Europe Archives - WITA http://www.wita.org/blog-topics/europe/ Mon, 02 May 2022 12:43:48 +0000 en-US hourly 1 https://wordpress.org/?v=6.6.1 /wp-content/uploads/2018/08/android-chrome-256x256-80x80.png Europe Archives - WITA http://www.wita.org/blog-topics/europe/ 32 32 Prospects for Transatlantic Cooperation in Biotech Policy—A U.S. Perspective /blogs/transatlantic-cooperation-biotech/ Fri, 11 Mar 2022 16:57:06 +0000 /?post_type=blogs&p=32687 There are multiple opportunities to advance solutions to major societal challenges by fostering transatlantic cooperation in biotech policy. But developing and applying them will require a return to science-based regulation...

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There are multiple opportunities to advance solutions to major societal challenges by fostering transatlantic cooperation in biotech policy. But developing and applying them will require a return to science-based regulation that advances safety while enabling, not deterring innovation.


A WORLD OF BIOLOGICAL POSSIBILITIES

Mutual self-interest provides a strong basis for transatlantic cooperation in biotechnology based on shared recognition of its vast potential to provide solutions to some of civilization’s most pressing problems. Thanks to explosive advances in our understanding of the many ways in which promiscuous nature has been manipulating DNA and RNA for the past billion years, it is widely anticipated that the 21st century will belong to biology. We are now at the point where our ability to innovate is constrained less by technical capability than by the limits of our imaginations. Multiple laboratories and companies on both sides of the Atlantic (and throughout the world) are pursuing promising applications, and experience confirms progress would be accelerated by cooperative approaches. But there are some considerable challenges, especially in agricultural and industrial contexts.

The most important rate-limiting factor in our ability to harness biological innovations to the challenges of feeding the world, sustaining human and environmental health, and addressing climate change, is the burden imposed by ill-considered regulations. Unless this bottleneck can be unblocked, the enormous potential for transatlantic scientific cooperation will not yield the necessary fruits.

DIVERGENT REGULATORY PATHS: PRECAUTION VS. OPENNESS TO INNOVATION

Existing policies, legislation, and regulations do little or nothing to advance human or environmental safety. Born out of understandable caution at the dawn of recombinant DNA technologies, today their most obvious impact is to obstruct and discourage research, development, and deployment of innovative solutions to various challenges. This is so despite an abundant record of production and consumption of new biotech products with enviable records of improved safety, superior sustainability, and widespread beneficial economic impacts. The benefits are so substantial that a pattern has emerged of farmers breaking the law to acquire and plant improved seeds in countries where governments have lagged in allowing access.

It is one thing to implement policies and regulations ostensibly designed to ensure safety; it is quite another to ignore vast data and decades of experience around the world to maintain obsolete policies and regulations that add nothing to safety or sustainability, but only impede our ability to use the most innovative, precise, and safest tools to address our gravest challenges.

In terms of regulatory policy and openness to biological innovations, the width of the Atlantic might be measured better in light years than miles or kilometers. As imperfect as regulations for the products of biotechnology are in North America, they are simply indefensible in Europe.

The United States decided in 1986, after years of study and consultation, that no new laws were required to ensure the safety of crops and foods improved through biotechnology. This was based on the finding that they present no novel hazards, and foreseeable risks of their development and use fall into categories with which humans have considerable experience from millennia of conventional plant and animal breeding. The United States therefore decided to regulate these novel products under existing authorities administered by the Department of Agriculture, the Food and Drug Administration, and Environmental Protection Agency. While implementation of this policy, the “Coordinated Framework,” has been far from perfect, it has been sufficiently predictable and science-based to enable an explosion of innovation, new product development, and commercial activity. Consequently, the United States has led the world to the present day wherein crops improved through biotechnology are now the global standard for quality seeds, delivering improved yields, safety, sustainability, and economic productivity around the world, with the lion’s share of benefits accruing on behalf of small farmers in developing countries. Europe took a different approach.

The European Union decided to regulate seeds improved through biotechnology as a novel class governed under new regulations specifically focused on an arbitrary category known as “GMOs” (for “genetically modified organisms”). The conceit was that because they represented gene combinations produced by mechanisms supposedly “not found in nature” (but actually ubiquitous) they must present novel hazards, even though none has ever been identified. These putatively novel hazards, despite the lack of any concrete manifestations, allegedly required dedicated, specific, “precautionary” regulations. The resulting regulatory regime proved so burdensome it led to the general collapse of agricultural biotechnology in Europe, which had played a leading role in its discovery and invention. Permissions for field trials proved almost impossible to obtain, products could not be developed and brought to market, academic labs abandoned the field, and the industry relocated most of its assets and activities to the Americas. And Europe became the world’s largest importer of commodity foods improved through biotechnology, only recently surpassed by China.

OPPORTUNITY FOR TRANSATLANTIC COOPERATION

Many scientists in the EU (and around the world) knew from the beginning that this was the wrong approach, yet the EU pushed its model internationally, with aggressive diplomacy, leading to emulation by many countries in the developing world, with equally unhappy results to those seen in Europe. But a growing number of scientists, policymakers, and even “green” NGOs that had originally opposed GMOs, now recognize the counterproductive results of this approach and are working to avoid repeating the same mistakes with gene editing. This shines a spotlight on the most important and potentially fruitful opportunity for transatlantic cooperation in biotechnology: the revival of science-based regulatory regimes in which the degree of regulatory oversight is proportional to the hazards involved, and regulation that enables, rather than discourages the safe development of innovative products. A return to and reaffirmation of these first principles would provide fertile ground for cooperation and coordination globally. Regulatory reform (everywhere, not just in the EU and its emulators, though the need is greatest there) provides fertile ground for transatlantic cooperation and coordination. We have robust models of proven approaches. Without such cooperation, other progress in developing and deploying innovative solutions through biotechnology will be impeded or foregone.

As to national security risks, just as with other risks, novelty attributable to biotechnology is elusive. One can do very nasty things with conventional bioweapons, and they are easily magnified with recombinant DNA techniques. At the same time, defensive capacities are also buttressed by biotechnology, as demonstrated by the rapid development of mRNA vaccines against SARS-CoV-2. There has been some good work done in this area, but this topic is worth exploring at greater depth. The OECD has a track record of thoughtful analyses with such topics. One possibility would be to build on that foundation by establishing a joint OECD/NATO working group to serve as a forum.

L. Val Giddings is a senior fellow at the Information Technology and Innovation Foundation (ITIF).

To read the full commentary from the Information Technology and Innovation Foundation, please click here.

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Russia Import Dependency Problem /blogs/russia-import-dependency-problem/ Fri, 04 Mar 2022 14:36:23 +0000 /?post_type=blogs&p=33171 There’s a lot of talk about Europe’s dependency on the Russian economy – especially the flow into Europe of oil, gas, grains, and some minerals like neon. While it is...

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There’s a lot of talk about Europe’s dependency on the Russian economy – especially the flow into Europe of oil, gas, grains, and some minerals like neon. While it is important for Europe to break this dependency, there is an undercurrent in some of the commentary about trade dependencies between the EU and Russia that suggests the escalation of sanctions to hit Europe harder than Russia. This is not correct.

