Investing and trading are two different methods of attempting to profit in the financial markets. Both investors and traders seek profits through market participation. In general, investors seek more massive returns over an extended period through buying and holding. By contrast, traders take advantage of both rising and falling markets to enter and exit positions over a shorter timeframe, for smaller and more frequent profits.
Although international trade and investment are often thought of as two sides of the same coin, the relationship is complicated and has evolved. Global value chains (GVCs), for example, have sharpened the interdependencies between trade and foreign direct investment (FDI), as the companies combine with investment to organize the supply of inputs, to expand in new markets, to access knowledge, and to provide services to consumers.
As such, restrictions and distortions to cross-border trade and investment have an impact beyond their respective policy areas and can have significant spill-over effects, magnifying costs in the domestic and global economy. However, policymakers do not usually take a comprehensive or coordinated policy approach to establish rules that govern trade and investment. Without more policy coherence between trade and investment, we will not have the expected economic and social gains, leading to undesired effects.
Trade, investment, and partnership:
In their endeavors to support policymakers, researchers analyze the interlinkages between trade and investment to develop new evidence on firm strategies in GVCs and outline policy considerations for comprehensive trade and investment provisions in regional trade agreements. Another element has been to provide further evidence on the prevalence of multinational enterprises (MNEs) in world production at the aggregate level while also looking through firm-level data, specific trade and investment relationships in the production network.
What the researchers have found so far is that trade and investment is not a binary choice for businesses (i.e., firms don’t choose between trading and investing but often do both) and that strategies vary significantly across and within industries. For example, some industries are intensely engaged in FDI activities (e.g., food and banking sectors), while others rely more heavily on trading goods and services (e.g., automobiles or telecommunications equipment); others still deploy both trade and FDI with equal intensity (e.g., apparel and footwear, or internet services). Understanding the relative power of trade and FDI across various sectors can help policymakers prioritize measures and anticipate effects across economic activities.
Alongside trade and investment, strategic partnerships are also significant. These can take the form of non-equity, contract-based cross-border relationships (such as licensing, contract manufacturing, service outsourcing, management contract, research and development agreements, integrated product offerings, joint-venture and strategic alliances). These partnerships are not always well covered by international disciplines on trade and investment. Moreover, the evidence points to several reasons why firms engage in FDI activities in global value chains, from developing capabilities to accessing knowledge, to mitigating risks to diversifying their actions, to name a few. There is also the question of how FDI policy can address this diversity of objectives.
Trade and investment policies work with (and not against) business objectives:
In this environment, policymakers need to take stock of evolving business strategies and improve trade and investment policies’ coherence. Trade agreements increasingly include investment provisions and address a broader spectrum of policy issues that also influence firm strategies, including competition policy, state investment, taxation and subsidies, financial flows, currency exchange rates, intellectual property rights protection, professionals’ movement, and data flows. Such an approach allows for greater policy coherence with trade agreements.
But policy coherence also needs to be strengthened across international agreements, such as regional trade agreements and bilateral investment treaties – and between global rules and domestic regulations. More focused on policy attention to clarify regulations that apply to trade, and FDI flows can help ensure a level-playing field across the different types of cross-border business relationships.
Role of international trade agreements: its advantages and disadvantages:
Trade agreements regulate international trade between two or more nations. A contract may cover all imports and exports, specific categories of goods, or a single category. However, several general trade agreements have shaped trade policy on broad levels.
The most important general trade agreement is called simply enough, the General Agreement on Tariffs and Trade (GAAT). GATT was signed in October 1947 to liberalize trade, access an organization to administer more liberal trade agreements and establish a mechanism for resolving trade disputes. The GATT organization is small and located in Geneva. More than 110 nations have signed the general agreement, initially signed by 24 countries, including the United States. The World Trade Organisation has superseded GATT’s role as an organization to no small degree.
Since GATT was signed, several ‘rounds’ of talks to liberalize trade have occurred. The most significant of these was the Kennedy rounds, which eventually led to a one-third reduction in tariffs. Subsequently, the Uruguay rounds dealt with general barriers to trade and the relatively new intellectual property rights, fishing practices, and environmental concerns.
