LAWCOMM 738 - Special Topic: Twenty-first Century Trade Agenda

Lecturer biography

Professor Jane Kelsey specialises in international economic law and its implications for domestic policy and regulation. Since 2012 she has actively monitored the Trans-Pacific Partnership Agreement, the Regional Comprehensive Economic Partnership and the Trade in Services Agreement, among others, and recent moves to expand the World Trade Organization agreements. In addition to extensive academic writing, Jane works on the ‘inside track’ by analysing leaked texts, briefing negotiators from developing countries, running training workshops for governments and civil society, and writing expert reports for affected sectors, such as public health policy makers and global unions.

Course outline

The past decade has seen the rise of mega-regional trade, investment and economic integration agreements, such as the Trans-Pacific Partnership Agreement, Trade in Services Agreement and Transatlantic Trade and Investment Partnership, which share a largely common template, and the Regional Comprehensive Economic Partnership (involving China, India and ASEAN) which is more limited. Their proponents say they are writing a new rulebook, or a normative regime, for the global economy in the 21st century. The scope of these comprehensive agreements extends beyond traditional commodity trade to more ‘behind the border’ regulation of foreign investment, government procurement, state-owned enterprises, financial services, electronic commerce and intellectual property. That scope and scale has generated unprecedented critique and challenges. This course examines those, and several other, mega-regionals to identify the strategic objectives of their advocates, what is new and controversial about their norms and rules, and the relationship of these plurilateral agreements to the multilateral system of the WTO. It will examine three 21st century issues in depth: special foreign investment protections and investor-state enforcement; electronic commerce, including rights over data, privacy and cyber-security; and the implications for action on climate change.

Syllabus

Part One: The Contemporary Context

  • Geopolitical, commercial and political factors driving mega-regional agreements
  • The emerging web of mega-regionals, and their similarities and differences
  • The controversies and turbulence engulfing mega-regional negotiations

Part Two: The new 21st century rule-book

  • The interrelationship of chapters and new rules
  • Relationship of mega-regionals to the multilateral regime
  • Proposals to insert ‘new issues’ in the WTO

Part Three: Three contemporary challenges for the 21st century

  1. Investment protections and investor-state dispute settlement (ISDS): the rules, the controversies, responses in the mega-regionals, the EU’s proposal for a standing investment court, and alternative model investment agreements
  2. Electronic commerce: the rules for (non)regulation of the Internet and data, the controversies, the implications for competition law, tax, privacy, cybersecurity
  3. Climate change: the commodity trade model, the emissions trading scheme, constraints on climate change mitigation, protections and defences, and the interface with the United Nations Framework Convention on Climate Change

Objectives

The main objective of the course is to generate understanding of, thinking about and engagement with the rapidly evolving legal arena of international economic agreements, at a time of its rapid expansion and unprecedented turbulence (viz. the Trump administration and Brexit).

The course engages these questions in some depth by examining three highly topical contemporary regulatory challenges: foreign investment, the digital economy, and climate change.

Learning outcomes

Students who successfully complete the course should have a sound understanding of:

  • the significance of mega-regional trade and investment agreements and the dynamics driving their promotion and rejection;
  • how the conceptual foundations and new features of mega-regional agreements might constitute a new normative regime for the 21st century global economy;
  • the detailed legal rules and obligations affecting three core issues for the 21st century: foreign investment, the digital economy, and climate change; and
  • the implications of mega-regional agreements for the multilateral trading system.

Assessment

Assessment is 90% research paper, on a topic agreed with Professor Kelsey and 10% class presentation related to the topic of the student’s research paper. Depending on the number of students in the course, presentations will be clustered around similar topics. In addition, each student is expected to contribute to, and lead a discussion during, the course. Students will be marked on their individual contributions.

Criteria and marking

Students will be individually assessed on the quality of their contributions with reference to the following criteria:

  • The extent to which the student has identified the important and relevant issues
  • The depth and thoroughness of understanding of the seminar materials
  • The strength and clarity of the arguments presented
  • The extent to which issues are placed in their wider context
  • The extent to which the student has displayed a grasp of the doctrinal and normative issues

Course details

Semester: Two
Type: Intensive
Points: 30
Dates: 19-21 July and 23-24 July 2018
Venue: Building 810, Room 3.40
1-11 Short Street

Contact details

Postgraduate Student Adviser 
Law Student Centre
Level 2, 1-11 Short Street

Email: postgradlaw@auckland.ac.nz