May 2012

VJIL Symposium: Jason Webb Yackee Responds to Bjorklund/Litwin and Wong

[Jason Webb Yackee is an Assistant Professor of Law at the University of Wisconsin School of Law.] This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below. It’s a pleasure to receive such thoughtful (and in Professor Wong’s case, humorous) feedback on my short VJIL Essay, and I greatly appreciate their engagement with the piece. I intended the Essay to be provocative but not absurd in its policy recommendations. My main suggestion (that states should think seriously about incorporating “corruption defense” in their investment treaties) is, I think, not inconsistent with the views of either commenter. Neither is my more basic suggestion, which is that even in the absence of corruption-specific BIT language, the fact of an investor’s involvement in public corruption related to its investment is likely to be of legal relevance to the investor’s ability to fully access the procedural and substantive protections of BITs. In other words, I think that we would all probably agree that there is already a viable “corruption defense,” and also that it might be useful to better specify the contours of the defense through explicitly corruption-related treaty language. Where we primarily differ is on the desirable contours of the defense. My scheme is self-consciously pro-state. It imposes serious consequences on the investor who engages in corruption. It is, as Professor Bjorklund accurately points out, supply-side in its focus, just as are the U.S. Foreign Corrupt Practices Act and its non-U.S. equivalents. This supply-side focus bothers Professors Wong and Bjorklund. It seems unfair to them to exclusively punish investors when corruption, by its nature, takes two to tango. It doesn’t bother me as much to sanction one partner and not the other. My premise — unstated in the essay, I admit — is that the supplier of corruption (here, the investor) is probably in some meaningful sense the “least cost avoider” of corruption. The tort law equivalent is a liability regime that places the full cost of compliance on the person who throws a banana peel on the sidewalk, rather than on the inobservant pedestrian who slips on it and falls. My sense (and it is just that at this point) is that it is comparatively difficult for developing countries already afflicted with corruption to prevent it, let alone to eradicate it. It is hard for states to monitor and control the actions of their agents, or to adjust incentive structures to discourage corruption. In contrast, corporations have an advantage in implementing effective training and compliance programs, in disciplining corporate actors who violate corruption laws, and in rewarding those who abide by corporate anti-corruption policy. Indeed, corporations are already spending heavily to implement effective corruption-prevention programs in order to avoid violations of or liability under the US and UK anti-bribery statutes, the penalties for violation of which can be immense. I would suggest, in effect, that the BIT regime should piggyback on these efforts by imposing on companies whose compliance systems fail the additional cost of the loss of their BIT privileges, rather than insisting that the high-cost avoider — the state — be expected to successfully duplicate the already expensive anti-corruption investments of multinational corporations.

VJIL Symposium: Jarrod Wong Comments on “Investment Treaties and Investor Corruption”

[Jarrod Wong is an Associate Professor of Law at the University of the Pacific McGeorge School of Law.] This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below. This intriguing Essay by Jason Yackee proposes that host states may well have a corruption defense against claims brought by investors under bilateral investment treaties (BITs) based on underlying investment contracts that, while facially unobjectionable, have been procured by bribing public officials. The argument extrapolates nicely from the denial of claims in an arbitration, decided in 1963 by Judge Lagergren, involving a politically well-connected Argentine seeking to enforce a “commission” contract guaranteeing some percentage of state contracts awarded by Argentina to the foreign investor, and in the World Duty Free ICSID case, in which the investor sought compensation for expropriation by Kenya of a concession acquired by bribing the then President of Kenya. While neither claim arose under BITs, both were denied on grounds of violating international public policy, which one --- or least these tribunals --- might conceivably extend to BIT claims. However, I wondered whether Yackee, in his determination to clear a path to the promised land, sufficiently acknowledges the perils on the road. For instance, neither tribunal above was expressly authorized to apply international law; indeed, ICSID tribunals --- which determine many BIT claims --- are to apply “applicable” international law only “in the absence of [the parties’ agreement on applicable law].” While noting this fact, Yackee was prepared to interpret the willingness of both tribunals to invoke (with how much deliberation?) international law as indicating an inherent authority to do so, rather than question the assumption. All the more troubling when the supposed “rule” of international law applied is of the nebulous variety conveniently labeled “international public policy.” (The wry among us might freshly inquire as to how this description differentiates other international law rules.) Shouldn’t we require such policy to crystallize into something akin to customary international law before permitting its application under these tenuous circumstances? Further, should the host state bear no responsibility when a state official accepts the bribe and is equally culpable? The World Duty Free tribunal neglected to weigh this fact in the context of international public policy, although it considered the issue under applicable national laws, only to hide behind Latin maxims ---- the in pari delicto and ex turpi causa principles --- in refusing to calibrate the equities more precisely. (Really? The President of Kenya walks off with $2 million, and the best the Tribunal’s got is a dead language?) Would the World Duty Free outcome not perversely incentivize host states to encourage bribery behind dummy anticorruption legislation since this gives license to flout BIT obligations?

