all the possible opportunities for mutual reinforcement.<br /><br />• ISO type III labels can be a synergetic tool for both schemes: many opportunities were identified (both in the desk and in the in-field research) for pursuing integration with ISO type III labels, with reference to operational, marketing and institutional synergies.<br /><br />• <strong><span style="font-size:130%;color:#ffcc00;">A major issue for the revision of both the schemes is integrating and linking them with existing legislation and environmental policies (to a wider extent).</span></strong><br /><br />In particular, a considerable consensus was found during the desk and in-field research on <strong><span style="font-size:130%;color:#66ffff;">the strong need for integrating and embedding EMAS and the EU Eco-label in other product-related policy and private-certification instruments (other labels and forms of certifications, other IPP tools, etc.).<br /></span></strong><br />• <strong>A more general request is also being made by stakeholders and organisations taking part in the two schemes for a truly effective and consistent</strong> <strong><span style="font-size:180%;color:#ffff00;">embedding of EMAS and the EU Eco-label in existing and forthcoming legislation, in policy implementation and even in the enforcement of environmental legislation (e.g. regulatory relief and flexibility). Some of the most frequently suggested policy areas for promoting synergy are, for EMAS: the IPPC directive, the Emission trading directive, the Seveso Bis Directive; for the EU Eco-label: EuP, RoHS and, to a minor extent, REACH.<br /></span></strong><br /><br />The prior findings was set forth in a 2005 study prepared a group of consultants for the Directorate General Environment, of the EU Commission.<br /><br /><br /><strong><span style="font-size:130%;"><em>See </em>“EVER: Evaluation of EMAS and Eco-label for their Revision”, Executive Summary</span></strong> (12/26/05) at: <a href="http://ec.europa.eu/environment/ecolabel/pdf/revision/executive_summary.pdf">http://ec.europa.eu/environment/ecolabel/pdf/revision/executive_summary.pdf</a> .<br /><br /><strong><span style="font-size:130%;">The full study </span></strong>is available at: <a href="http://ec.europa.eu/environment/ecolabel/pdf/revision/final_recommendations.pdf">http://ec.europa.eu/environment/ecolabel/pdf/revision/final_recommendations.pdf</a><a href="http://ec.europa.eu/environment/ecolabel/pdf/revision/final_recommendations.pdf">vironment/ecolabel/pdf/revision/final_recommendations.pdf</a> .<br /><br /><br /><span style="font-size:130%;"><strong><em>See also</em> Using Eco-Labels to Promote Producer & Consumer Behavior Modification May Very Well Give Rise to Disguised Trade Barriers, Admits UN<br /></strong></span><a href="http://itssdinternationalstandards.blogspot.com/2008/03/using-eco-labels-to-promote-producer.html"><span style="font-size:130%;"><strong>http://itssdinternationalstandards.blogspot.com/2008/03/using-eco-labels-to-promote-producer.html</strong></span></a><br /><br /><br />**************************************************************************************<br /><strong><span style="font-size:180%;">[THE EU HAS ALSO INTERVENED IN THE MARKETPLACE TO ESTABLISH AND MONITOR ECO-FRIENDLY FURNITURE PRODUCTION & PROCESSING, AS REFLECTED WITHIN ENVIRONMENTALLY FRIENDLY FURNITURE ECO-LABELING SCHEMES, AS PART OF THE EUROPEAN UNION'S SUSTAINABLE FOREST MANAGEMENT (SFM) POLICY FRAMEWORK<br /></span></strong><br /><br />The EU had shown interest in tying ecolabelling and furniture product branding together with regional <strong><span style="font-size:130%;color:#33ff33;">sustainable forest management policy</span></strong> as early as 2001.<br /><br /><br /><strong><span style="font-size:130%;color:#33ff33;">A 2001 report prepared for the European Commission recommended that SFM certification be included as an indispensable criterion for award of such a label, through official EU involvement, if necessary. ‘[I]f [private] demand does not exist, it can be created through awareness activities or through procurement requirements in the case of public procurements’ (emphasis added).<br /></span></strong><br /><br /><strong><em>See</em> Jurgen Barsch, E. Deliege and P.W.J. Luiten, The Feasibility of an EU Eco-Label for Furniture (FRG Umweltbundesamt (Federal Environmental Agency, February 2001)</strong>, at pp. 31, 35, available at <a href="http://www.ec.europa.eu/environment/ecolabel/pdf/furniture/feas_study.pdf">www.ec.europa.eu/environment/ecolabel/pdf/furniture/feas_study.pdf</a> .<br /><br /><br /><strong><span style="font-size:180%;"><em>See also</em> Discerning the Forest From the Trees: How Governments Use Ostensibly Private and Voluntary Standards to Avoid WTO Culpability</span></strong><br /><a href="http://itssdinternationalstandards.blogspot.com/2008/01/discerning-forest-from-trees-how.html"><strong><span style="font-size:130%;">http://itssdinternationalstandards.blogspot.com/2008/01/discerning-forest-from-trees-how.html</span></strong></a><br /><br /><br />-------------------------------------------------------------------------------------------------<br /><br /><br /><strong><span style="font-size:180%;">[ONE IMPORTANT QUESTION READERS SHOULD ASK THEMSELVES, GIVEN THE EMOTIONAL AND OBSSESSIVE CAMPAIGN WAGED BY EUROPEAN AND NOW CERTAIN AMERICAN (DEMOCRATIC PARTY) POLITICIANS (INCLUDING FORMER V.P. AL GORE, SENATORS CLINTON & OBAMA, AND THE 110TH CONGRESSIONAL MAJORITY, IS HOW CLOSELY DOES ENVIRONMENTALISM RESEMBLE CLASSICAL FACISM??? TO THIS END, READERS MAY FIND INFORMATIVE THE FOLLOWING WEBSITES. See, e.g. <a href="http://www.ecofascism.com/index.html">http://www.ecofascism.com/index.html</a> . </span></strong><br /><br /><br /><strong><span style="font-size:180%;">READERS SHOULD AT LEAST CONSIDER THE FINDINGS OF THE FOLLOWING BOOK:</span></strong><br /><br /><a href="http://www.larevolutionencharentaises.com/local/cache-vignettes/L179xH260/Ecofascism_lessons_from_the-4b942.jpg"><img style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 216px; CURSOR: hand; HEIGHT: 288px" height="291" alt="" src="http://www.larevolutionencharentaises.com/local/cache-vignettes/L179xH260/Ecofascism_lessons_from_the-4b942.jpg" border="0" /></a> <strong><span style="font-size:180%;color:#33ff33;">Ecofascism: Lessons from the German Experience</span></strong><br /><br /><strong><span style="color:#33ff33;">By Janet Biehl and Peter Staudenmaier© Copyright: 1995</span></strong><br /><br />Janet Biehl and Peter StaudenmaierLibrary of Congress Cataloguing-in-Publication DataBiehl, Janet, 1953-- Ecofascism: lessons from the German experience / by Janet Biehl and Peter Staudenmaier p. cm. Includes bibliographical references. ISBN 1-873176 73 2 (paper) 1. Green movement--Germany--History--20th century. 2. Fascism-- Germany. 3. Environmental policy--Germany. 4. Environmentalism. 5. Political policy--Germany--History. 6. Right and left (Political science) 7. Grünen (Political party) I. Staudenmaier, Peter, 1965-- . II. Title HC79.E5B5 1995 304.2'0943'--dc20 95-40752<br />CIP British Library Cataloguing in Publication DataA catalogue record for this title is available from the British Library.First published in 1995 by AK Press AK Press 22 Lutton Place P.O. Box 40682 Edinburgh, Scotland San Francisco, CA EH8 9PE 94140-0682<br /><br /><a href="http://www.spunk.org/texts/places/germany/sp001630/janet.html">http://www.spunk.org/texts/places/germany/sp001630/janet.html</a>ITSSD Charitable Missionhttp://www.blogger.com/profile/00790887154748866904noreply@blogger.com1tag:blogger.com,1999:blog-7037944389322160928.post-74457611720533763902008-03-26T21:20:00.000-07:002008-03-26T21:42:39.780-07:00110th Congress' Obstruction of Colombia-US Free Trade Agreement Foolishly Harms American Exporters As Well As Colombian Businesses & Democracy<a href="http://www.azcentral.com/arizonarepublic/opinions/articles/0312wed2-12.html">http://www.azcentral.com/arizonarepublic/opinions/articles/0312wed2-12.html</a><br /><br /><br /><strong><span style="font-size:130%;">To a freer Latin America</span></strong><br /><br /><br />Mar. 12, 2008 12:00 AM<br /><br /><br /><strong><span style="font-size:180%;">By obstructing a free-trade agreement with Colombia, Congress is achieving a mathematical impossibility.<br /></span></strong><br /><br /><br /><br /><a href="http://www.fas.usda.gov/itp/images/us_coltpa.gif"><img style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 210px; CURSOR: hand; HEIGHT: 120px" height="113" alt="" src="http://www.fas.usda.gov/itp/images/us_coltpa.gif" border="0" /></a>If opposition to the deal made no sense in terms of rational self-interest when it was sealed between the U.S. and Colombia in 2006, it makes even less sense now. Less than zero sense.<br /><br /><strong><em><span style="font-size:130%;color:#ffff00;">The agreement signed in November 2006 effectively stabilized an imbalance between the countries.</span></em></strong><br /><br /><br />Most Colombian exports to this country arrive largely duty-free, courtesy of the 1991 Andean Trade Preference Act, which reduced or eliminated trade barriers to Latin American countries that took effective steps to fight drug-trafficking. <span style="color:#ff0000;"><span style="font-size:130%;"><strong>A former narco-terror hell on Earth, Colombia has taken greater steps to fight the narcotics cartels than, arguably, any nation in the region</strong>.<br /></span></span><br /><br /><strong><em><span style="font-size:180%;">The same relaxed trade rules do not hold for U.S. exports to the South American nation, however.<br /></span></em></strong><br /><br />In 2006, for example, <strong><em><span style="font-size:130%;color:#ffcc00;">Arizona companies exported a relatively paltry $9.8 million worth of manufactured goods and electronics to Colombia, according to the U.S. Department of Commerce. And they paid a healthy fee for that privilege, including tariffs of 10 to 20 percent.</span></em></strong><br /><br /><br /><strong><span style="font-size:130%;color:#ff6600;">Congressional approval of the Colombian free-trade agreement would strike that imbalance and almost certainly would prove an immediate godsend to Arizona manufacturers that do business with Bogota.</span></strong><br /><br /><br />Even as a matter of politics, the obstruction makes no sense.<br /><br /><br />Since assuming office in 2002, <strong><em><span style="font-size:180%;color:#66ffff;">Colombian President Alvaro Uribe has made huge progress in stabilizing his formerly war-torn nation. He has created one of the most stable democracies on a continent that otherwise seems to be backsliding toward its tragic roots of totalitarianism, despotism and revolution.<br /></span></em></strong><br /><br /><strong><span style="font-size:130%;color:#ff0000;">Uribe's long-standing friendship with the U.S. - which is to say, his friendship with President Bush - is the source of his unpopularity on Capitol Hill, of course</span></strong>.<br /><br /><br />That political principle - any friend of my enemy is my enemy - took center stage on March 1 when Uribe sent his commandos a mile and a half into neighboring Ecuador to take out an encampment of narco-terrorists, killing notorious rebel leader Raul Reyes.