Europe has had some trade sanctions against Russia since 2014, when the country first invaded Ukraine and annexed Crimea. This sanctions programme altered European exports and reduced its size. Europe’s exports of goods to Russia in 2021 was about 89 billion euro compared with 118 billion euro ten years prior. EU countries that are proximately close to Russia were then affected not just by EU sanctions but also Russia’s counter sanctions, for instance of agricultural products. But they weathered the storm quickly. For instance, Estonia’s exports of dairy products to Russia dropped by 66 percent between 2013 and 2014. However, the country’s exports of dairy products to other countries went up, leading to only a 1 percent decline in total dairy exports in that year.

A macro analysis of EU-Russia trade tells a different story about general dependencies. Obviously, the new sanctions will hurt the global economy. Russia is a global exporter of commodities that are traded globally, and the Russian invasion has already pushed up prices of many raw materials and agricultural commodities. There are products in which a significant supply comes from Russia, and which needs to be found somewhere else. As Poland prime minister Mateusz Morawiecki learned from its Australian counterpart when trying to replace Russian coal with coal coming from Australia, these adjustments take some time and require additional resources. There is also a lesson here: the concentration of market power in the production of any product carries geopolitical risks.

Uncoupling the Russian economy from the West will have costs but they will hit the Russian economy far, far harder. In 2020, less than 2 percent of EU total exports and imports went and came from Russia while for the Russian economy this percentage was equal to 34 percent. This difference alone shows how asymmetrical the economic effects of the sanctions will be. Add to that the geographical scope of the sanctions. Many countries are sanctioning Russia, leaving it with few chances to reallocate its total trade, while the sanctions only affect a small portion of Europe’s total trade. It is one thing to find new trading partners for 2 percent of your total trade. It is a totally different thing to find substitutes for one third of your total trade.

The effects of the Western sanctions on the Russian economy are proof that the Russian economy is much more intertwined with the West than most people think. Russian imports of goods and services as a percentage of its GDP were 21 percent in 2020, lower than the OECD average (26%) but larger than India (19%), China (16%), Brazil (15%), and the United States (13%). The EU is Russia’s main supplier of foreign goods, accounting for 34 percent of Russian total imports, significantly more than China which represents 24 percent. The EU and the US together supply 40 percent of Russian total imports. As a result of the trade and financial sanctions, and the associated financial and reputational risks that now come with any transaction with a Russian entity, this trade is rapidly shrinking to a fraction of what it was.

Figure 1 below shows Russian imports broken down by economic sector and its value as a percentage of Russia GDP between 2010 and 2020. The data shows that Russia’s main imports are machinery, chemicals, and other manufacturing goods, and that Russia depends on the rest of the world for the supply of many complex products. One factor explaining Russia’s sectoral trade profile and dependency is its poor labour productivity. Russian labour productivity in the industrial sector is 21 percent of US and 36 percent of EU’s labour productivity. In other words, the Russian economy needs five workers to do the job of one US factory worker.

Figure 1: Russian imports per sector and imported goods and services as a percentage of Russian GDP

Source: UNCOMTRADE, World Bank, authors’ calculations.

Moreover, Russia’s dependency on the West’s manufacturing capacity – particularly European – is shown in the value that foreign businesses add to the Russian economy. Four of every ten dollars of Russian demand for manufacturing goods came from outside Russia and the EU alone contributed 14 percent to Russian’s total demand of manufacturing goods. In comparison China – the factory of the world – added 9 percent. To pay for these imports, Russia exports minerals, oil, and gas. In 2020, exports of these products represented 59 percent of Russian total exports while Russian exports of machinery and chemicals were 5 percent and 6 percent respectively. Russia’s trade profile is one in which Russia exports minerals, oil, and gas and imports manufacturing products.

The effect of the sanctions in the Russian economy will be felt sector by sector as Russian companies stop receiving foreign products, technology, and expertise. Many imported products are relatively sophisticated, which will make finding alternative suppliers much more difficult. The Russian economy relies heavily on EU and US companies for many imported products. In 2020, there were 1,716 product categories (out of 4,385) with a value of €57 billion (28 percent of Russian total imports) for which at least half of Russia’s imports came from the EU and the US. Figure 2 plots each individual product category for which EU and US businesses supply at least 50 percent of Russian imports. The size of the bubbles corresponds to the value of the products. Some of the most important product categories were medicines, vehicles parts, IT components, machinery’s parts like valves and pipes, and iron and steel. Figure 2 also shows that for some product categories, Russia’s dependency on the EU and the US is much higher than 50 percent. There were €22 billion of Russian imported products for which 75 percent came from the EU and the US, €7 billion for which this ratio was 85 percent, and €2 billion for which more than 95 percent of Russian imports were sourced from the EU and the US. In comparison, there were only ten product categories (out of 9,000) with a value of €8 billion (0.5 percent of EU imports) that the EU buys mostly from Russia – and half of the import value of these products were oil and gas.

Figure 2: Russian imported product with half or more of imported value sourced from the EU and the US (2020)

Source: UNCOMTRADE, authors’ calculations.

Understanding Russian import dependency, the number of product categories, and value of these products that Russia imports from the EU and the US is crucial to appreciate the economic shock to the Russian economy. The sudden stop in many of these exchanges will be difficult to overcome. There are significant amounts of imports on machinery, pharmaceuticals, chemicals, transport equipment, and electronics that Russia buys from the EU and the US. Some of it can be imported from elsewhere, but trade substitution of this scale in an economy under siege and faced with hard Foreign Exchange sanctions will take a very long time.

Fredrik Erixon is a Swedish economist and writer. He has been the Director of the European Centre for International Political Economy (ECIPE) ever since its start in 2006. The Financial Times has ranked Erixon as one of Brussels 30 most influential people. 

Oscar Guinea is a Senior Economist at ECIPE. Oscar previously worked as an Economic Adviser at the Scottish Government in the Office of the Chief Economic Adviser on topics ranging from monetary policy to the impact of Brexit and migration on the Scottish and UK economy. 

Vanika Sharma is a Researcher at ECIPE. She is a recent Master’s graduate from Sciences Po, Paris in International Economic Policy with concentrations in Global Risks and East Asia. 

Renata Zilli is a Research Assistant at ECIPE. She is a recent graduate of the master’s degree in International Economics and Latin American Studies of the Paul H. Nitze School of Advanced International Studies of the Johns Hopkins University. 

To read the full commentary by the European Centre for International Political Economy, please click here

 

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The Coming Trade Sanctions Against Russia /blogs/trade-sancions-against-russia/ Wed, 19 Jan 2022 20:54:40 +0000 /?post_type=blogs&p=31942 President Putin is making sure that Russia dominates the early 2022 headlines. As Russia aligns its resources to invade Ukraine, the U.S. and European countries prepare to respond aggressively. It...

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President Putin is making sure that Russia dominates the early 2022 headlines. As Russia aligns its resources to invade Ukraine, the U.S. and European countries prepare to respond aggressively. It appears that nothing will deter President Putin from continuing forward. Russia has calculated that the risks and response from the West may be worth the upside to Russia.

Global companies should prepare for an aggressive response to any Russian aggression. The U.S. and European countries are promising to impose tough new sanctions against Russia. It is difficult to predict exactly the contours of the West’s response from a global sanctions perspective.

Russia’s invasion of Crimea in 2014 resulted in the comprehensive sanctions program against Russia. Some have argued that the 2014 sanctions program was not as tough as it needed to be. Congress eventually stepped in to tighten the sanctions program.

From a compliance standpoint, the Ukraine-Russia Sanctions Program starting in 2014 has presented difficult compliance issues. Aside from designating a number of Specially Designated Nationals (“SDNs”), OFAC created a comprehensive Sectoral Sanctions regime, which raised a number of difficult issues. Instead of prohibiting business with various designated entities and individuals, the Sectoral Sanctions imposed specific restrictions on a number of entities an individuals, including limits on new credit or debt, as well as specific prohibitions on Russia’s oil and gas industry.