The past 25 years’ major trend has been creating and growth of free trade zones among nations agreeing to form regional trade blocs. The agreements that make free trade zones all share the same aims: to liberalize trade, promote economic growth, and provide equal access to markets among the member nations.
The most significant free trade zones are the European Union (EU), the North American Free Trade Agreement (NAFTA), the Southern Common Market (SCM), the Andean Community (AC), the Association of Southeast Asian Nations (ASEAN), the Asia Pacific Economic Cooperation Conference (APEC), the Common Market for Eastern and Southern Africa (CMESA), and the Economic Community of West African States (ECWAS).
Also, the World Trade Organisation (WTO), as the successor of GAAT, is a global organization, headquartered in Geneva, for dealing with trade between nations. Established in January 1995 by the Uruguay round negotiations under GATT, the WTO included 144 countries as of January 2002. The WTO administers trade agreements, provides a forum for trade negotiations and resolving trade disputes, monitors trade policies, and provides technical assistance and training for developing countries.
The WTO also mediates disputes between member countries over trade matters. Suppose one country’s government accuses another country’s government of violating world trade rules, a WTO panel rules on the dispute. The panel’s ruling can be appealed to an appellate body. If the WTO finds that a member country’s government has not complied with agreements it signed, the member is obliged to change its policy and bring it into conformity with the rules. If the member finds it politically impossible to change its policy, it can offer compensation to other countries to lower trade barriers on other goods. If it chooses not to do this, other countries can receive authorization from the WTO to impose higher duties (i.e., to ‘retaliate’) on goods coming from the offending member country for its failure to comply.
As a multilateral trade agreement, the GAAT requires its signatories to extend most-favored-nation (MFN) status to other trading partners participating in the WTO. The MFN status means that each WTO member receives the same tariff treatment for its goods in foreign markets as that extended to the ‘most favored’ country competing in the same market, thereby ruling out preferences for, or discrimination against, any member country.
Although the WTO embodies the principle of nondiscrimination in international trade, article 24 of the GAAT permits the formation of free trade areas and ‘customs unions’ among WTO members. A free trade area is a group of countries that eliminate all trade tariffs but maintain a standard external tariff on trade with countries outside the union (thus technically violating MFN).
The customs union exception was designed, in part, to accommodate the formation of the European Economic Community (EC) in 1958. The EC, initially formed by six European countries, is now known as the European Union (EU) and includes twenty-seven European countries. The EU has gone beyond merely reducing barriers to trade among member states and forming a customs union. It has moved toward even more significant economic integration by becoming a common market – an agreement that eliminates impediments to the mobility of production factors, such as capital and labor, between participating countries. As a common market, the EU also coordinates and harmonizes each country’s tax, industrial, and agricultural policies. Many EU members have also formed a single currency area by replacing their domestic currencies with the euro.
The GAAT also permits free-trade areas (FTAs), such as the European Free Trade Area, composed primarily of Scandinavian countries. Members of FTAs eliminate tariffs on trade with each other but retain autonomy in determining their non-members’ tariffs.
One difficulty with the WTO system has been maintaining and extending the liberal world trading system in recent years. Multilateral negotiations over trade liberalization move very slowly, and the requirement for consensus among the WTO’s many members limits how far agreements on trade reform can go. As Mike Moore, director-general of the WTO, put it, the organization is like a car with one accelerator and 140 hand brakes. While multilateral efforts have successfully reduced tariffs on industrial goods, it has had much less success in liberalizing trade in agriculture, textiles, and apparel, and in other areas of international commerce. Recent negotiations, such as the Doha Development Round, have run into problems, and their ultimate success is uncertain.
As a result, many countries have turned away from the multilateral process toward bilateral or regional trade agreements. One such agreement is the North American Free Trade Agreement (NAFTA), which went into effect in January 1994. Under NAFTA’s terms, the United States, Canada, and Mexico agreed to phase out all tariffs on merchandise trade and reduce trade restrictions in services and foreign investment over a decade. The United States also has bilateral agreements with Israel, Jordan, Singapore, and Australia and is negotiating bilateral or regional trade agreements with Latin America, Asia, and the Pacific. The European Union also has free trade agreements with other countries around the world.