<br /><br /><br /><a href="http://www.brutallyhonest.org/brutally_honest/images/070104madamespeakx.gif"><img style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 414px; CURSOR: hand; HEIGHT: 303px" height="148" alt="" src="http://www.brutallyhonest.org/brutally_honest/images/070104madamespeakx.gif" border="0" /></a><br /><br /><div></div><div></div><div></div><div></div><div></div><div></div><div></div><div></div><div></div><div></div><div></div><div></div><div></div><div></div><div></div><div></div><div></div><div></div><div></div><div></div><div><strong><span style="font-size:180%;color:#3333ff;"></span></strong></div><div><strong><span style="font-size:180%;color:#3333ff;"></span></strong></div><div><strong><span style="font-size:180%;color:#3333ff;"></span></strong></div><div><strong><span style="font-size:180%;color:#3333ff;"></span></strong></div><div><strong><span style="font-size:180%;color:#3333ff;"></span></strong></div><div><strong><span style="font-size:180%;color:#3333ff;"></span></strong></div><div><strong><span style="font-size:180%;color:#3333ff;"></span></strong></div><div><strong><span style="font-size:180%;color:#3333ff;"></span></strong></div><div><strong><span style="font-size:180%;color:#3333ff;"></span></strong></div><div><strong><span style="font-size:180%;color:#3333ff;"></span></strong></div><div><strong><span style="font-size:180%;color:#3333ff;">Many congressional Democrats condemned Uribe for daring to chase the murderous, kidnap-happy </span></strong></div><div><strong><span style="font-size:180%;color:#3333ff;">terrorists into a nation that fawns over the drug-running revolutionaries.<br /><br />Many of them, too, sided in the resulting border flare-up with Uribe's mortal enemy in South American, Hugo Chavez, the leftist president of Venezuela</span></strong> whose popularity in Congress is directly proportional to his hostility to Bush.<br /><br /><br /><strong><span style="font-size:180%;color:#33ff33;">Trade protectionism</span></strong>, and the economic menace that surely would accompany it, is in the air this election season.<br /><br /><br />But snubbing a trade deal with staunchly democratic Colombia - a deal that is pure win-win for the U.S. - makes no sense, regardless.<br /><br /><br /><strong><span style="font-size:180%;color:#33ff33;">Congress is protecting no one by fighting the Colombia trade agreement. It should approve the measure now.</span></strong></div>ITSSD Charitable Missionhttp://www.blogger.com/profile/00790887154748866904noreply@blogger.com0tag:blogger.com,1999:blog-7037944389322160928.post-30872811556571267492008-03-26T20:42:00.000-07:002008-10-15T15:05:53.825-07:00Europe Shouldn't Wait for Hillary Or Obama If It Wishes To Secure Further Trade Liberalization During the Doha Round<a href="http://www.iht.com/articles/2008/03/10/business/rtrinside11.php">http://www.iht.com/articles/2008/03/10/business/rtrinside11.php</a><br /><br /><strong><span style="font-size:130%;">Prospects grim as negotiators push for a global trade deal<br /></span></strong><br /><br />By Paul Taylor<br /><div><div><br /><div><br />Reuters<br /><br /><br />Monday, March 10, 2008<br /><br /><br />International Herald Tribune<br /><br /><br />BRUSSELS: To hear some U.S. presidential candidates and European leaders talk, you would think <strong><span style="font-size:130%;">hard times lay ahead for advocates of free trade</span></strong>. </div><br /><div><a href="http://a.abcnews.com/images/Politics/obama_hillary_canada_080229_ms.jpg"><img style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 200px; CURSOR: hand" alt="" src="http://a.abcnews.com/images/Politics/obama_hillary_canada_080229_ms.jpg" border="0" /></a><span style="color:#ffff00;"><strong><em><span style="font-size:180%;">Senators Hillary Rodham Clinton and Barack Obama in the Democratic primaries are criticizing the North American Free Trade Agreement</span></em></strong> </span><strong><em><span style="font-size:180%;color:#ffff00;">with Canada and Mexico and vowing to renegotiate it to protect American workers.<br /></span></em></strong><br /><br /><strong><span style="font-size:130%;color:#ffcc00;">Clinton, with strong backing from U.S. organized labor, has advocated a "time out" in trade liberalization</span></strong> and <strong><em><span style="font-size:130%;">questioned whether the theory of comparative advantage that underpins free trade still applies in the 21st century</span></em></strong>.<br /><br /><br />On the other side of the Atlantic, <strong><em><span style="font-size:130%;color:#ff0000;">President Nicolas Sarkozy of France has urged Europeans to stop being naïve about trade and to develop "a real system of community preferences" <span style="font-size:180%;color:#33ff33;">to protect European Union agriculture and industry </span>from unfair competition</span></em></strong>. </div><br /><div><strong><span style="font-size:180%;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgC8iCHsyDI3w75Jf3Y2d0aY_TLLkZWJ_GT0uwQA1xxvl0rNbF72N2cseA4g0oX3ZhGclbFdAyxwMnNR_EpDjOjxQ1RHi4adODx9dTvvy44nIMx0jUm7yWKcjqDt-4cSJll6KEq5Aeu_GdE/s1600-h/fortress+europe+I.jpg"><img id="BLOGGER_PHOTO_ID_5257500243633698450" style="FLOAT: left; MARGIN: 0px 10px 10px 0px; WIDTH: 177px; CURSOR: hand; HEIGHT: 213px" height="188" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgC8iCHsyDI3w75Jf3Y2d0aY_TLLkZWJ_GT0uwQA1xxvl0rNbF72N2cseA4g0oX3ZhGclbFdAyxwMnNR_EpDjOjxQ1RHi4adODx9dTvvy44nIMx0jUm7yWKcjqDt-4cSJll6KEq5Aeu_GdE/s320/fortress+europe+I.jpg" width="169" border="0" /></a><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiqngaNnqaxQIDU_bU1XdSbPw4lLsiHgU1Bw0aoluBQGWv9XOZi3UUxPVAMR4E78uOpzSkrqd03SKa7lyohY2sYxV2Gzx6PzyAvmT7TMZOc6wutYah4SwkrXvBuORlsJqE0lEnL2j2h6TIy/s1600-h/fortress+europe+II.jpg"><img id="BLOGGER_PHOTO_ID_5257500684769503874" style="FLOAT: left; MARGIN: 0px 10px 10px 0px; CURSOR: hand" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiqngaNnqaxQIDU_bU1XdSbPw4lLsiHgU1Bw0aoluBQGWv9XOZi3UUxPVAMR4E78uOpzSkrqd03SKa7lyohY2sYxV2Gzx6PzyAvmT7TMZOc6wutYah4SwkrXvBuORlsJqE0lEnL2j2h6TIy/s320/fortress+europe+II.jpg" border="0" /></a>[WHAT SARKOZY IS REALLY SAYING, IN NUANCED FRENCH FASHION, IS THAT, GIVEN THE PRESENT ERA OF GLOBALIZATION </span></strong></div><div><strong><span style="font-size:180%;">IT IS NOW TIME TO UPDATE FORTRESS EUROPE'S PROTECTIONIST DEFENSES WITH NON-TARIFF TECHNICAL BARRIERS TO TRADE DISGUISED AS 'CULTURAL PREFERENCES'] </span></strong></div><div><strong><span style="font-size:100%;"></span></strong></div><br /><br /><div><strong><span style="font-size:180%;">Political opposition has forced the EU's trade commissioner, Peter Mandelson, to delay changes in anti-dumping duties meant to take account of the interests of European firms that produce goods <em><span style="color:#ff0000;">in low-cost countries</span></em>.