The challenge in predicting just how far the United States and Europe will go in adopting new sanctions is that there are a number of alternatives, each of which presents some serious collateral consequences to the United States and Europe. In this regard, Europe, and in particular Germany, has moved forward with Russia to establish the Nord Stream 2 pipeline for the transmission of natural gas.

The United States would face stiff opposition if it decided to sanction or stop the Nord Stream 2 pipeline, but recently Germany has indicated it may halt the pipeline if Russia invades the Ukraine. Putin will have to take this into account.

Aside from the Nord Stream pipeline, the United States and Europe may impose tough new restrictions governing Russia’s access to international banks, and in particular, may cut off Russia’s access to the Society for Worldwide Interbank Financial Telecommunications (SWIFT) global system for financial transactions. SWIFT is an international cooperative that is essential for financial transactions in the global economy. Such an action would have a significant impact on Russia, although Russia has been exploring with China the possibility of setting up their own international financial network as an alternative.

If the United States and Europe decide to impose tough new sanctions on Russia’s oil and gas sector global companies could face a complex maze of compliance issues. For example, if Gazprom becomes a prohibited entity, United States and European companies will need a significant wind-down period to adjust. Given the impact this could have on oil and gas global energy markets, I expect that United States and European leaders will avoid such a harsh measure.

Another possible avenue for sanctions is the restriction on export of technology and communications products to Russia. The Russian economy is transforming by embracing new technologies and producing consumer goods in response to demand. By restricting technology products, Russia’s economy may be derailed slightly but a significant impact is not likely.

Apart from these possible measures, the United States and Europe could expand the current Sectoral Sanctions program and the list of SDNs. Russia, however, is adept at circumventing these restrictions and has been able to avoid the direct hits that the United States and Europe sought to impose in response to the invasion of Crimea.

Companies have to monitor this situation and prepare for a possible new regime of sanctions. Compliance will be at the forefront on this issue. Whatever happens, Russia is likely to decide on its next step in the coming weeks.

Michael Volkov is a former federal prosecutor with over 30 years’ experience in a variety of government positions and private practice. Michael has extensive experience representing clients on matters involving the Foreign Corrupt Practices Act, the UK Bribery Act, money laundering, Office of Foreign Asset Control (OFAC), export controls, sanctions and International Traffic in Arms, False Claims Act, Congressional investigations, and regulatory enforcement issues.

To read the full commentary from JD Supra, please click here

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Boosting Transatlantic Technology Cooperation /blogs/transatlantic-technology-cooperation/ Mon, 29 Nov 2021 18:38:43 +0000 /?post_type=blogs&p=31543 The EU and the U.S. need to address the real technology competitiveness challenge, which is China. During the era of the Cold War, the United States and Europe cooperated militarily,...

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The EU and the U.S. need to address the real technology competitiveness challenge, which is China.

During the era of the Cold War, the United States and Europe cooperated militarily, but competed economically. At the time, the Soviet Union posed a military, not an economic, threat to the West.

Today, in what could become a second Cold War, this time with China, the U.S. and Europe need to put great emphasis on cooperating economically.

The reason for this is straightforward: From the vantage point of each of the transatlantic partners, China poses a threat to our economic competitiveness.

More transatlantic technology cooperation needed

As such, it is incumbent upon the U.S. and the EU to build upon the initial steps of the new US-EU Trade and Technology Council (TTC). The goal must be, first, to reduce economic tensions between the two regions and second, to foster formal cooperation.

This is especially true with regard to supporting advanced and emerging technology development and production.

China: Unfair, state-directed capitalism

As Barry Naughton notes in The Rise of China’s Industrial Policy: 1978 to 2020, China has not only become the world’s manufacturing workshop.

It is also seeking to be the world leader in emerging technologies such as biotechnology, robotics, artificial intelligence and others.

What’s more, China is not only seeking absolute advantage on a host of technologies. It is seeking that advantage largely through unfair, state-directed capitalism.

To be sure, both the EU and the United States have industrial policies – but these policies mostly support foundational elements like workforce training, infrastructure and R&D.

China looking for dominance

In contrast, China’s predatory regime, especially subsidies to industry, goes way beyond what is considered acceptable industrial policy.

On top of that, the Chinese Communist Party compels technology transfer for market access, encourages intellectual property theft and operates tax and regulatory policies that discriminate against EU and U.S. firms.

That, combined with real strengths of the Chinese economy – a massive domestic market that lures in foreign investment, a massive technical and scientific labor force and improving research universities – mean that China is gaining rapidly technologically.

At the expense of EU and U.S.

That gain has and will come at the expense of the EU’s and U.S.’s global market shares in advanced technologies.

The result of that shift cannot be underestimated. Initially, China systematically assembled the components needed to be the manufacturing workshop of the world.

This systematic approach has made it hard, even with the Trump tariffs and measures by Japan and other countries, to move production out of China.

Silicon China?

Now, China is seeking to establish the same robust innovation ecosystem that will give it strong reinforcing strengths. China wants to be not Silicon Valley, but Silicon China – and not just for IT, but for every advanced technology.

The list of tech sectors China seeks to dominate is long. It ranges from aviation, battery technology, biotech, materials, clean energy, transportation, machinery and, of course, advanced IT.

If China were to achieve this leadership position, its lead will become self-reinforcing as competitors weaken and China’s advantages (e.g., capital, STEM workers, patents, tacit knowledge) improve.

Not another Asian tiger

If China were simply following the path of the Asian Tigers (Hong Kong, Singapore, South Korea and Taiwan), there would be less to worry about.

All of these countries, as well as Japan, only sought comparative advantage in some industries – as opposed to absolute advantage in most industries.

More crucially, they were (or quickly became) democracies that did not seek to challenge long-standing principles of the rule of law and human rights.

A Maoist global hegemon?

China not only seeks absolute advantage in most if not all advanced and emerging industries. Under the leadership of President Xi, it has become clear that China is reverting to its Leninist and Maoist authoritarian origins.

If China becomes the global technology leader, it reinforces China’s efforts to be militarily superior and a global hegemon. That would give China the ability to hold the West hostage for key products and supplies.

What to do? Three steps

There are three key steps the United States and Europe should take. First, stop fighting each other economically. Resolving the long-standing Boeing-Airbus feud and focusing on the real challenger – China’s Comac – was a good first step.

The United States eliminating its steel and aluminum tariffs on EU imports was a good second step. For its part, Europe, including member states like Germany and France, needs to dial back its “digital sovereignty” agenda which is targeted at the United States and U.S. companies.

Second, both regions need to ramp up cooperation against unfair Chinese economic practices, including cooperation on cybersecurity, investment screening, bringing trade cases before the WTO and cooperative export controls.

Time for more formal EU-US technology policy cooperation

Finally, and most ambitiously, it is time for more formal EU-US technology policy cooperation.

In a world where the development of technology has become much more technologically complex, neither region is large enough to specialize in all major technologies.

Therefore, each region should allow the other region’s companies to participate in government-funded industry research programs, like the EU’s Horizon 2020 program and similar U.S. programs that agencies like the National Science Foundation operate.

Moreover, as the governments roll out or expand specialized technology programs in technologies like 6G, energy storage, battery technology, autonomous systems, quantum computing and semiconductors, there should be joint collaboration between US and EU firms, universities and governments.

