What type of trade agreement is the public willing to accept? Instead of focusing on individual concerns about market access and trade barriers, we argue that specific treaty design and, in particular, the characteristics of the dispute settlement mechanism, play a critical role in shaping public support for trade agreements. To examine this theoretical expectation, we conduct a conjoint experiment that varies diverse treaty-design elements and estimate preferences over multiple dimensions of the Transatlantic Trade and Investment Partnership (TTIP) based on a nationally representative sample in Germany. We find that compared to other alternatives, private arbitration, known as investor-state dispute settlement (ISDS), generates strong opposition to the trade agreement. As the single most important factor, this effect of dispute settlement characteristic is strikingly large and consistent across individuals’ key attributes, including skill levels, information, and national sentiment, among others.

According to the main element of the legal admissibility test of the European Citizens’ Initiative (‘ECI’) set out in Regulation 211/2011, a proposed ECI cannot collect signatures of support if it ‘manifestly falls outside the framework of the Commission’s powers to submit a proposal for a legal act of the Union for the purpose of implementing the Treaties’. This contribution argues that the interpretation and application of the ECI legal admissibility test has developed since the early years of the ECI’s operation, largely due to the CJEU’s intervention in ECI-cases. It analyses the procedural and substantive changes to the test in light of the relevant litigation and the ongoing reform of the ECI’s legal framework. It illustrates that certain contested procedural aspects of the ECI legal admissibility test have been resolved, while the scope of the ECI has been extended to allow Initiatives in the field of international agreements. The article explores the effects of these developments on current and future ECI practice, including the possibility to bring an ECI in the context of the EU-UK Brexit negotiations.

The EU and the US have long called for the linking of trade and labour standards in trade agreements at both the multilateral and bilateral level. This article examines their practice of including labour provisions in trade agreements, with a particular focus on recent attempts to include such provisions on so-called ‘mega-regionals’, which were presented by their proponents as providing the benchmark for labour protection in future trade agreements. It discusses the rationale behind the inclusion of such provisions and their practical limitations, and examines the extent to which mega-regionals address these limitations. It is argued that whilst the EU and the US have been keen advocates for trade-labour linkages, there has also been an unwillingness to convert this rhetoric into practice, raising questions about the extent of their commitment to these values.

Germany is pivotal to the success of any trade agreement between the European Union and the United States. As the third largest exporter in the world, Germany is dependent on open markets; throughout the post-war period, government support for free trade has been unequivocal. Despite these positive incentives for expanding free trade, both German business and the wider public voiced fierce opposition to the Transatlantic Trade and Investment Partnership (TTIP). TTIP became a flash point for the German public to overcome collective action problems and create a broad protest movement against a free trade agreement for the first time in German history. This movement enabled the public to successfully exercise influence on German foreign economic policy-making, which had long been protected from public pressure. By 2015, the success of that pressure in penetrating the policy-making apparatus combined with growing government concern about the potential of international firms to undermine national policy. As a result of the confluence of these two forces, German leaders changed their position in TTIP negotiations.

This article examines the controversial investor-state dispute settlement (ISDS) mechanisms in recent mega-free trade agreement. Below, I examine the origins of the ISDS concept and outline the controversy surrounding its use in the context of the Transatlantic Trade and Investment Partnership (TTIP). Then, I provide a theoretical discussion that outlines both the exogenous and endogenous factors that contribute to the inclusion of ISDS provisions in international trade agreements. Focusing on the latter endogenous factors, I then argue that not all international trade agreements are the same and that, as such, it is possible to develop a typology of international trade agreement across two variables (the number of parties and relative power) that impact the appropriateness of including an ISDS provision. I test this typology against the empirical record. Finally, I discuss potential innovations to the ISDS provisions and market-based mechanisms that address the dual challenges of discrimination and expropriation that ISDS is designed to address.1

This paper discusses the internal dynamics of American trade policy making in the context of the Transatlantic Trade and Investment Partnership (TTIP) negotiations. The author describes the active role interest groups, the U.S. business community, and representatives on both sides of the political spectrum have played in the passing of Transatlantic Partnership Agreement (TPA), the TPP negotiations, and currently the TTIP debate. Lastly, the author lays out the challenges TTIP will continue to face in light of opposition to specific TPP provisions, trans-atlantic disagreement over ISDS and data flows, and the recent presidential elections.