VJIL Symposium: Andrea Bjorklund and Daniel Litwin Comment on “Investment Treaties and Investor Corruption”

[Andrea K. Bjorklund is currently the Visiting Professor (Guest of the L. Yves Fortier Chair in International Commercial Arbitration), McGill University Faculty of Law; she is also a Professor of Law at the University of California, Davis. Daniel Litwin is a B.C.L./LL.B. Candidate, McGill University Faculty of Law.] This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below. Thank you very much to the Virginia Journal of International Law and Opinio Juris for hosting this series of discussions. We are very happy to participate. Jason Yackee’s Essay takes what might be described as an orthodox position on corruption. It rests on a long line of international commercial arbitration precedents whose focus has consistently been on the “supply” side of corruption and not on its “demand” side. (We are grateful to McGill student David Rapps for this nomenclature). This focus on the “bribe payer” (supply side) is reminiscent of the approach taken by the US Foreign Corrupt Practices Act and the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. Professor Yackee adopts this same focus in suggesting that an investor’s corrupt or fraudulent behavior should prevent it from taking advantage of the protections afforded by any applicable investment treaty. Yet experience in the fight against drug trafficking suggests that seeking to limit supply without eradicating demand will never be successful. The UK apparently takes this view: its recently-adopted Bribery Act penalizes both bribing (supply side) and receiving bribes (demand side). The same even-handed approach to fighting corruption is present in the anti-bribery laws of Germany and of China. We too believe that if both an investor and a host state engage in corrupt behavior, sanctioning both is the best way to achieve the goal of eradicating corruption that has animated the international community (at varying levels of enthusiasm) for the past several decades. Like Professor Yackee, we agree with the position taken by the tribunal in World Duty Free v. Republic of Kenya that corruption is properly viewed as a violation of transnational public policy or truly international public policy. We cannot, however, agree with his refusal to adopt a balanced approach that would proportionally ascribe blame to all parties involved in a corrupt exchange. Penalizing only the party actively committing the wrong is reminiscent of the approach taken in the investor misconduct cases cited by Professor Yackee. But in both Inceysa Vallisoletana S.L. v. Republic of El Salvador and Plama Consortium Ltd. v. Republic of Bulgaria the investors were guilty of misrepresentation, a unilateral offense involving a single guilty party. Since corruption is normally bilateral, any parallels between cases involving misrepresentation and corruption should be properly nuanced.

VJIL Symposium: Introducing “Investment Treaties and Investor Corruption”

[Jason Webb Yackee is an Assistant Professor of Law at the University of Wisconsin School of Law.] This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below. Thank you very much to the Virginia Journal of International Law and Opinio Juris for...

