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Gender Equality Provisions in Trade and Investment Agreements: Are They Widening the Negotiation Capacity Gap?
Published online by Cambridge University Press: 16 November 2023
Abstract
In the recent years, there has been an upsurge in the number of countries that are mainstreaming gender equality concerns in their trade and investment agreements. These recent developments challenge the long-standing assumption that trade, investment, and gender equality are not related. They also show that gender mainstreaming in trade and investment agreements is here to stay. However, very few countries – mostly developed countries – have led this mainstreaming approach and have made efforts to incentivize other countries to negotiate gender-responsive trade and investment agreements. The majority of developing countries are yet to take their first steps in negotiating such policy instruments with a gender lens, and their hesitation can be grounded in various reasons including fears of protectionism, lack of data, paucity of understanding and expertise, and, more broadly, constraints relating to their negotiation capacity. Moreover, the inclusion of gender-related concerns in the negotiation of such agreements has deepened and widened the negotiation capacity gap between developed and developing countries. In this article, the authors attempt to assess this widening negotiation capacity gap with the help of empirical research, and how this capacity gap can lead to disproportionate and negative repercussions for developing countries more than developed countries.
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- Copyright © The Author(s), 2023. Published by Cambridge University Press on behalf of The World Trade Organization
References
1 ‘Gender refers to the social attributes and opportunities associated with being male and female and the relationships between women and men and girls and boys, as well as the relations between women and those between men. These attributes, opportunities and relationships are socially constructed and are learned through socialization processes.’ (UN Women (n.d.) ‘Concepts and Definitions’, UN Women www.un.org/womenwatch/osagi/conceptsandefinitions.htm (accessed 4 October 2022)).
2 Incorporation of gender in trade agreements can be indicated by inclusion of the terms gender, woman, girl, women, girls, maternity, childcare, sex, mother, etc. It is also important to note that gender should be interpreted broadly to include sex, gender identity, and gender expression, and an understanding of women's experiences should be both ‘intersectional’ and ‘multidimensional’(see K. Kuhlmannm (2022) ‘Legal and Institutional Dimension of the AfCFTA in the Context of Agricultural Development and Trade’, Free Trade Report ‘Cultivatin Trade: The AfCFTA and Agriculture’, 1; Gathii, J.T. (2021) ‘Writing Race and Identity in a Global Context: What CRT and TWAIL Can Learn from Each Other’, UCLA Law Review 67, 1610Google Scholar)).
3 There are more than 300 provisions across 100 FTA's that refer explicitly to women's interests or gender equality. There are over a third of the FTAs that are currently in force and notified by Members to the WTO.
4 Amaral, R. and Jaller, L. Daza (2020) ‘The Role of Regulation and MNEs in Ensuring Equal Opportunities for Women’, Transnational Corporation Journal 27(3), 183Google Scholar, https://unctad.org/system/files/official-document/diaeia2020d3a9_en.pdf (accessed 14 November 2022).
5 Ibid.
6 WTO (2020) ‘Women and Trade the Role of Trade in Promoting Gender Equality’, World Bank and WTO (30 July 2020, www.worldbank.org/en/topic/trade/publication/women-and-trade-the-role-of-trade-in-promoting-womens-equality (accessed 8 May 2022); OECD (2012) ‘Trade and Gender: A Framework of Analysis’, OECD Trade Policy Papers, www.oecd.org/publications/trade-and-gender-6db59d80-en.htm (accessed 8 May 2022).
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9 M. Williams (2003) Gender Mainstreaming in the Multilateral Trading System: A Handbook for Policy-makers and Other Sstakeholders. Commonwealth Secretariat.
10 See for example UNDP (n.d.) ‘UNDP's Gender Equality Seal Certification Programme for Public and Private Enterprises: Latin American Companies Pioneering Gender Equality’, UNDP, www.undp.org/sites/g/files/zskgke326/files/publications/2%20Gender%20Equality%20Seal%20Certification%20for%20Public%20and%20Private%20Enterprises%20-%20LAC%20Pioneers.pdf (accessed 2 August 2023); International Labor Organization, ‘Improving Gender Diversity in Company Boards’, www.ilo.org/wcmsp5/groups/public/---ed_dialogue/---act_emp/documents/briefingnote/wcms_754631.pdf (accessed 2 August 2023).
