Currency Manipulation and Tobacco — Two Trade Issues in Search of a Solution.

Global Money
    Two recent trade developments concerning currency manipulation and tobacco litigation are very interesting. These global financial and public health issues should be addressed further  in the forthcoming congressional debate next year over the renewal of ‘Fast Track’ authority (Trade Promotion Authority), which is essential to the President concluding his two trade initiatives.
     One, congressional negotiators have agreed upon fast track legislation that will be voted upon in January. The adoption of new fast track legislation (Trade Promotion Authority) would enhance the probability of passage of both the TPP and TTIP.
     The proposed legislation includes  currency manipulation provisions for the first time. The currency provisions attempt to address a legal lacuna. There is no prohibition in the existing global financial architecture that addresses in a binding fashion currency intervention (currency devaluation) and its trade consequences. That’s why trade activists want to bring into the realm of enforceable trade laws this financial activity of many states. (This could perhaps unintentionally catch the U.S. because of its quantitative easing policies of the Federal Reserve.)   
     Two, tobacco companies have expanded their legal actions against restrictive tobacco legislation (concerning the use of trademarks) in foreign countries by denying that the ‘public health exception’ in bilateral investment treaties (BIT) and the TRIPS agreement of the WTO allow for such legislation. These action are in response to the 2005 WHO Convention on Tobacco Control.
     I wonder if the ‘fast track’ negotiators gave any thought to addressing the tobacco issue along with  the currency issue. Maybe they should when the legislation comes up for a vote in January 2014.
     Here are more details for both of these issues:
….. “Our Chance to Slash High Costs of Currency Manipulation.” Financial Times (December 17, 2013).
 ….. New fast track legislation containing ‘currency provisions’ has been approved by congressional negotiators and will probably be brought up for a vote in January. “Congressional Negotiators Reach Deal.” Wall Street Journal (December 13, 2013). 
 ….. Tobacco firms are using bilateral investment treaties and  WTO litigation to attack the validity of national packaging laws as being in violation of international trade law protection of intellectual property rights (trademarks).  They argue that such restrictions should not be upheld  under the ‘public-health exceptions’ in these agreements. This general issue is now playing out in national litigation (since companies are allowed to sue governments directly  under a BIT), the WTO litigation process, and trade negotiations for the TPP and TTIP. “Tobacco Firms Strategy.” New York Times (December 15, 2013). “Big Tobacco Bullies.” New York Times (December 16, 2013).

About Stuart Malawer

Distinguished Service Professor of Law & International Trade at George Mason University (Schar School of Public Policy).
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