VJIL Symposium: Alvaro Santos Responds to Professors Howse and Lang

[Alvaro Santos is currently an Associate Professor of Law at the Georgetown University Law Center.] This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below. I am grateful to Professors Robert Howse and Andrew Lang for their comments on my Article. I am an avid reader of their work and am honored for the opportunity to have this exchange. My Article argues that contrary to the commonly held assumption that WTO legal obligations overly restrict countries’ regulatory autonomy, there is still flexibility in the system for countries to carve out regulatory space and pursue heterodox domestic economic policies. The Article seeks to show that often the biggest obstacles to experiment in domestic economic policy are not the trade legal obligations but the beliefs that assign to the WTO a specific form of trade liberalization. These habits of thought assume a determinate meaning in what constitutes a trade distortion when these determinations are in fact the result of policy and value-laden choices. One concrete implication is that contrary to what is often assumed, the hands of the policy decision-makers in developing countries are not tied. Both Professors Howse and Lang seem to agree with the Article’s thesis about the existence of greater policy flexibility in the WTO and raise important points about its implications. I would like to respond by highlighting three themes that stem from their comments: the role of technical expertise, the institutional strength of the WTO’s Dispute Settlement Body (DSB) and the conceptual scope of policy autonomy. First, let me say a word about technical expertise. Professor Robert Howse’s work has been at the forefront of showing the wider range of policy choices available under the WTO agreements. In his response Howse provides an excellent example of narrowing down of policy flexibility using the TRIPs agreement. Although compulsory licensing is often interpreted as being available only in cases of emergency, it is indeed generally available. Howse emphasizes the importance of independent expertise on WTO law for developing countries. A kind of expertise that does not take for granted the conventional wisdom prevalent in the global trade policy elite, the WTO Secretariat or powerful interest groups but that looks instead at how to serve the needs of developing countries. This point relates to the concept of “development legal capacity”, which I use to argue that knowledge and expertise can be deployed to contest dominant interpretations of WTO to experiment domestically with heterodox economic policies. Howse makes clear that different political, social and philosophical views animate different interpretations of what the WTO obligations mean. Here, as in much of his work there is an impetus for the democratization of the global trade regime and for a vibrant public debate about the values we want the system to embrace that I find compelling. Similarly, Professor Lang notes that if developing countries are to be successful in advancing their economic agendas they ought to pay attention not only to their legal capacity in litigation but to the structural conditions that influence the receptivity or the impact that their arguments will have on legal interpreters. I agree and indeed regard countries’ developmental legal capacity as encompassing that kind of work. Lang points to the role of public criticism in the environmental cases. Similarly, one could see the access to medicines campaign in the context of the AIDS epidemic as another important example. Developing countries like South Africa and Brazil, as well as many NGOs, managed to reframe the understanding of TRIPs so that it could not be read to limit states’ rights to pursue their public health objectives. Thus, I agree that countries’ legal capacity and lawyering strategies can’t be limited to litigation. Countries need to devise strategies that would make their arguments gain traction in Geneva and among the trade policy network. This could include very visible work like public campaigns and forging political coalitions as well as the less visible and more gradual work of WTO committees, as Lang has examined elsewhere.

VJIL Symposium: Andrew Lang Comments on “Carving Out Policy Autonomy for Developing Countries”

[Andrew Lang is a Senior Lecturer in Law at the London School of Economics and Political Science.] This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below. It is a pleasure to be asked to comment on Alvaro’s most recent paper on ‘Carving out Policy Autonomy for Developing Countries in the World Trade Organization’. I spent a happy few hours reading and digesting the thoughts that Alvaro offers in this paper, and am richer for the experience. I am in sympathy with essentially all of the starting points of the analysis: that WTO law is more ambiguous than is usually appreciated; that it therefore is potentially more flexible than is commonly acknowledged; and that law is not epiphenomenal to relations of power in global trade politics but rather partly constitutive of them. And I appreciate the importance of what I take to be the article’s core point: that building the ‘legal capacity’ of developing countries in the trade regime should mean more than just building their capacity to bring and win cases in the WTO, but more broadly to integrate developing countries’ WTO legal strategies much more closely with their development goals and policies, to shape the terms of their integration into the global trading order. One thought that occurred is that if this project is to be successful, then work on building the ‘capacity’ of developing countries in WTO dispute settlement needs to be complemented by research into the ‘receptivity’ of the dispute settlement system to the arguments that developing countries make. The power to shape the interpretation of the law in WTO dispute settlement, in other words, is not just a function of the legal capacities of the parties to a dispute, but also about the structural conditions which make certain legal arguments appear more convincing, persuasive, institutionally appropriate, textually grounded, and so on to legal interpreters. Alvaro tells the story of the evolution of the law through US litigation of the Tuna and Shrimp disputes as an illustration of the winning strategies of Repeat Players, which might usefully be replicated by developing countries. But isn’t it also possible to explain the change in the law over the course of these cases as in part a response on the part of the regime to its greater public visibility and the rise of public criticism of the WTO? Presumably both play a role – the point is simply to say that building the capacity of developing countries to use the WTO dispute settlement system strategically would ideally be complemented by work on the conditions which make the dispute settlement system receptive (or not) to the strategies that developing countries thereby pursue. A related thought has to do with the pressures that this project will place on the WTO dispute settlement system. Alvaro, and other writing in this area, are right to say that struggles over the interpretation of WTO law are likely to become an even more central aspect of global trade politics over the next decades, partly as a result of more and more Members building their legal capacity in precisely the way Alvaro describes. Is the dispute settlement system equipped at present to respond to the challenges that this will pose? Does it currently possess a sufficient set of juridical tools and techniques to carve out both a legitimate and effective role for itself as it finds itself ever closer to the centre of trade politics? One of the tasks for the next decade or so it to try to craft a way of ‘doing law’ in international economic governance which bears the weight that strategies such as those described in this article will necessarily place on it.

