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October 22, 2016

Comments

Trachtman

Hello, Dani. It is difficult for scholars to observe national democratic processes from some Archimedean point and argue that there is a failure of democratic legitimacy. For the U.S., we approve trade agreements through a constitutionally-acceptable process that has been enacted by our democratically-elected legislature. While we might argue about whether fast track allows sufficient democratic input, the democratically-elected legislature has determined that it is acceptable. The making of international agreements is a two-level game that requires some adjustments to permit international cooperation. There can be errors of conservatism. For example, the ability of little Wallonia to hold up the entire EU and Canada’s otherwise approved policy—a type of tyranny of the minority—seems inconsistent, at least at some level, with democratic legitimacy. In addition, as Donald Trump has emphasized, it is possible for future governments to withdraw from trade agreements, so there may be less binding of future governments than you fear. But I would hasten to add that states, like firms, need a way to make binding agreements to constrain—to exchange—policy autonomy. While everyone can make mistakes and enter into welfare-reducing agreements, the overall effect of contract seems to be importantly positive. I am not sure why you believe that the overall effect of international law would be different. Best, Joel

RepubAnon

Entering into an business arrangement with no exit strategy if things aren't working out is a very bad idea. That's what makes these arbitration boards so dangerous - they can arbitrarily decide whether a law is meant to protect people, or as a restraint on trade. Consider what happens if the US decides to, say, ban the import of Internet-capable devices that lack basic security protections. Are they doing it to help prevent DDoS attacks such as the one that shut down major web sites recently - or as a restraint on imports? Should an arbitration board really have the power to make that decision?

kaleberg

When I studied colonialism in high school I wondered why the Chinese were so upset about extraterritoriality when the European powers were running the joint. Then I read my first brokerage arbitration agreement. No wonder they were upset. The colonizers and brokerages get the government to do their dirty work without having to put up with the messiness of balanced interests in government. The Chinese, of course, aren't putting up with it anymore. We are.

Jacky

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