The advantage of such bilateral or regional arrangements is that they promote more significant trade among the parties to the agreement. They may also hasten global trade liberalization if multilateral negotiations run into difficulties. Recalcitrant countries excluded from bilateral agreements, and hence not sharing in the increased trade these bring, may then be induced to join and reduce their barriers to trade. Proponents of these agreements have called this process ‘competitive liberalization’ wherein countries are challenged to reduce trade barriers to keep up with other countries. For example, shortly after NAFTA was implemented, the EU sought and eventually signed a free-trade agreement with Mexico to ensure that European goods would not be at a competitive disadvantage in the Mexican market due to NAFTA. But these advantages must be offset against disadvantage: by excluding certain countries, these agreements may shift the composition of the trade from low-cost countries that are not a party to the agreement to high-cost countries that are.
Critics of bilateral and regional approaches to trade liberalization have any additional arguments. They suggest that these approaches may undermine and supplement, instead of supporting and complementing the multilateral WTO approach, which is to be preferred for operating globally on a nondiscriminatory basis. Hence the long-term result of bilateralism could be a deterioration of the world trading system into competing, discriminatory regional trading blocs, resulting in added complexity that complicates the smooth flow of goods between countries. Furthermore, the reform of such issues as agricultural export subsidies cannot be dealt with effectively at the bilateral or regional level.
Despite possible tensions between the two approaches, it appears that both multilateral and bilateral/ regional trade agreements will remain features of the world economy. However, both WTO and agreements such as NAFTA have become controversial among groups such as antiglobalization protesters, who argue that such agreements serve multilateral corporations’ interests and not workers, even though freer trade has been a time-proven method of improving economic performance and raising overall incomes. There has been pressure to include labor and environmental standards in these trade agreements to accommodate this opposition. Labor standards include minimum wages and working conditions, while environmental standards prevent trade if ecological damage was feared.
One motivation for such standards is the fear that unrestricted trade will lead to a ‘race to the bottom’ in labor and environmental standards as multinationals search the globe for low wages and lax environmental regulations to cut costs. Yet there is no empirical evidence of any such race. Indeed, the trade usually involves the transfer of technology to developing countries, which allows wage rates to rise, as Korea’s economy – among many others – has demonstrated since the 1960s. Besides, rising incomes allow cleaner production technologies to become affordable. The replacement of pollution bleaching domestically produced scooters in India with imported scooters from Japan, for example, would improve air quality in India.
Environmentalists in rich countries have most actively sought labor and environmental standards. The danger is that enforcing such standards may simply become an excuse for rich country protectionism, which would harm workers in developing countries. Indeed, people in developing countries, whether capitalists or laborers, have been extremely hostile to such standards’ imposition. For example, the 1999 WTO meeting in Seattle collapsed because developing countries objected to the Clinton administration’s attempt to include labor standards in multilateral agreements.
Since international trade agreements are embroiled with controversy, it is expedient to underscore the use of alternative dispute resolutions (ADR) mechanism to expedite the amicable settlement between the parties to carry on investments and trades smoothly under them. There is no such provision in the agreement, the fresh provision (of ADR mechanism) may be enshrined, and where its existence is very indistinct, it may be made clear for the beneficiaries’ greater interest as consumers.
Challenges and opportunities for using ADR mechanisms in international trade:
International trade conflicts are intertwined with political and economic issues. These conflicts involve parties from different parts or jurisdictions of the world, but it is almost impossible to resolve, manage, regulate, prevent, reduces, or avoid them expeditiously through the conventional judicial process. Jurisdictions of domestic courts are limited to matters related to the citizens’ interests and that of the nations. A State court might have no jurisdiction over the issues arising out of international disputes when either party does not come clearly under its authority. So enforcement of the court decision in such cases becomes very difficult. In other cases, when there is a conflict of interests between two nations, both can claim to have primary jurisdiction over the matter if there is no mutual agreement as to the enforceability of the decision given by any particular court of any disputing country. In such a situation, parties look for alternative means to get justice.
International trade growth is bound to give rise to international trade disputes, which transcend national frontiers and geographical boundaries. That is why in the current age of globalization, the importance of ‘Alternative Dispute Resolution Mechanisms (ADR mechanisms) is growing fast. So ADR mechanisms are now called Appropriate Disputes Resolution mechanisms. ADR mechanisms include negotiation, mediation, conciliation, and arbitration.