Finally, governments should review and minimize or eliminate regulatory barriers to science and technology cooperation, including enabling easier cross-border work of scientists and engineers.

Conclusion

The sooner the EU and the U.S. can stop seeing each other as the competition and work to address the real technology competitiveness challenge – China – the more likely both regions can ensure their economic futures, while upholding critical values.

Robert Atkinson is president of the Information Technology and Innovation Foundation, a Washington, D.C.-based technology policy think tank. He is also author of the book, The Past And Future Of America’s Economy: Long Waves Of Innovation That Power Cycles Of Growth.

To read the full commentary from The Globalist, please click here.

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Watching China in Europe – October 2021 /blogs/china-in-europe-2021/ Tue, 05 Oct 2021 19:18:15 +0000 /?post_type=blogs&p=30512 Not the Main Course   For months, October 5 has been marked in the calendar as the day when the European Union’s 27 leaders would talk about China. Officials in...

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Not the Main Course
 
For months, October 5 has been marked in the calendar as the day when the European Union’s 27 leaders would talk about China. Officials in Brussels had been preparing a special China paper to feed into the discussion. The idea was to have the first high-level exchange about China strategy in a year. In recent weeks, however, that plan was quietly abandoned. China will still be on the menu when leaders gather for their informal dinner in Slovenia on Tuesday, but it is no longer the main course. Instead, Afghanistan and—at the request of France—Australia’s submarine deal with the United States and the United Kingdom have thrust their way onto an agenda that now has the curious think-tanky title “The EU’s place in the world.”  “The initial idea was to have a China strategy discussion. Now the pure China discussion is unlikely to happen,” a senior EU official told me. “Once again, there is a feeling that we need to talk about urgent matters, not the broader trends.” After a meticulously choreographed first six months of Biden administration diplomacy on China, the past two months have been a disaster when viewed through the prism of the transatlantic relationship. The two sides did pull off their Trade and Technology Council (TTC) meeting in Pittsburgh on September 29, despite a late French push to postpone the meeting and then to water down its joint statement. –    But for advocates of a robust transatlantic agenda on China, recent events have been anything but encouraging—even if one sees the withdrawal from Afghanistan as necessary and Australia’s embrace of a defense alliance with the United States as understandable. “There is only one winner coming out of all of this and it’s the PRC,” the senior EU official said.

French Fury

Washington is going out of its way to make amends for having kept France in the dark on the submarine deal. Joe Biden came as close as a U.S. president ever comes to a public apology in the joint statement that followed his September 22 call with Emmanuel Macron. A statement from Quad leaders, days later, conspicuously welcomed the EU’s strategy for the Indo-Pacific. France’s Ambassador Philippe Etienne has returned to Washington and met with National Security Adviser Jake Sullivan, who is promising the French “in-depth consultations on a range of strategic matters”. And there is more to come: I was told Biden may visit Macron in Paris later this month before travelling on to Rome for the G20 summit. But no one in Washington should think that a pat on the back and a few mea culpas will put this to rest.In the latest Watching China in Europe podcast, Maurice Gourdault-Montagne, who served as France’s ambassador to China, Germany, the United Kingdom, and Japan as well as as deputy foreign minister until 2019, described the AUKUS deal between Washington, London, and Canberra as a “shockwave.” He suggested that Paris would now push back more forcefully against U.S. pressure to refocus NATO on China: “Do we need to gather together all the countries alongside the U.S. to attack China? No.” Another French diplomat rejected any suggestion that Paris and Washington had moved on from the AUKUS episode: “There is a feeling out there that the Macron-Biden statement has ended this. We don’t see it that way.” I was told that the Élysée is rethinking the contours of a big Indo-Pacific event it plans to host in February, as one of the highlights of France´s EU Council presidency. Do not expect Australia or the United Kingdom to receive an invitation. Paris is putting the relationship with Canberra on ice until the next Australian election, expected in the spring of 2022, in the hope that voters boot out Prime Minister Scott Morrison. Neither does it seem inclined to listen to Prime Minister Boris Johnson’s pleas to “donnez-moi un break” or “prenez un grip”. The franglais jibes have only added fuel to a raging French fire.

Rapidly Closing Window

None of this is good for efforts to mount a collective response to China. But it would wrong to put all the blame on the Biden administration and its Anglo allies. What the AUKUS deal shows above all is the sense of urgency in Washington and Canberra when it comes to China. The same sense of urgency is not there in Europe. Even French diplomats conceded to me that the EU’s Indo-Pacific strategy lacked strategic teeth and will need to be made more “political” in the months ahead. “We are caught between our own unwillingness to step up and an American protector who is less interested,” a German defense official told me. As Tom Wright of Brookings noted recently, Europe and the United States face a rapidly closing window of opportunity to get on the same page and create facts on the ground while Biden is in office. How soon will it be before another “America First” president emerges in Washington or political changes in Europe make transatlantic cooperation an even harder sell?  The conditions for such cooperation are much better now than they are likely to be in the years ahead.

Trade, Technology & Connectivity

The TTC meeting in Pittsburgh offered glimmers of hope, with both sides committing to closer cooperation on export controls, investment screening, and standard setting. I was told that officials in Washington have also begun discreet discussions with partners like the Netherlands and Japan in a bid to forge a consensus, outside of the Wassenaar Arrangement, on export controls related to semiconductors. A common approach from like-minded countries on this important issue would send a strong signal. There are also signs that Europe is preparing to move on other China-related policies that have been stuck for years in a bureaucratic morass. It was encouraging to see European Commission President Ursula von der Leyen embrace a revamp of the EU’s connectivity strategy—renamed Global Gateway—in her state of the union speech in mid-September.Still, there are reasons to question whether the European Commission is serious about developing a real geopolitical alternative to China’s Belt and Road Initiative (BRI), as big member states have been urging. At the same time as it is touting Global Gateway, I learned, EU institutions are also poised to double down on connectivity cooperation with China, with the launch of a major $2 million study (with funding split between Brussels and Beijing) of rail transport corridors between Europe and China. The study, to be carried out by the European Bank for Reconstruction and Development and the Asian Infrastructure Investment Bank, has raised eyebrows among some EU diplomats because it includes the possibility of rail corridors through countries like Iraq, Syria, India, Pakistan, Iran, and Afghanistan. Some see this as a use of EU taxpayer money to further Beijing’s BRI ambitions in its zones of interest. The European Commission will have to explain how this project fits with Global Gateway, an initiative that Von der Leyen has made clear is aimed at countering Beijing’s influence.  
 