<br /></span></strong><br /><br /><strong><span style="font-size:130%;color:#66ffff;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg4JgJQK4Ie5GRsTUFga3XwTcksLOdm8bNF7riIj2YQUIni4l8R0H0Ij9573UNgqONtr_aE-kbi_TdQUyS9NMQoIgeNjb9Bw_Bvyms9R-HYORguLL7U7j54FSfRNrQdvWkewZ7DXEQ7r8WF/s1600-h/WTO1-Color_L.png"><img id="BLOGGER_PHOTO_ID_5257501795719094290" style="FLOAT: left; MARGIN: 0px 10px 10px 0px; CURSOR: hand" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg4JgJQK4Ie5GRsTUFga3XwTcksLOdm8bNF7riIj2YQUIni4l8R0H0Ij9573UNgqONtr_aE-kbi_TdQUyS9NMQoIgeNjb9Bw_Bvyms9R-HYORguLL7U7j54FSfRNrQdvWkewZ7DXEQ7r8WF/s200/WTO1-Color_L.png" border="0" /></a>Mandelson has broad powers to negotiate trade agreements on behalf of the 27-nation bloc, but France is doing its best to handcuff him and organized a caucus of 20 farm ministers last month to warn against further concessions on agriculture</span></strong>.<br /><br /><br />Brussels trade diplomats say that <strong><em><span style="font-size:130%;color:#ffccff;">the commissioner, who is British, has long been viewed with suspicion in many member states because of his liberal views on trade and that his influence may be waning</span></em></strong>.<br /><br /></div><div><strong><span style="font-size:130%;color:#33ffff;">All this sets a grim backdrop for negotiators at the World Trade Organization, who are preparing yet another "final push" for a global deal to cut tariffs and remove trade barriers. Their aim is to clinch a deal before President George W. Bush leaves office next January</span></strong>.<br /><br /><br />Turmoil on financial markets and a sharp economic slowdown, especially in the United States, have fueled calls for protecting jobs in wealthy countries.<br /><br /><br /><strong><span style="font-size:130%;"><em><span style="color:#ffff00;">The trade organization's director general, Pascal Lamy, says the downturn on both sides of the Atlantic should focus minds on the benefits of a trade agreement, not least because failure would damage confidence in the world economy</span></em>.</span></strong> Keith Rockwell, a spokesman for the agency, said, "Do you fix the roof when the sun is shining or when it's raining? Either way, it's still a good idea to fix the roof."<br /><br /><br /><strong><span style="font-size:180%;color:#33ff33;">Politically, a failure of the rules-based multilateral system to deliver progress on trade could undermine European hopes for a more ambitious international agreement in 2009 to curb the greenhouse gas emissions that are blamed for global warming.<br /></span></strong><br /><br /><strong><span style="font-size:180%;color:#ffcc00;">As with climate change, a trade deal requires concessions from big emerging nations like India, Brazil and China, which want to be able to protect key sectors of their economies from competition from rich countries</span></strong>.<br /><br /><br /><strong><em><span style="font-size:130%;">Those conflicts seriously threaten the trade talks, as does the reluctance of wealthy nations to reduce radically the longstanding protection of their farmers.<br /></span></em></strong><br /><br />"I share the skepticism that anything good will come out of the Doha Development Agenda," said Adam Posen of the Peterson Institute for International Economics in Washington, using the name given to the trade round that began in Qatar in 2001.<br /><br /><br /><strong><span style="font-size:180%;color:#3333ff;"><span style="color:#ffccff;">Posen said that whoever wins the White House in November, Congress will make trade conditional on labor and environmental standards to shut out cheap competition, mainly from Asia.</span><br /></span></strong><br /><br />Andre Sapir, a trade economist at the Free University of Brussels and former adviser to the European Commission, agrees that <strong><em><span style="color:#33ccff;">the climate in the United States is not favorable for new trade deals, although the Europeans should still push for one</span></em></strong>.<br /><br /><br />"You need some bad economic news to make a trade agreement necessary as a booster of confidence," he said. "But even if there is a deal now, the chances are that something is going to be reopened after the U.S. election."<br /><br /><br /><strong><span style="font-size:130%;">U.S. trade diplomats in Europe are using Clinton's rhetoric and fears of a more protectionist U.S. administration to try to focus on the need to complete a trade deal now.<br /><br /></span></strong><br /><strong><span style="font-size:130%;color:#ff0000;"><em>One senior diplomat, speaking on condition of anonymity because of the sensitivity of the issue, said his message to European counterparts was: "Don't wait for Hillary."</em></span></strong></div></div></div>ITSSD Charitable Missionhttp://www.blogger.com/profile/00790887154748866904noreply@blogger.com0tag:blogger.com,1999:blog-7037944389322160928.post-907062440468530332008-03-12T06:08:00.000-07:002008-03-12T06:20:11.169-07:00Other-Than-Trade Regulations: Do They Protect Foreign Investors, Domestic Industries or Local Employment??