ADR mechanisms, in the view of the researchers, are not the golden keys to resolve each trade dispute. As there are opportunities in these processes to overcome the hurdles, so are there some challenges simultaneously. We find both challenges and opportunities for using ADR mechanisms in international trade in specific parameters.
Challenges of using ADR mechanisms:
Though there is no better option other than using ADR mechanisms in resolving international trade disputes, it becomes challenging in various contexts, for example, cultural difference, regulating cost, protecting human rights, determining whether someone can negotiate or arbitrate disputes or maintain the code of ethics, unsuitability of mediation to specific disputes.
- Cultural difference
It is argued that international trade disputes occur for some reason, most of which arise from communication difficulties when parties come from different countries with cultural differences. Due to diverse cultures of origin, they belong to inaccurate perceptions, strong emotions, and misunderstandings. Apart from that, business people fresh in international trade are at an enormous disadvantage if they are unaware of the cultural sensitivities of those with whom they conduct business since cultural mistakes can affect profitability and competitiveness. Culture, including language, is the acquired knowledge that members of a particular community use to explain their surroundings and guide their interactions with others subconsciously. Individuals from the same culture use their shared backgrounds to interpret each other’s expressions and actions. Therefore, it may affect the choice or appointment of dispute resolvers because parties are given autonomy to appoint their arbitrators, conciliators, or representatives and cannot be forced to accept any option involuntarily except under minimal and unique circumstances. Notably, ADR mechanisms are intended to be voluntary processes. But the cultural differences, taking place for economic, political, and/ or legal reasons, are likely to impede ADR processes’ voluntariness.
- Regulating cost
There are no specific guidelines on the remuneration of mediators, arbitrators, or other dispute resolvers in resolving international trade disputes. Usually, this issue is left to the particular institutional policies that may not be favorable to either party. The central selling point of the ADR approaches of dispute resolution is their flexibility, low cost, and lack of complex procedures. These attributes may no longer be tenable in arbitration as it is gradually becoming as expensive as litigation, particularly when the arbitral process is challenged in court. After referring a matter to court, it is back to the same old procedure that is present in civil procedure. This challenge also brings the other factor that is changing arbitration’s face through the court’s interference. Ordinarily, courts are not supposed to inquire into the arena of arbitral proceedings, even where the same are court-mandated. Courts entertain all sorts of applications by parties intending to derail the arbitral proceedings and thus delay justice for all concerned. It means that parties are slowly losing confidence in the arbitral process as it makes no sense to engage in arbitration for years together only for the dispute to end up in courts of law for determination.
- Protecting human rights
The modern concept of human rights is based on various instruments considered as the international Bills of Rights, including the Universal Declaration of Human Rights (UDHR, 1948), International Covenant on Civil and Political Rights (ICCPR, 1966), and its two Optional Protocols; and International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966). Observation of scholars is that while it is now accepted that well-functioning, efficient court systems will incorporate and promote ADR mechanisms. It must be remembered that the human rights, for which it is a tool, are the right to a fair hearing by an independent tribunal and the right to an effective remedy by an appropriate national tribunal. Thus, if the ADR process does not operate consistently with these rights, it has ceased to be a tool and has become an obstacle. Also, it is critical to remember that ADR mechanisms, like all rules of practice and procedure, are intended to further the end of justice and recognize human rights by enabling a fair and equitable hearing. In human-right issues that may emerge in some trade disputes, the use of ADR mechanisms is not well-established and may face legal barriers in different jurisdictions.
- Determining negotiability or arbitrability of disputes
These terms ‘negotiability or arbitrability’ refers to determining the type of disputes that can be resolved through ADR mechanisms and those that are the national courts’ domain. It deals with whether specific classes of disputes are barred from arbitration because of the nature of the subject matter of the dispute. Courts often refer to ‘public policy’ as the basis of the bar. The challenge arises when a matter that negotiable or arbitrable in one jurisdiction fails to test negotiability or arbitrability in a different jurisdiction. Arbitrability may either be subjective or objective. National laws often restrict or limit matters, which can be resolved by arbitration. Subjective arbitrability refers to a situation where States or State Entities may not be allowed to enter into arbitration agreements at all or may require special authorization. Objective arbitrability refers to restrictions based on the subject matter of the dispute. Certain disputes may involve such sensitive public policy or national interest issues that they may be dealt with only by the courts, for instance, criminal law.