German Election
 
This edition of Watching China in Europe would not be complete without a quick look at Germany’s recent election results and what they could mean for Berlin’s policy toward China. There are differences of opinion on that front. Some observers believe that German policy would change little under a coalition of the Social Democrats, Greens, and Free Democrats (FDP) – the most likely scenario. Others, including myself, believe the departure of Angela Merkel and the entry into government of the Greens and the FDP, who advocate a tougher line toward Beijing, will change the dynamic in Berlin. This is a view that is shared by many of the diplomats who have worked closely on China policy in Berlin and Brussels in recent years. But the fact that Social Democrat Olaf Scholz, the probable next chancellor, has no real foreign policy profile adds an element of doubt to any and all predictions.One German diplomat who expects a shift to a harder stance in Berlin pointed to the changes that would occur across the government with Merkel’s conservatives out of power.  Not only would she be leaving but also the officials—from her economic adviser Lars-Hendrik Röller to Economy Minister Peter Altmaier—who helped drive her China policy. “Regardless of Scholz, if you have the Greens in charge of the foreign and economy ministries, which is not a stretch, then you will have a very different dynamic in Berlin,” this diplomat said. Another veteran diplomat was more cautious: “Will we have a change of attitude, a change of rhetoric? Yes, I think we will,” this diplomat said. “The question is how much these changes translate into a real shift in policy.” This diplomat predicted that France’s Emmanuel Macron would try to take advantage of Merkel’s absence to create more distance between Europe and the United States. “How does Scholz react if Macron is pulling him in this direction? We don’t know.”The next government will face important decisions in its first months, including on Huawei’s role in Germany’s 5G network and the renewal of the EU’s Xinjiang sanctions in March. Escalating tensions in the Taiwan Strait could force Berlin to position itself more vocally on one of China’s reddest lines. One diplomat who has regular exchanges with Chinese counterparts said this was the biggest concern in Beijing. “It is their worst nightmare. They see the Taiwan debate shifting. They see what the Greens and FDP are saying. If Germany starts speaking more loudly, they have a real problem.” Further departures from the 16+1 grouping with China are also possible early next year, with Estonia, Romania, and the Czech Republic all considering following Lithuania’s recent lead, I was told. If these countries were then to incur the wrath of Beijing, as Lithuania has, then the parties in the next German government would face an early test of their commitment to more European solidarity vis-à-vis Beijing.
 
Noah Barkin is a senior visiting fellow in the Asia Program based in Berlin. He specializes in Europe’s relationship with China and the implications of China’s rise for the transatlantic relationship.

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The Security Implications of Chinese Infrastructure Investment in Europe /blogs/chinese-infrastructure-in-europe/ Tue, 28 Sep 2021 19:48:03 +0000 /?post_type=blogs&p=30516 Summary Even before the Belt and Road Initiative (BRI) provided additional clarity about China’s strategic intent, Europe had experienced major influxes of Chinese finance, used to snap up everything from...

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Summary

Even before the Belt and Road Initiative (BRI) provided additional clarity about China’s strategic intent, Europe had experienced major influxes of Chinese finance, used to snap up everything from fading brands to large-scale infrastructure assets. The EU and many European states have already expedited their plans to strengthen or launch investment-screening processes.

Yet Europe is still in the early stages of determining the right balance of security, openness, and economic resilience when it comes to China’s economic presence. Many investment-screening mechanisms are new or untested. Debates over how far strategic infrastructure should be viewed through a military security prism continue apace in NATO. China’s “dual circulation” plans for its domestic economy, which signal a more radical approach to self-sufficiency for itself and dependency for others, are still in their embryonic phase, as is European thinking about how to adjust policy in light of it.

Through the analysis of three emblematic case studies, this report takes stock of the situation and highlights commonalities in Beijing’s approach to infrastructure investment in Europe.

The first case is Germany and its neighbors. Germany remains the economic locus for much of the wider region, and is the dominant actor for the European economy as a whole, which gives outsized weight to national and sub-national choices in the country about how to deal with Chinese economic actors. While specific industrial sectors continue to deepen their commercial ties, concern from important sections of industry about the systemic impact of Chinese economic and political practices has arguably had the single greatest impact on the changing nature of the European debate on China.

The second case is Italy and the wider Mediterranean region. Southern Europe was the locus of the biggest wave of Chinese investments in sensitive sectors during the eurozone crisis. Many saw Italy’s willingness to sign up to the BRI in 2019 as simply a repeat of the Greek and Portuguese experience earlier. Yet, the picture has proved vastly more complex. Membership of BRI, far from resulting in a deepening of Sino-Italian relations saw a diplomatic backlash produced by the BRI memorandum of understanding and the end of the populist coalition government, formed by the Five Star Movement and the League, that signed it.

The third chapter moves to the Nordic countries. The crux of the recent story there too is the change in approach from some of Europe’s most open and technologically advanced states, which have shifted from seeing China through the prism of globalization’s benefits to revisiting the permeability of their systems in light of the risks that it poses.

The coming phase of Chinese infrastructure investment in Europe will not resemble the previous ones. Beijing is well aware of the changed political climate in many countries, of the heightened sensitivities around these investments, of the greater attention from the United States, and of the new scrutiny mechanisms that are in place. Nonetheless, European analysis and responses to China has often been characterized by a “rearview mirror” approach.

In drawing lessons from the case studies, the main question to address is how to ensure that the substance of the security concerns relating to Chinese investment is addressed rather than just the specific forms it has taken in the past.

This includes:

  • building appropriate expertise to ensure that governments are better attuned to China’s changing goals and methods;
  • addressing the more complex set of dependencies that China is now looking to establish with Europe through the “dual circulation” agenda;
  • better integrating investment screening with the trade and industrial policy agenda, including with close attention to the European and allied military industrial base, with digital infrastructure as a central priority;
  • adjusting legal frameworks rapidly, and retaining sufficiently expansive discretionary powers to be able to deter actions that work against the spirit of the screening legislation or move retroactively when this fails;
  • robust transparency requirements relating to ownership, control, finances, audits, and personnel;
  • a more active role for NATO and defense ministries in identifying risks and raising red flags that are hared with other alliance members;
  • pushing ahead with a more serious infrastructure finance offer from Europe and its partners to third countries, lining up connectivity finance and streamlining the fragmented, slow-moving processes that add up to less than the sum of their parts; and,
  • ensuring that European states have sufficient capacity to influence the overall shape of the emerging framework of essential coordination among like-minded partners, rather than being primarily reactive to developments in U.S. and Chinese policy.
Dario Cristiani is the IAI/GMF senior fellow at the German Marshall Fund of the United States, based in Washington, D.C., working on Italian foreign policy, the Mediterranean, and global politics. 
 
Mareike Ohlberg is a senior fellow in the Asia Program and leads the Stockholm China Forum. She is based at GMF’s Berlin Office. Before joining GMF, Mareike worked as an analyst at the Mercator Institute for China Studies, where she focused on China’s media and digital policies as well as the Chinese Communist Party’s influence campaigns in Europe.
 
Jonas Parello-Plesner is a non-resident senior fellow in GMF’s Asia program. His research focuses on Asia and China and relations with EU and the United States. Parello-Plesner has also worked at the European Council on Foreign Relations (ECFR) as a Senior Policy Fellow with a focus on European-Chinese relations.
 
Andrew Small is a senior transatlantic fellow with GMF’s Asia Program, which he established in 2006. His research focuses on U.S.–China relations, Europe–China relations, Chinese policy in South Asia, and broader developments in China’s foreign and economic policy. 
 
To read the full commentary by The German Marshall Fund, please click here.

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Europe’s Global Gateway Plans To Counter China, But Questions Remain /blogs/europes-global-gateway-plans-to-counter-china-but-questions-remain/ Tue, 21 Sep 2021 21:21:01 +0000 /?post_type=blogs&p=31477 During her September 15 State of the Union address, European Commission President Ursula von der Leyen announced a European Union (EU) response to China’s Belt and Road Initiative (BRI), Beijing’s...

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During her September 15 State of the Union address, European Commission President Ursula von der Leyen announced a European Union (EU) response to China’s Belt and Road Initiative (BRI), Beijing’s project of financing and building everything from roads to power plants and digital infrastructure around the world.

The EU’s initiative, dubbed “Global Gateway,” is an overdue and welcome response to BRI, but unless it is coordinated with the G7’s “Build Back Better World” plan and receives dedicated resources, it is unlikely to offer a meaningful alternative.