<a href="http://www.ft.com/cms/s/0/58699264-ef9c-11dc-8a17-0000779fd2ac.html">http://www.ft.com/cms/s/0/58699264-ef9c-11dc-8a17-0000779fd2ac.html</a><br /><br /><br /><strong><span style="font-size:130%;">Concern grows over global trade regulation</span></strong><br /><br /><br />By Alan Beattie<br /><br /><br />Financial Times<br /><br /><br />March 12 2008<br /><br /><br />Amid the noisy battering the North American Free Trade Agreement is taking from both Democratic presidential hopefuls, one recent statement from Hillary Clinton was particularly resonant. <strong><em><span style="font-size:130%;">“We will have a very clear view of how we’re going to review Nafta,” the New York senator said. “We’re going to take out the ability of foreign companies to sue us because of what we do to protect our workers.”<br /></span></em></strong><br /><strong><span style="font-size:180%;">[IS THIS MERELY POLITICAL PANDERING??]<br /></span></strong><br /><br />The treaties and tribunals that regulate international investment have become both more powerful and more controversial <strong><span style="font-size:130%;">as global trade becomes less about goods flowing across borders and more about multinationals siting abroad.</span></strong> Concern is growing not only among US presidential candidates but also among emerging market governments and development campaigners.<br /><br /><br /><strong><em><span style="font-size:130%;color:#ff0000;">There are now nearly 3,000 bilateral investment treaties (BITs) between countries worldwide, designed to protect foreign-owned companies from discrimination, arbitrary nationalisation or other unfair treatment by the host country government</span></em></strong>.<br /><br /><br /><strong><span style="font-size:130%;color:#ffff00;">The tribunals that settle disputes between investors and authorities are generally modelled on ad hoc commercial arbitration panels rather than public courts</span></strong>. The International Centre for the Settlement of Investment Disputes (ICSID), one of the world’s most prominent arbitration panels, operates out of the World Bank in Washington.<br /><br /><br />Argentina has been hit by dozens of arbitration cases since its financial crisis in 2001-02, when Buenos Aires forcibly changed contracts from dollars into pesos and froze utility prices to cushion the impact on Argentine consumers. Foreign companies including Mobil, France Telecom and Vivendi have won a string of rulings against Argentina at the ICSID, awarding them hundreds of millions of dollars in compensation for lost earnings.<br /><br /><br />But <strong><span style="font-size:180%;color:#ffff00;">Argentina has so far declined to pay any of the awards, and has argued that the financial crisis was an emergency that gave it permission under international law to breach contracts</span></strong>.<br /><br /><br /><strong><span style="font-size:180%;">[UNDER WHAT CIRCUMSTANCES DO GOVERNMENTS HAVE THE RIGHT TO EXEMPT THEMSELVES FROM INVESTMENT TREATY OBLIGATIONS??]</span></strong><br /><br /><br />The ICSID is also embroiled in a controversy involving Bolivia, which last year became the first country to announce its withdrawal from the ICSID’s jurisdiction. Bolivia lost a prominent case to Bechtel, the US engineering and construction company, after cancelling a water supply contract. It has argued that the tribunal should ignore cases filed after Bolivia gave the foreign investors notice to withdraw.<br /><br /><br />Meanwhile, ExxonMobil is claiming billions of dollars in compensation from Venezuela at the ICSID after walking away from an oil project following government attempts to take control.<br /><br /><br /><strong><em><span style="font-size:130%;color:#33ff33;">Development campaigners say the tribunals violate national sovereignty. A recent petition from 863 campaign groups including Friends of the Earth and the Sierra Club called on the ICSID to stop hearing cases against Bolivia. Sarah Anderson of the left-leaning Institute for Policy Studies said: “The global petition reflects growing concerns around the world about a system of investor rights that undermines democracy and human rights.”<br /></span></em></strong><br /><br />And as Mrs Clinton suggested, even the White House and Congress were surprised and disturbed when <strong><span style="font-size:130%;">the US ended up being on the end of several high-profile claims under Nafta. With companies from emerging markets like India and China investing abroad, the rich countries could find themselves increasingly targeted by litigation.<br /></span></strong><br /><br />Nonetheless, <strong><em><span style="font-size:130%;color:#ff6600;">the system of international investment arbitration continues to expand its reach. European and American business lobbies, often dominated by service sector companies like telecommunications, retailers and banks that invest abroad, are keen on new investment treaties and on adding investment rules to broader trade deals.</span></em></strong><br /><br /><br /><strong><span style="font-size:130%;color:#ffccff;">The US is pursuing BITs with the “Brics” (Brazil, Russia, India and China) group of emerging market countries. A US trade official says that Washington’s model for BITs deals with some of the problems encountered under Nafta by including rules against frivolous claims, along with consolidation procedures allowing multiple claims to be considered simultaneously rather than clog up the system</span></strong>. But the official adds: “It is inconceivable to think that we would sign a [BIT] without provisions for investor-state litigation.”<br /><br /><br />That aspect may prove a sticking point for some. Brazil, Latin America’s largest recipient of foreign direct investment, has traditionally been suspicious about investment treaties. A senior Brazilian foreign ministry official said recently that the Argentine example was “very politically visible” and that it would be enormously difficult to get investor-state arbitration through the country’s congress.<br /><br /><br />One Washington trade lawyer says: “The US business community clearly still likes BITs. But why Brazil or any other country would agree to sign one after looking at Argentina defeats me.”