- Maintaining a code of ethics
Due to the enhanced training scope, many mediators, arbitrators, and conciliators are coming out frequently. The major problem will be regulating independent ADR practitioners as to whether they maintain the code of ethics and standards.
- The inappropriateness of mediation to certain disputes
In some cases, ADR mechanisms, particularly the mediation process, may not be an appropriate forum to resolve disputes. Firstly, mediation does not have a court-ordered solution, and as such, parties may feel that the answer to the dispute lacks finality. Secondly, there is no legal procedure of ‘discovery in mediation. Some critics argue that parties in a mediation process do not have the option of receiving as much information from the other party as they would receive through litigation. Thirdly, mediation does not work without the parties’ good intentions since the process is by consent.
Again, it does not work where the parties need public resolution, for example, when parties need to set legal or industry precedents. Even the mediation process cannot provide any urgent rights protection. It will not function where a party is bent on causing delay insisting on litigation.
Opportunities for using ADR mechanisms:
By this time, it has been established without a shadow of a doubt that the ADR mechanism is a brilliant and time-befitting concept to overcoming the conflicts, international by nature, going beyond the traditional legal process. There are so many areas where ADR mechanisms work better, and some factors that create opportunities to practice ADR in dealing with international trade disputes, which are illustrated below:
- Overcoming cultural barriers
Some scholars have argued that international trade disputes are best resolved through the use of ADR mechanisms that are compatible with the cultural backgrounds of disputants. More so, in ADR mechanisms, whatever may be the form, a third-party facilitator well specialized in the disputants’ cultures can best help reach the disputants rapidly a fair settlement. However, there is a need for careful consideration of ADR methods and the choice of facilitator to fit the parties’ cultural backgrounds.
- ADR mechanisms focus on the underlying interests of the parties
ADR mechanisms focus on the parties’ underlying interests and need to conflict instead of positions, which is contrary to formal common and statutory law practices. These are capable of ensuring that justice is done to all by addressing society’s concerns through legally recognized, more effective means.
- Extra-territorial relations of citizens
Globalization, interactions, and connections of a nation to nation, people, people, and organization to organization, are developing in many sectors, including trade, investment, and commerce. At the same time, differences and conflicts are rising from those relations. In this situation, ADR mechanisms play vital roles in bringing them back to their extra-territorial links resolving the disputes.
- Limitations of the domestic courts
It has been discussed earlier that domestic courts’ jurisdictions are too limited to deal with conflicts that are international by nature. Where there is no international court to deal with international commercial disputes, recourse to international arbitration in a convenient and neutral forum is generally found more acceptable than the resort to the courts as a way of solving any dispute.
- Promote access to justice
People are not only deprived of the right to have access to courts at the national level. Sometimes it happens in international relations as well. For example, when any issue belongs to two domestic courts of two separate States, the disputants cannot get access to justice due to jurisdictional intricacy. The ADR mechanisms, in such circumstances, facilitate disputing parties with access to justice.
- Development of e-commerce
The development of e-commerce has also increased the opportunities for using ADR mechanisms. Given the difficulties of processing e-commerce disputes in a global e-marketplace, online dispute resolution has become an attractive alternative, particularly in small disputes. When ADR processes, such as mediation and arbitration, occur in the online environment, it is often referred to as the online dispute resolution (ODR) process. In the context of civil disputes, ADR processes, such as negotiation and mediation, have introduced a civilized way to resolve international conflicts. They are designed to overcome the limitations and failures of domestic judicial processes and the lack of a binding international public process.
- Influence of the UN Charter
The UN Charter, by its article 33, has introduced the traditional dispute settlement procedures. Here negotiation is generally acknowledged as the most significant of these processes. However, the most common international dispute settlement processes are the diplomatic or consensual methods, namely mediation, and good offices, inquiry, and conciliation. Though not mentioned in article 33, the consultation process is a type of negotiation that should be considered a part of the standard package of methods for resolving international disputes. Together with pre-negotiation activities, such as public peace processes, coalition building, dialogue groups, and co-existence practices, these processes offer a panoply of choices for dispute and conflict resolution practitioners. This provision of the UN Charter makes the disputants put trust and confidence in the ADR procedures. The recognition of ADR processes in the Charter as a first option before resorting to the Internal Court of Justice dictates the easy enforceability and the quality of ADR outcomes.