The Transatlantic Trade and Investment Partnership (TTIP) has the potential to be a landmark treaty on many grounds. According to European and American officials, one of the main features that should differentiate the TTIP from other bilateral free trade agreements is, beyond its unprecedented scale, the ambition of its regulatory dimension. On both sides of the Atlantic there is a strong incentive to mitigate the impacts of “behind-the-border” obstacles that mostly stem from existing divergences between laws and regulations applied in Europe and in the United States. To do this, trade negotiators, together with policymakers and regulators, attempt, when possible and desirable, to facilitate the convergence of the policies that frame the European and the American markets. This paper analyzes how convergence may be reached with regards to the regulation of the digital economy, a relatively new area of interest in the field of trade law and policy studies, that seems to deserve a specific attention considering the growing importance it has taken at the domestic level and in the context of trade negotiations.

This special issue focuses on the difficulties of negotiating the Transatlantic Trade and Investment Partnership (TTIP), with contributions by scholars from different perspectives. This introductory article briefly examines the trend to mega-FTAs of which TTIP is a leading example. It then reviews the contributions to this special issue, drawing on an analytical approach that reflects extant work on transnational and transgovernmental relations. This approach, we contend, helps to understand the stark mismatch between the desire of some parties to negotiate binding trade rules on behind-the-border regulatory policies in certain key sectors of national economies and the progress made in TTIP talks. We then highlight the significance of some key actors in a case study of failed E.U. attempts to include financial sector reforms and associated regulatory processes in TTIP.

Despite initial intentions to better align transatlantic regulation and associated practices in the negotiation of the Transatlantic Trade and Investment Partnership (TTIP), this was not possible for rules concerning genetically modified organisms and data privacy. By 2016 both matters effectively fell off the TTIP negotiating agenda. This paper identifies the factors responsible, specifically the critical role played by independent regulatory agencies and associated bureaucratic politics, transnational coalitions of private sector organizations, and non-government organizations and contingency. These factors are not exclusive to the two salient regulations considered here, with the implication that the identification of cross-border spillovers is at best a necessary condition for the successful negotiation of binding trade rules on behind-the-border government policies.

In this paper, we place the Trans-Atlantic Trade and Investment Partnership (TTIP) into broader geo-political and economic context given the current Trump Administration's withdrawal from the Trans Pacific Partnership (TPP) and the loss of momentum for TTIP. Both TPP and TTIP sought to provide key tactical solutions to the particular trade/investment problems participating states faced. For the U.S. government, these free trade agreements also represented a geo-political undertaking, an attempt to once again set trade rules in light of deadlock in the WTO. Ultimately, the inability of the Obama Administration to successfully complete negotiations for and ratification of these two deals does not alter the underlying motivations that led to them in the first place. The stagnation of these deals, however, has intensified geo-economic and geo-strategic concerns: opening the door to rival articulations of trade governance and undermining U.S. credibility with its partners.

How can I as an international lawyer, conscious that international law is deeply implicated in today's global injustices and that the course of history will not be changed by any grand legal design, practice law responsibly? Taking as a point of departure my own desire not to seek comfort in the formulation of a critique of law, but to aspire to a responsible practice, I consult two quite different bodies of work: first, critical theory of law and second, recent scholarship on international law that argues a practice guided by ethics may enhance the legitimacy of international law. I turn then to my own practice of international economic law focusing on my occasional role as legal expert on the so-called megaregionals the EU aims to conclude with Canada and the United States. I propose that the debate on international economic law lacks an investigation into the role of law in shaping political economy; that this lack can be explained by the compartmentalization of expertise which leads to justification gaps with respect to projects such as the megaregionals. One way lawyers can assume responsibility is to work on closing these gaps even if it means leaving the ‘inside’ of the legal discipline. Finally, I suggest that a responsible legal practice of social change might follow Roberto Unger's call for institutional imagination. Maybe I can satisfy my wish for a transformative practice by joining forces with friends in experimenting with institutions, hoping to build an alternative political economy.

This article analyses the roles of the European Parliament and the US Congress in addressing regulatory interdependencies arising in the EU–US strategic partnership. It examines their international actorness as a potential remedy for the problems of democratic participation, executive dominance, and opaqueness in the shaping of transatlantic relations. It shows that legislatures significantly contribute to regulatory discrepancies and trade disputes and that the adverse consequences thereof justify more intensive ex ante cooperation between them. The analysis conducts two groups of case studies to demonstrate how the EP and Congress influence law and policy in areas of transatlantic regulatory and foreign policy divergence. The first group of case studies analyses parliamentary involvement in the making of international agreements (TTIP and ACTA). The second group of case studies inspects legislative action with extraterritorial effects (US Helms–Burton and Sarbanes–Oxley Acts). The article argues that the EP and Congress have so far frequently acted against the spirit of the strategic partnership in ways that are injurious to the interests of the other side, and discusses whether an interparliamentary early warning mechanism could reduce legislative and political frictions and increase the coherence of transatlantic lawmaking.