VJIL Symposium: Robert Howse Comments on “Carving Out Policy Autonomy for Developing Countries in the World Trade Organization”

[Robert Howse is the Lloyd C. Nelson Professor of International Law at New York University School of Law.] This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below. Professor Alvaro Santos's Article brilliantly illustrates how developing countries can use effectively the WTO dispute settlement system not only to defend but to promote their chosen economic developing strategies, even where these (as in the case of Brazil) diverge considerably from the neo-liberal, Washington Consensus approach that is often assumed, partly erroneously, to be embedded in the WTO treaties. His Article raises the question of whether the policy space available under the treaties is inadequate or whether in fact developing countries have been in some cases overly-influenced by what elites with a neo-liberal orientation have told them the provisions in question mean. To my mind, one of the clearest examples of the problem of who controls the understanding of what the treaty means is that of compulsory licensing under TRIPs. I hear it again and again suggested that TRIPs only allows compulsory licensing if there is some kind of emergency or crisis. This is simply not so. The TRIPs agreement merely imposes fewer conditions in the case of an emergency. But it makes compulsory licensing generally available. In some countries, there is no independent expertise about WTO law. The government and the people only hear the views of officials who have been more or less inducted into the global trade policy elite, or those of the WTO Secretariat, or those of interests who are using the notion of WTO illegality to block a policy they oppose for other reasons. Today, however, NGOs are playing an increasingly useful role in entering policy debates and contesting interpretations that are particularly restrictive of policy space (ICTSD's work on TRIPs is a good example). To be able to do this NGOs had to reposition themselves at least partly from being anti-globalization advocates trying to oppose and delegitimate the system to knowledgeable and shrewd lawyers who see the tensions, flexibilities, and balances in the existing norms that can be a basis for contestation within the legal framework as it stands. I am still struck by how journalists (many, though not all), who can be important in transmitting the meaning of WTO law in a domestic policy debate, will go to the same experts-mostly trade officials, lobbyists, or retired officials, and a few professors who are also consultants or closely connected to the WTO Secretariat-and take their views as the correct ones concerning the meaning of WTO law. When they are writing about questions of criminal law or constitutional law, journalists are much less naive: They often will try and get the views of experts with conflicting opinions, and they know that, at some level, political or social or philosophical views can matter to how one thinks the law should be interpreted and applied. In the case of trade law, they are often just looking for the conventional wisdom.

VJIL Symposium: Introducing “Carving Out Policy Autonomy for Developing Countries at the World Trade Organization”

[Alvaro Santos is currently an Associate Professor of Law at the Georgetown University Law Center.] This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below. I would like to thank the Virginia Journal of International Law for the invitation to participate in this online symposium and to Opinio Juris for featuring my article and hosting this discussion. In “Carving Out Policy Autonomy for Developing Countries in the World Trade Organization: The Experience of Brazil and Mexico”, I argue against the commonly held assumption that WTO legal obligations overly restrict countries’ regulatory autonomy. Despite the presence of restrictions, I claim that there is still flexibility in the system for countries to carve out regulatory space for themselves. That countries can expand their policy autonomy means that governments of developing countries have more agency and responsibility than development scholars typically admit. At the same time, however, the asymmetry of power and resources between countries does affect their experience in the system and thus influences the outcomes to a greater extent than liberal trade scholars usually acknowledge. This Article provides an account of how countries are creating policy space in a way that is currently underappreciated in existing academic literature. This space relies on the ability of countries, as repeat players (RPs), to make use of textual open-endedness in legal obligations, to seek out favorable rule interpretation, and to actively participate in the WTO system through strategic lawyering and litigation. To pursue this strategy, countries invest in “developmental legal capacity,” through which governments recognize the need to make gains in policy autonomy in order to pursue economic policy goals that may be in tension with the WTO’s free trade objectives. This Article draws on two case studies to examine the availability of policy space within WTO obligations and the role of developmental legal capacity. It analyzes the trajectories of Brazil and Mexico in the WTO to show two different experiences of RPs. The divergent lawyering and litigation experiences of Brazil and Mexico reflect different attitudes towards the free trade regime inaugurated by the WTO. Mexico seems to have considered WTO membership — part of its trade liberalization policy — as a strategy for economic growth in itself. It has largely abandoned its powers to selectively promote specific sectors in which it may create comparative advantages with greater growth potential. In contrast, Brazil seems to have combined a strategy to promote market access for its exports with domestic measures to promote economic sectors it considers valuable. When other countries in the WTO have challenged those measures, Brazil has defended them and thus expanded its policy space within the system.