- Limitation of international courts
Internationally well-functioning tribunals like the International Court of Justice (ICJ) and the International Criminal Court (ICC) of the United Nations and the Dispute Settlement Body of World Trade Organization (WTO) have many limitations. The first one is the parties’ identity to institute a case or defend before these tribunals. It is only sovereign States and some international organizations that can be parties before the ICJ. In the same way, the WTO tribunal accepts claims only from the Member States. In terms of the subject matters, all cases are not entertained by them. Most of the time, ICJ considers disputes relating to issues, for example, frontier and boundaries, territorial sovereignty, the non-use of forces, non-interference in the internal affairs of the States, diplomatic relations, hostage-taking, the rights of asylum, nationality, guardianship, the rights of passage, and economic rights. ICJ also has jurisdiction to adjudicate only the gravest offenses against internationally committed genocide, crimes against humanity, and war crimes.
- On the contrary, the WTO tribunal entertains disputes in implementing any of its documents, like the GAAT. Although these tribunals try to cover most of the possible disputes in terms of subject matters, the international community’s right to take its case before them is not fully guaranteed. Thus, many more parties request before any of these tribunals like individuals, NGOs, and companies. We have some more subject matters of disputes which cannot be entertained in any of these tribunals, like ownership of properties, tort crimes, and the like. ADR mechanisms try to fill these gaps and consider matters that these international tribunals are not well-addressed.
- Overcoming the intractable issues in the mediation process
People may feel that the solution to the disputes in a mediation process lacks finality, but the fact remains that the question is unlikely to arise as both parties, after discussing at length in the presence of a mediator, reached a settlement agreement which is reduced in writing and signed by them. Though the scope of discovery of information is narrow in the mediation process, here the ‘reality testing or risk assessment’ technique is applied, and as such, both the parties are satisfied with the solution. Even the issue of ‘urgent rights’ protection’ can be settled in this process on mutual understanding.
- Impact of UNCITRAL Model Law
Having recognized the value of arbitration as a method of settling disputes in international commercial relations, United Nations Commission on International Trade Law (UNCITRAL) adopted a model law titled, “UNCITRAL Model Law on International Commercial Arbitration, 1985”, which was amended in 2006. Accordingly, the Member States and many Non-Member States of UNCITRAL have enacted their domestic laws on arbitration, keeping provisions of the said Model Law intact. As a result, the scope of resolving international trade disputes has become wider domestically alongside international tribunals.
- Impact of The Singapore Convention on Mediation
The latest contribution of UNCITRAL is “The United Nations Convention on International Settlement Agreements Resulting from Mediation,” which was adopted on December 20, 2018, and opened for signature on 7 August 2019 when 46 States signed it. This Convention was expected to come into force on 12 September 2020, i.e., six months after the third ratification instrument placement. This Convention is recognized as The Singapore Convention on Mediation. It will facilitate international trade and commerce by enabling disputing parties to enforce and invoke settlement agreements across the borders smoothly. The business will benefit from mediation as an additional dispute resolution option to litigation and arbitration in settling cross-border disputes.
- Moving forward to the future:
ADR mechanisms bear specific attributes that can lead to justice and fairness in trade disputes. These attributes include party autonomy, the flexibility of the process, non-complex procedures, low cost, confidentiality, informality, mutually beneficial settlement.
There is a need to employ mechanisms that will help promote and encourage higher uptake of ADR mechanisms in managing disputes at both national and international levels, especially in the management of international trade disputes. While there is a need to put in place adequate legal regimes and infrastructure for the efficient and effective management of international trade disputes, ADR practitioners and institutions should be aware of the aforementioned potential pitfalls as they may affect the different processes’ effectiveness at the national and international levels.
Parties should resolve international trade disputes that should be resolved expeditiously to ensure that the business community and investors can carry on businesses smoothly; however, there are legal and institutional issues relating to ADR practice that must be streamlined to ensure effective management of trade disputes through ADR mechanisms. There are always other indirect factors that must also be taken care of in the light of the UNCITRAL Model Law and The Singapore Convention on Mediation.