<br /><br />...................................................<br /><br /><strong><span style="font-size:130%;">Argentina case shows panel’s flaws<br /></span></strong><br /><br />Arbitration panels such as the International Centre for the Settlement of Investment Disputes (ICSID) aim to operate quietly – critics would say secretively – and quickly.<br /><br /><br /><strong><span style="font-size:130%;color:#33ffff;">An ad hoc arbitration panel convened from practising lawyers rather than a regularly sitting court with permanent judges, ICSID has a review committee with limited powers rather than a formal appeals process.<br /></span></strong><br /><br /><strong><span style="font-size:130%;color:#ffcc33;">Such a committee recently looked at one of ICSID’s rulings against Argentina</span></strong> – a $133m award to CMS, a US energy company – <strong><em><span style="font-size:130%;color:#ffcc00;">and concluded that, while the original panel had made “manifest errors of law”, it lacked the power to overturn the judgment</span></em></strong>.<br /><br /><br />Luke Peterson, editor of Investment Treaty News, a widely read briefing service, says: “Such a curious outcome has infuriated Argentina, at the same time as it has stoked debate amongst observers as to whether [ICSID] needs an overhaul – including perhaps an appeals court with greater powers to correct any mistakes.”<br /><br /><br /><strong><span style="font-size:180%;">The involvement of governments in the rulings raises the political stakes, particularly for a country such as Argentina in which politicians have repeatedly blamed foreign investors and institutions such as the International Monetary Fund for the country’s periodic crises</span></strong>.<br /><br /><br />A Washington trade lawyer says: “When the [ICSID] challenge committee says that a decision is flawed but still has to be enforced, they essentially make it politically impossible for the government of Argentina to pay.”<br /><br /><br />But for many lawyers, introducing an appeals procedure would defeat the whole object – to provide swift and binding decisions without recourse to sometimes slow, biased or corrupt national court systems. “In an ad hoc arbitration process, it makes no sense to have an appeal,” says Robert Volterra at the law firm Latham Watkins, the lead attorney for Bechtel in the Bolivia case.<br /><br /><br />“It is just one ad hoc group of lawyers evaluating the same facts and law as another ad hoc group of lawyers has just done.”<br /><br /><br />Copyright The Financial Times Limited 2008ITSSD Charitable Missionhttp://www.blogger.com/profile/00790887154748866904noreply@blogger.com0tag:blogger.com,1999:blog-7037944389322160928.post-16677095655701739812008-03-09T07:43:00.000-07:002008-03-09T08:17:43.800-07:00Policy Implications: Clinton and Obama on International Trade Policy, NAFTA, and SWF’s<strong><span style="font-size:130%;">Policy Implications: Clinton and Obama on International Trade Policy, NAFTA, and SWF’s<br /></span></strong><br /><br />By Osman Aziz<br /><br /><br /><em>ITSSD Intern, Blogmaster of the ITSSD Journal on Economic Freedom<br /></em><br /><br />Much rhetoric has been exchanged on the campaign trail regarding the status of free trade and the future (or lack thereof) it has in American foreign policy. <strong><em>Both democratic hopefuls Hillary Clinton and Barack Obama have been in a perpetual state of flux over the status of NAFTA (North Atlantic Free Trade Agreement) and the perceived ills that it has accrued for the people of America. However acidic such criticisms of free trade may have appeared on the cameras, questions abound to the actual positions of each candidate on the undeniable progress that trade liberalization has taken in the world</em></strong>. Given the track record, neither Obama nor Clinton actually appear to be enemies of a free trade paradigm, which begs the question as to why such critical stances need to be taken against free trade agreements that, on the whole, have provided greater benefits than damages.<br /><br /><br />“In the minds of hard-core opponents of free trade, both Mrs. Clinton and Mr. Obama have checkered records in the Senate on trade agreements. Both voted against the Central American Free Trade Agreement but supported a trade pact with Peru last year, citing the inclusion of labor and environmental provisions that were not part of Nafta. Opponents, however, said crucial provisions in Nafta that led to jobs being shipped overseas were also part of the Peru agreement. Mrs. Clinton and Mr. Obama were also among only a dozen Senate Democrats who voted for a trade agreement with Oman in 2006.”[1]<br /><br /><br /><strong><span style="font-size:180%;color:#ffff00;">The questions being framed as a position of political pandering is undeniable given the records that both candidates have on trade; but the irrefutable consequences of publicly assailing free trade policies could carry over to other aspects of international trade policy</span></strong>. Recent controversy over the ascendancy of Sovereign Wealth Funds (‘SWFs’) and the apparent lack of “transparency” that they possess has sparked a backlash from Democrats and protectionists alike who point to, without proper knowledge, the inherent “political” interests involved in such funds. Senator Obama’s position on altering the tax code to subsidize businesses that keep jobs in the US also smack of an underlying misunderstanding of economic efficiency and the effect such a position can have on inflating the prices of consumer goods by retaining inefficient employment capacities for higher wages.