Von der Leyen made explicit that Global Gateway is a response to BRI, which has in recent years been making inroads to Europe. She argued the EU had to invest more strategically, because “it does not make sense for Europe to build a perfect road between a Chinese-owned copper mine and a Chinese-owned harbor.” Taking a swipe at BRI, she exclaimed, “We want to create links and not dependencies!”

The EU’s unveiling of Global Gateway accompanies growing European disillusionment with China. In May, the European Parliament voted against ratifying the Comprehensive Agreement on Investment with China, citing Beijing’s sanctions on European parliamentarians and scholars and its human rights abuses. This year, France sent a nuclear attack submarine to conduct patrols of the contested South China Sea. Most recently, Lithuania withdrewfrom the “17+1” group with China and agreed to allow Taiwan to open an office in its capital, after which China responded by warning Lithuania of “potential consequences” and both countries recalled their ambassadors.

This growing concern with Chinese actions and recognition that the Indo-Pacific is “increasingly strategically significant for Europe” culminated in the release of the EU’s strategy for the Indo-Pacific, which occurred on the same day that Global Gateway was announced.

In introducing Global Gateway, the EU is recognizing the need to think more critically about the tradeoffs that accompany receiving Chinese infrastructure loans. For instance, while all 27 EU member states have pledged to reduce emissions by at least 55 percent by 2030, China has built and is building coal-fired power plants that do not meet EU environmental standards in EU enlargement countries Bosnia and Herzegovina and Serbia. China’s funding of coal-fired power plants in Europe could complicate EU accession for some countries and make it harder to contend with climate change.

In addition, China is increasing its focus on the Digital Silk Road (DSR), which has worrying security implications. China is promoting Huawei fifth-generation (5G) network technology across the globe, raising concerns within the U.S. government, which has concluded that Huawei is effectively an extension of the Chinese Communist Party. Europe has not taken a unified position on Huawei, with EU members Austria, Hungary, and Ireland all leaving the door open to using Huawei 5G equipment. Global Gateway could reflect a growing recognition within the EU of the need to promote an alternative to Huawei.

Finally, the EU’s announcement emphasized “transparency and good governance,” an implicit contrast with BRI’s opaqueness. Montenegro, a candidate to join the EU, has approached the blocfor debt relief after it realized it could not repay China for the $1 billion highway funded through BRI, serving as a cautionary tale of BRI in Europe. A recent report that studied contracts between Chinese state-owned entities and government borrowers found that Chinese contracts contain confidentiality clauses, provisions that the debt will be kept out of collective restructuring, and language that could allow lenders to influence a country’s foreign policy. Our recent independent Task Force report detailed the allegations of corruption along the Belt and Road and the ways in which China uses economic leverage over countries to attempt to influence their foreign policies. The EU seems to be taking seriously the potential that China will use its economic influence to sow division within the bloc.

While a sound initiative in principle, Global Gateway raises just as many questions as it answers. So far, there is no indication that Global Gateway will have a dedicated budget or staff, making it possible that this will simply be a rebranding of existing and proposed infrastructure investments. In order to offer a meaningful alternative to BRI, Global Gateway will need to both harmonize the efforts of export credit and development agencies within the EU and also get access to additional funds for investments.

It is also unclear to what extent—if any—Global Gateway will work in tandem with the Group of Seven’s (G7) response to BRI, “Build Back Better World” (B3W), which it rolled out in June. The G7 includes EU members France, Germany, and Italy, and it seems unlikely that these three members will want to commit resources to two separate responses to BRI. France, which recalled its ambassador to the United States in the wake of the United States announcing a deal to sell submarines to Australia, could prove unwilling to commit resources to B3W and more inclined to support Global Gateway. It is ironic that less than two weeks after Estonia’s prime minister argued Europe and the United States needed a single, unified response to BRI, the EU announced yet another initiative. Unless B3W and Global Gateway coordinate their approaches, neither will meet its full potential.

The EU’s introduction of Global Gateway reflects its growing unease with China’s more assertive foreign policy and BRI’s inroads into Europe. It is unclear, however, how Global Gateway will compete with BRI, what resources it will have at its disposal, and how it will coordinate with other nascent responses to BRI. To maximize its impact, Global Gateway should focus on digital infrastructure, an area that has the potential to lock European countries into Chinese technological ecosystems and where two EU member states (Finland and Sweden) offer viable alternatives. The United States, for its part, will need to ensure that B3W and Global Gateway do not work at cross-purposes and are instead complementary.

BRI can be seen in part as a marketing success, a way for China to build a narrative that it is an ascendant economic power and a country’s prosperity is intimately tied to closer relations with Beijing. If Global Gateway and B3W falter, it could confirm the other part of the narrative China is trying to establish: the West’s best days are behind it, and the United States and Europe do not have the will to offer an alternative to China. The stakes are high.

Jennifer Hillman and David Sacks are codirectors of the CFR-sponsored Independent Task Force report on a U.S. Response to China’s Belt and Road Initiative, which is co-chaired by Jacob J. Lew and Gary Roughead.

To read the full commentary from the Council on Foreign Relations, please click here.

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EU should consider trade impacts of new climate change mechanism /blogs/eu-impacts-climate-mechanism/ Wed, 14 Jul 2021 19:51:02 +0000 /?post_type=blogs&p=28858 The mechanism could help avoid “carbon leakage”, but its impact on climate change would be limited – only a 0.1% drop in global CO2 emissions – with higher trade costs...

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The mechanism could help avoid “carbon leakage”, but its impact on climate change would be limited – only a 0.1% drop in global CO2 emissions – with higher trade costs for developing countries.

The European Union (EU) carbon border adjustment mechanism (CBAM) announced on 14 July could change trade patterns in favour of countries where production is relatively carbon efficient but do little to mitigate climate change, UNCTAD has warned.

An UNCTAD report published on 14 July shows the CBAM’s potential implications on international trade, carbon dioxide (CO2) emissions, income and employment for countries inside and outside the EU, with a special focus on developing and vulnerable countries.

The CBAM is expected to introduce new CO2 emissions-cutting measures transitionally in 2023 and finalize them before 2026.

“Climate and environmental considerations are at the forefront of policy concerns, and trade cannot be the exception. CBAM is one of these options, but its impact on developing countries also needs to be considered,” UNCTAD Acting Secretary-General Isabelle Durant said.

The report confirms that introducing the CBAM would reduce part of the carbon leakage produced by the different climate change ambitions between the EU and other countries.  

Carbon leakage refers to the relocation of production to other countries with laxer emissions constraints for costs reasons related to climate policies, which could lead to an increase in their total emissions.

Developing countries also pay a price

The report says several of the EU’s trading partners exporting goods in carbon-intensive sectors – including cement, steel, aluminium, oil refinery, paper, glass, chemical and fertilizers – have raised concerns that the CBAM would substantially curtail their exports, but these changes may not be as drastic as some fear.

Exports by developing countries across the targeted carbon-intensive sectors would be reduced by 1.4% if the CBAM is implemented with a price of $44 per tonne of embedded CO2 emissions, and by 2.4% if it’s implemented with an $88 per tonne price, the report shows.

However, the effects would vary significantly by country depending on their export structure and carbon production intensity.


Exports to the European Union 2019 in selected sectors to be considered in the CBAM.
20 most-exposed countries in terms of aggregated value of exports (billion $)

Carbon emissions

Source: UNCTAD based on UN COMTRADE.
Note: The list does not include Iceland, Norway and Switzerland because they participate in, or are linked to, the ETS. Therefore, it is likely that these countries are exempt from the mechanism.