[2]<br /><br /><br /><span style="color:#33ff33;"><strong><em><span style="font-size:180%;">The Senators' indirect call for more governmental intervention in the reshaping of NAFTA and the US’ global trade policy seems to reflect a broader ideological agenda. First, it would seem that the candidates are attempting to label ‘trade’ as the cause of what many anticipate will be a US recession. Second, it appears that the Clinton-Obama strategy is to cast more not less governmental intervention in the marketplace as the necessary ‘change’ or ‘solution’ that will bring the US out of its current economic malaise</span></em></strong>.</span> However, with little to say about the causes and eventual outturn that the current subprime crises harbors with it, protectionism and the scepter of populism may only serve to drive the US economy into further disarray. What appears to underlie these sentiments, are the overlooked benefits that such agreements as NAFTA have really had on the US and the region as a whole.<br /><br /><br />“<strong><span style="font-size:130%;color:#ffcc00;">While it is politically incorrect to say so, NAFTA has been good for all of North America.</span></strong> By opening the continent to investment and trade, capital has found more efficient uses, with benefits to producers and consumers alike. In NAFTA's first decade after 1993, trade between the U.S. and Mexico multiplied to $232 billion from $81 billion. Trade with Canada has also blossomed, with Canadian exports to the U.S. by surface transport rising 79% in a decade and U.S. exports to Canada increasing 38%. The deal also increased U.S. productivity. U.S. firms found they could be more globally competitive by putting some manufacturing in Mexico or Canada while retaining high-end production in the U.S.” [3]<br /><br /><br />By virtue of the fact that the same can be said regarding the projected benefits of the US-Peru FTA a year down the road reveals the hidden side that neither Senator is willing to uncover, namely <strong><em><span style="font-size:130%;color:#ffccff;">the increase in economic efficiency that is followed by the passing of such free trade agreements</span></em></strong>. The very fact that increases in real GDP for all three nations member to NAFTA by approximately 50% each is evidence unto itself of the successes it has yielded, adding further distress to either the withdrawal, or the amending of an agreement that has worked so far.[4] <strong><span style="font-size:180%;color:#ff0000;">Unilateral withdrawal from NAFTA, a trade agreement that has epitomized the inherent benefits of trade liberalization would be a fool hardy move and would send the wrong signal to the rest of the world regarding the US’s stance on international treaties, which up to this point has been maintained by a track record of trust and reciprocity</span></strong>. The fact that much rhetoric over NAFTA was staged in Ohio begs the question as why such sentiments are not being capitalized on in Texas. Given the fact that Ohio suffers from a six percent unemployment rate may help to explain the shifting positions of Senators Clinton and Obama (whether or not job loss can be attributed to NAFTA is a matter discussed later). The fact that such critical stances haven’t been assumed in Texas is evidence of the Democrats’ incessant need to position regarding the matter of free trade.<br /><br /><br />“As fiercely as they've fought in Ohio over the issue, the rivals haven't focused much on free trade in Texas, which has seen job growth and a huge spike in exports since NAFTA went into effect in 1994. ‘Every trade agreement has winners and losers,’ said Southern Methodist University economist Thomas Osang, who studies free trade. Texas had many of the industries poised to benefit, notably electronics and chemicals, and those industries outweighed losers such as lumber and furniture roughly 2-1.”[5]<br /><br /><br />Although Senators Clinton and Obama capitalize on protectionist and neo-mercantilist rhetoric in securing the votes necessary for election, the potential policy implications that such talk will have up to this point seems innocuous at best. <strong><em><span style="font-size:130%;color:#66ffff;">What should come at greater concern are new up and coming issues such as SWF’s and sparking further regional trade agreements after aggregate bilateral agreements stabilize macroeconomic policy. Hostility to these new issues have already arisen on the campaign trail, and with no definitive voting record to base any judgment off of, speculation becomes a tricky game</span></em></strong>. The recent move by the Department of the Treasury to increase oversight of SWF’s and the additional pressure being applied to the IMF, although not nearly as caustic as the perspective promoted by Clinton and Obama, smacks of the age old argument surrounding “oversight” and regulation.<br /><br /><br />“Second, we have proposed that the international community collaborate on the development of a multilateral framework for best practices. The International Monetary Fund, with support from the World Bank, should develop best practices for sovereign wealth funds, building on existing best practices for foreign exchange reserve management. These would provide guidance to new funds on how to structure themselves, reduce any potential systemic risk, and help demonstrate to critics that sovereign wealth funds can be responsible, constructive participants in the international financial system.”[6]<br /><br /><br />This sort of even-handed approach by US lawmakers and Hillary Clinton is diametrically opposed to the position adopted by Barack Obama. Citing that the largest investment arms are located predominantly in the Middle East, Obama crafted the debate surrounding SWF’s as a matter of the US’s reliance on oil from the region while ignoring wholesale the fact that such investment vehicles as the Abu Dhabi Investment Authority and Kuwait Investment Authority are reacting as developing countries would be expected to act. Although Senator Obama does echo the sentiment regarding oversight and greater transparency that Senator Clinton trail-blazed, it seems as though it is difficult to assess how these two candidates will react when placed in the Oval Office and are tasked with the responsibility to react to new trends originating from developing nations. <strong><em>The apparent dearth of information regarding such emerging trends as decoupling theory and international financial integration on the part of the politicians vying for office so far reflects a more deeper and profound misunderstanding of the macroeconomic policies that will need emerge in the near future to handle such trends. Subsidizing producers in the US that produce consumer goods will only provide for more expensive goods, which coupled with a weakening dollar, will severely affect foreign nations’ economies which rely off of a robust trade with the US</em></strong>.[7] It seems that the only <strong><span style="font-size:130%;color:#ffcc00;">ostensibly legitimate</span></strong> contentions that the Democrats have so far leveled against the existing establishment are issues over labor and environmental policies.<br /><br /><br /><strong><span style="font-size:130%;">Contentions over NAFTA: Why the Labor Rights/Environmentalist/Job Loss argument carries little to no weight</span></strong><br /><br /><br />The contention that NAFTA has provided for a negative paradigm in terms of labor rights and environmental protections reflect yet another disturbing trend, that of misinformation. Although much talk has been thrown about regarding the lack of a sustainable provision for labor rights in NAFTA, <strong><span style="font-size:130%;color:#66ffff;">the very fact that a supplemental labor stipulation under the North American Agreement on Labor Cooperation (NAALC) is provided for under NAFTA contradicts such claims.</span></strong>[8] <strong><span style="font-size:130%;color:#ffccff;">The existence of a five year strategic agreement through the Commission of Environmental Cooperation also provides a framework through which environmental policy can be worked out.</span></strong>[9] Both Hillary Clinton and Barack Obama lambaste NAFTA as the sole perpetrator in the loss of jobs across the board within the US to foreign firms. Although NAFTA never promised a net total increase in jobs themselves, the fact that overall productivity increased significantly during the years that NAFTA has been in affect provides a clear contradiction to the overarching contention of job loss.<br /><br /><br />“U.S. employment rose from 112.2 million in December 1993 to 137.2 million in December 2006, an increase of 25 million jobs, or 22 percent. The average unemployment rate was 5.1 percent in the period 1994-2006, compared to 7.1 percent during the period 1981-1993… Growth in real compensation for manufacturing workers improved dramatically. Average real compensation grew at an average annual rate of 1.6 percent from 1993 to 2006, compared to just 0.9 percent annually between 1980 and 1993”[10]<br /><br /><br />The hidden benefits of an increase in overall productivity translate into cheaper consumer goods that would have been much more expensive if left to inefficient producers within the US. Constituency, instead of fact, seems to be playing a more significant role in swaying the supposed sentiments of both Senators Clinton and Obama <span style="font-size:130%;"><strong><span style="color:#ff6600;">(although the leaked memo detailing Obama’s “political positioning” may serve to shed a different light on things)</span></strong>[</span>11]. Senator Clinton, whose reliance on the AFL-CIO has pushed her to a more protectionist stance, differs marginally from Senator Obama, whose support hails from the Teamsters and the Service Employees International Union, both of which benefit from increased trade with other nations.[12] <strong><span style="font-size:180%;color:#33ff33;">Without a clear agenda from either democratic candidate on what they see as the ills of NAFTA and free trade, it seems as though the stances that each candidate has so far amplified has been done so with more emotion than substance.</span></strong> The three primary contentions that each candidate has regarding NAFTA specifically are addressed already within the agreement or are on their way to being accomplished under the current framework, leaving much to be asked about the actual disagreements each candidate has with not only NAFTA, but with free trade as a progressive paradigm.<br /><br /><br />[1] The New York Times. Despite NAFTA Attacks, Clinton and Obama Haven’t Been Free Trade Foes. February 28, 2008.<br />[2] The Wall Street Journal. CAPITAL: Decoding Candidates on Trade. February 21, 2008<br />[3] The Wall Street Journal. Unilateral Democrats. February 28, 2008<br />[4] US Department of Commerce. NAFTA-A Success for Trade. October 2007<br />[5] Todd J. Gillman, Gromer Jeffe. McClatchy - Tribune Business News. Punches Fly over Trade, Rival Tactics as Democrats Debate in Ohio. Washington: Feb 27, 2008.<br />[6] US Department of the Treasury. Under Secretary of International Affairs David H. McCormick Testimony Before the Joint Economic Committee. February 13, 2008<br />[7] The Economist. Finance and Economics: An Independent Streak: Decoupling 1. Jan. 26th 2008<br />[8] Office of the US Trade Representative. NAFTA-The Road Ahead. (2007)<br />[9] Office of the US Trade Representative. NAFTA Environment Ministers Adopt Trade and Environment Stratgeic Plan. (06/23/2005)<br />[10] Office of the US Trade Representative. NAFTA Facts: NAFTA Benefits. (October 2007)<br />[11] Financial Times. Obama under fire over NAFTA Memo. March 3, 2008<br />[12] Bhagwati, Jagdish (Financial Times). Obama’s free trade credentials top Clintons. March 3, 2008ITSSD Charitable Missionhttp://www.blogger.com/profile/00790887154748866904noreply@blogger.com0