In both scenarios, developed countries, as a group, wouldn’t suffer export declines since many tend to employ production methods that are less carbon intensive in the targeted sectors than many developing nations. 

“The CBAM would generate a similar gap between developing and developed countries in terms of welfare. In both cases, developed countries would fare better than developing ones,” the report states.

With a CBAM based on a carbon price of $44 per tonne, the income of developed countries would rise by $2.5 billion, while that of developing nations would fall by $5.9 billion, according UNCTAD’s analysis. 

However, developed countries would experience a higher welfare loss of $51 billion from the initial introduction of a carbon price of $44 per tonne, driven by losses in the EU, while developing countries would gain $1 billion in the absence of the CBAM.

Potential employment effects would be small for most economies, the report shows.

Effects on the EU’s economy

Increased carbon prices would significantly reduce carbon emissions in the EU, but the world’s largest trading bloc’s exports would decline, the report says.

A CBAM based on a carbon price of $44 per tonne of CO2 embedded emissions would reduce the carbon leakage resulting from the implementation of climate policies in the EU by more than half, from 13.3% to 5.2%.

But the mechanism wouldn’t fully compensate for the negative effects of the carbon tax on the EU’s economy.

Limited impact on mitigating climate change

Although the CBAM would be effective in reducing carbon leakage, its value in mitigating climate change is limited, the report says, as the mechanism would cut only 0.1% of global CO2 emissions.

While the mechanism seeks to avoid the leakage of production and CO2 emissions to the EU’s trading partners with less stringent emissions targets, it’s so far unclear how it can support decarbonization in developing countries. 

“Reducing these emissions effectively will require more efficient production and transport processes,” the report says.

UNCTAD urges the EU to consider deploying CBAM flanking policies capable of narrowing, and eventually eliminating, the gaps between developed and developing countries.

“The EU could consider using some of the revenue generated by the CBAM to accelerate the diffusion and uptake of cleaner production technologies in developing countries,” Ms. Durant said. “This will be beneficial in terms of greening the economy and fostering a more inclusive trading system.”

To read the full commentary on UNCTAD, please click here.

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When Two Global Agendas Collide: How the EU’s Climate Change Mechanism Could Fall Afoul of International Trade Rules /blogs/eu-climate-change-mechanism/ Wed, 07 Jul 2021 19:24:29 +0000 /?post_type=blogs&p=30139 The European Commission has launched an ambitious roadmap termed the Green Deal that aims to make Europe the first carbon‐​neutral continent by 2050. The deal proposes several pioneer trade restrictions aimed at...

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The European Commission has launched an ambitious roadmap termed the Green Deal that aims to make Europe the first carbon‐​neutral continent by 2050. The deal proposes several pioneer trade restrictions aimed at mitigating climate change. And although this proposed measure may not be implemented for several years, its mere proposition will open a new front for trade confrontations. The proposed measure would attempt to minimise the effects of climate change using an economic approach. As such, its consistency with the rules of world trade could become a matter of global debate.

A few immediate concerns arise. The first is the World Trade Organization (WTO) and how its other members will react. Could the deal prompt other regional blocs to implement similar climate‐​related trade measures, or could it instead provoke a wide wave of global criticism? But perhaps more pertinently, could the proposed new measure shape the future of trade, climate ambitions and governance globally?

The commission has stated that the new measures were crafted in alignment with the European Union’s (EU) WTO obligations. Nevertheless, Brazil, South Africa, India, and China have already expressed their “ grave concern” that they will impose unfair discrimination on European imports of their products. A recent European study concluded that the most affected products would be Colombia’s cement, China’s plastics, North Africa’s fertilizers, and South America’s pulp exports.

Against this backdrop, the European Commission will release the details of its proposed new measure, which will be packaged as the ‘carbon border adjustment mechanism’ (CBAM). The mechanism will be launched officially on 14 July 2021 and will introduce the new measures transitionally in 2023 and finalize them before 2026.

Under CBAM, importers will likely be required to buy emissions certificates to account for the carbon emissions embedded in certain carbon‐​intensive products. They will be required to buy one certificate for every tonne of emissions. One tonne of emissions can retail for as much as €50 ($59). Traders will pay for direct emissions of the CO2 embedded in their products, as well as the indirect emissions that result from the electricity used in production processes.

Certificates will probably be required for items that emit high amounts of electricity, plus iron, steel, aluminium, cement, and fertilizer products. And payments may be collected by a new import authority that will work alongside the existing EU Emissions Trade System ( EU ETS). The cost of the certificates will be linked to carbon prices under the EU ETS system.

American Climate Envoy John Kerry has warned that CBAM should be a “last resort” because it could detract from efforts to get more countries to elevate their climate ambitions before the upcoming United Nations (UN) climate summit ( COP26) in November. The EU’s other major trading partners have not stated their position.

At this early stage, any legal analysis is preliminary and provisional. However, the legal issues raised by CBAM regarding its compliance with the EU’s WTO obligations appear to include the following:

1. CBAM could be inconsistent with the WTO’s rule of non‐​discrimination, which requires that any advantage granted to the imported products of one WTO member must be accorded immediately and unconditionally to like products originating from all other WTO members. In judging some WTO members on the extent and quality of their climate actions, and thus picking and choosing whose products will need emissions certificates, the European Union will be showing a bias towards certain WTO member states.

2. Second, by applying a charge on imported products that could be higher than the EU’s agreed customs duty ceilings and other charges connected with importation, CBAM could be in contravention of the EU’s WTO obligations.

3. Third, CBAM could potentially be inconsistent with the WTO’s ‘ national treatment rule’, which requires that imported products be given “no less favourable” treatment than that given to like domestic products. If European producers continue to receive free emissions allowances, then the EU will be acting inconsistently with the “national treatment” rule. This is because imported products will be denied an equal opportunity to compete competitively with like domestic products within the European market.

A way out?

Assuming the EU commits one or more of these violations, the legal question then becomes: could the violations be excused by one of the general exceptions permitted under WTO rules for health and environmental measures?

Potentially, exceptions are available for measures that are necessary to protect human health, and those relating to the conservation of exhaustible natural resources. The EU is unlikely to be able to prove that CBAM is necessary to protect human health. This is in part because there is at least one reasonably available alternative: a carbon tax. A carbon tax would be less restrictive on trade and would also achieve the EU’s desired level of protection from climate change.

However, the EU should be able to prove that CBAM is a measure relating to the conservation of exhaustible natural resources — in this case, the air we breathe — if it can demonstrate that there is a close and genuine relationship between the means used in the mechanism and the end it seeks.

But there is another legal hurdle that CBAM would have to clear. To prove that CBAM is entitled to the WTO’s general exceptions, the European Commission would have to establish that it will not be “applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail”. And in addition, that it is not “a disguised restriction on international trade.”

WTO obligations

It is important to note that WTO obligations are instituted with respect to the treatment of individually traded products. Thus, to prevent CBAM from being “arbitrary or unjustifiable,” it can be argued that any discrimination must be based on assessments of the actual carbon emissions that result from the production of individual products.

The EU should refrain from simply making a judgment call on the overall emissions cuts that have been made or promised by the countries from which those products may have originated. Emissions certificates must not be required for climate‐​friendly products just because they originated in member states that have taken no meaningful action to reduce emissions.

Lastly, with reference to any “disguised restriction on international trade,” the greatest legal vulnerability for the EU would be the continuation of the free emissions allowances for a select group of domestic producers. To fulfil its WTO obligations, the best course for the EU would be to resist domestic industry pressures and abolish the allowances.

Keeping them as they are, might be a fatal legal mistake. And phasing them out over time — even with the addition of purportedly equivalent price offsets for certificates required of like products — may not be enough to survive legal scrutiny in any WTO dispute settlement. Rather, a process of dialogue involving all key stakeholders may be the best solution once the EU releases the CBAM proposal on 14 July.

James Bacchus is a member of the Herbert A. Stiefel Center for Trade Policy Studies, the Distinguished University Professor of Global Affairs and director of the Center for Global Economic and Environmental Opportunity at the University of Central Florida. He was a founding judge and was twice the chairman—the chief judge—of the highest court of world trade, the Appellate Body of the World Trade Organization in Geneva, Switzerland.

To read the full commentary from the CATO Institute, please click here.

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Collective Action can Spark Innovation for Data Flows /blogs/collective-action-data-flows/ Mon, 28 Jun 2021 18:58:31 +0000 /?post_type=blogs&p=28542 ‘Data free flow with trust’ (DFFT) – which seeks to enable cross-border free flow of data while addressing concerns over privacy, data protection, intellectual property rights, and security – has been...

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‘Data free flow with trust’ (DFFT) – which seeks to enable cross-border free flow of data while addressing concerns over privacy, data protection, intellectual property rights, and security – has been a priority of global digital policy coordination since the G20 first raised it during Japan’s 2019 presidency.

Although positively received by a wide range of countries which recognize the potential economic and social benefits of enabling a greater cross-border flow of data, it is not easy to introduce common legal frameworks to ensure DFFT. Countries often have varied domestic and regional legal frameworks due to different concepts of privacy or data security.

The G7 did put digital policy at the centre of its 2021 agenda, discussing broad digital and technology shifts from physical infrastructure such as 5G, future communication technologies, and technical standards to soft infrastructure, such as rule-making on data flow and internet safety principles. And one notable outcome was the establishment of the G7 Roadmap for Cooperation on Data Free Flow with Trust at the G7 Digital and Technology Ministers’ meeting in April 2021 – also endorsed by two of the G7’s guest countries South Korea and Australia.

But despite shared democratic values of open and competitive markets, strong safeguards for human rights, and fundamental freedoms, the G7 and its partners have different ideas on how best to approach DFFT, and so greater UK-EU-Japan policy coordination to overcome any inconsistencies in approach can play a key role.

UK using soft power

Brexit gave the UK an opportunity to refresh its approach to DFFT, having previously adhered to the European Union (EU) general data protection regulation (GDPR). The UK’s Integrated Review of Security, Defence, Development and Foreign Policy has since set out a number of priority actions, such as promotion of the international flow of data to enable secure, trusted, and interoperable exchange across borders.

The UK is clearly trying to use its ‘soft power’ by establishing regulatory influence – as well as including data flows in trade deals, it is making ‘adequacy decisions’ with priority countries deemed to have suitable and robust safeguards of data. The UK-Japan comprehensive economic partnership agreement (CEPA) – the UK’s first post-Brexit trade deal – includes bans on unjustified restrictions of cross-border electronic information transfers for business purposes, and on unjustified requirements to use or locate computing facilities in the countries in which business is conducted (this is known as ‘data localization’, a barrier to the free cross-border flow of data).

These changes mark a huge step-up from the arrangements made under the earlier EU-Japan trade deal, but it remains to be seen how the UK will adopt DFFT frameworks with broader trade partners in Asia, including via the CPTPP.

The G7 Roadmap – which the UK will lead – aims to deliver tangible outcomes on digital policy while being mindful of harmonization with the efforts of other international forums such as the G20 and Organisation for Economic Co-operation and Development (OECD). But if the UK coordinates this harmonization effectively, expect the global formation of a DFFT area to expand dramatically.

Japan’s contribution to DFFT

Japan is another key leader of DFFT and it maintains a rigorous domestic personal data protection and privacy framework which the EU, with its own privacy protection regime considered the toughest in the world, recognizes as adequate to allow data sharing between the two parties.

Japan has also expanded its area of free data flow through trade agreements, incorporating similar provisions to those of the UK-Japan CEPA in the Japan-US digital trade agreement and the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP).

The Regional Comprehensive Economic Partnership (RCEP) – the world’s largest free trade bloc of which Japan is a member – has also introduced frameworks for the free flow of data and a ban on data localization, but these frameworks are not as rigorous as those Japan has agreed elsewhere. Implementing parties may decide to ban data flow or enable data localization in exceptional circumstances that other parties are not allowed to dispute – this has generated concern over potential deviations from the original aims of the DFFT framework.

More broadly, there is also often ambiguity over what actually constitutes international standards and principles on data protection which can result in the implementation of slightly different legal frameworks between agreements. For Japan, the ability to set common frameworks with some flexibility has contributed to its engagement with a wider range of parties, including China, in the field of free data flow. But the development of truly common international standards on data protection remains imperative and the challenge of how best this can be advanced through discussion in the international arena continues.

Outside of trade deals, Japan participates in APEC Cross-Border Privacy Rules (CBPR), a government-backed data privacy certification which companies can join to demonstrate compliance with internationally-recognized data privacy protections. The CBPR System implements the APEC Privacy Frameworkendorsed by APEC Leaders in 2005 and updated in 2015.

EU’s rigorous GDPR protection

The EU has supported the UK in leading the G7 to a consensus on international rule-making regarding free flow of data. Using its rigorous GDPR, the EU has cautiously examined the legal frameworks of each of its trade partners and, where necessary, required additional reinforcements to ensure their laws reach a similar level.

So far the EU recognizes only 14 countries – including Japan – as providing adequate protections, although it is in the process of finalizing arrangements with South Korea and the UK. Although this approach secures the same level of protection as cross-border data flow, it takes a much longer path to realize the free flow of data.

The EU-US privacy shield adopted in July 2016 provides another path for transferring data between the two economies as it allows the free transfer of data to any companies certified in the US which adhere to the Privacy Shield Principles issued by US Department of Commerce. The advantage is this does not require reform to the entire legal system but is still able to maintain a level of privacy protection acceptable to the EU.

However, in its judgment of 16 July 2020 the European Court of Justice ruled the Privacy Shield invalid, underscoring the EU’s strict approach to personal data protection and the protection of individual rights. This has created barriers to data transfer between the EU and US which carry important consequences not only for trade but also for law enforcement and national security, and the US hopes to consult with the EU about this.

Despite differences in approach between the UK, EU, and Japan, they do share a common view that data can harness economic prosperity in a digital society. Ultimately the goal is to propose a set of packages to enable secure cross-border free flow of data, including considerations of how it can be regulated in practice across trade and other agreements.

It could be worth examining whether an APEC CBPR-type mechanism could be applicable to Europe. Although not an easy task – particularly given restrictions faced by the EU – increased UK-EU-Japan policy coordination could help identify a realistic balance between free data flow and privacy protection. Collectively, they are capable of creating innovative mechanisms to enable the world to realise DFFT much more quickly and securely.

Hiroki Sekine is visiting fellow with the Asia-Pacific Programme at Chatham House. He was director of the policy and strategy office for financial operations at JBIC from July 2016 until June 2019 and, most recently, senior advisor to the corporate planning department at the Japan Bank for International Cooperation (JBIC).

To read the full commentary from Chatham House, please click here.

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