11 According to an International Labour Organization (ILO) analysis of data from 186 countries over a 26-year period, there is a positive correlation between an increase in female employment and Gross Domestic Product (GDP) growth. Acumen (2015) ‘Women and Social Enterprises: How Gender Integration Can Boost Entrepreneurial Solutions to Poverty’, https://acumen.org/wp-content/uploads/2017/09/Women_And_Social_Enterprises_Report_Acumen_ICRW_2015.pdf (accessed 8 May 2022).
12 Gender equality ‘denotes women having the same opportunities in life as men, including access to resources, opportunities and the ability to participate in the public sphere’. (M. von Hagen (2014) ‘Trade and Gender – Exploring a Reciprocal Relationship: Approaches to Mitigate and Measure Gender-Related Trade Impacts’, Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ) GmbH, www.oecd.org/dac/gender-development/GIZ_Trade%20and%20Gender_Exploring%20a%20reciprocal%20relationship.pdf).12 Gender ‘refers to the social attributes and opportunities associated with being male and female and the relationships between women and men and girls and boys, as well as the relations between women and those between men. These attributes, opportunities and relationships are socially constructed and are learned through socialization processes.’ (UN Women (n.d.) ‘Concepts and Definitions’, UN Women, www.un.org/womenwatch/osagi/conceptsandefinitions.htm).
13 Bahri, A. (2019) ‘Measuring the Gender-Responsiveness of Free Trade Agreements: Using a Self-Evaluation Maturity Framework’, Global Trade & Customs Journal 14(11), 517Google Scholar.
14 These observations are inspired by similar ones made in respect of environmental concerns in trade negotiations in Laurens, N. and Morin, J.-F. (2019) ‘Negotiating Environmental Protection in Trade Agreements: A Regime Shift or a Tactical Linkage?’, International Environmental Agreements: Politics, Law and Economics 19, 533Google Scholar.
15 UNCTAD (n.d.) ‘Gender and Trade: Assessing the Impact of Trade Agreements on Gender Equality’, UNCTAD, ILO, EU and UN Women, 5, https://unctad.org/system/files/official-document/UNWomen_2020d1_en.pdf (accessed 22 October 2022).
16 Bahri, A., López, D., and Remy, J.Y. (eds.) (2023) Trade Policy and Gender Equality. Cambridge University Press, 2–3Google Scholar.
17 Ibid, 154–155.
18 Gender mainstreaming is defined as ‘the (re)organization, improvement, development, and evaluation of policy processes so that a gender equality perspective is incorporated in all policies at all levels at all stages, by the actors normally involved in policy-making’ (Council of Europe (1998) ‘Reflections on the Concept and Practice of the Council of Europe Approach to Gender Mainstreaming and Gender Equality, Maryland USA’); Gender mainstreaming is a means to achieve gender equality. For this paper, gender mainstreaming in trade and investment agreements means the inclusion of gender considerations and concerns in the drafting and implementation of trade and investment agreements.
19 The term ‘developing countries’ is quite heterogeneous in nature, as it ranges from small developing countries which are predominantly based on subsistence agriculture, to large and emerging economies such as China, Brazil, Mexico, and India. These diversely developed countries have very different levels of development, market size, and foreign trade interests. Moreover, they have diverse experience of international trade negotiations. In this context, the findings in this article may not be relevant more generally to all developing countries on an equal scale.
20 A. Bryman (2012) Social Research Methods. Oxford University Press, 202.
21 ITC (n.d.) ‘Women's Economic Empowerment’, ITC, www.intracen.org/itc/women-and-trade (accessed 10 November 2022).
22 WTO (n.d.) ‘Women and Trade’, WTO, www.wto.org/english/tratop_e/womenandtrade_e/womenandtrade_e.htm (accessed 10 November 2022).
23 World Bank (n.d.) ‘Trade and Gender’, World Bank,www.worldbank.org/en/topic/trade/brief/trade-and-gender (accessed 10 November 2022).
24 UNCTAD (n.d.) ‘Gender Equality’, https://unctad.org/en/Pages/DITC/Gender-and-Trade.aspx (accessed 10 November 2022).
25 WTO, supra n. 6.
26 V. Hughes ‘Gender Chapters in Trade Agreements: Nice Rhetoric or Sound Policy?’, CIGI Online, 9 October 2019, www.cigionline.org/articles/gender-chapters-trade-agreements-nice-rhetoric-or-sound-policy/ (accessed 10 November 2022).
27 Ibid.
28 J.-A. Monteiro (2021) ‘The Evolution of Gender-Related Provisions in Regional Trade Agreements’, WTOEconomic Research and Statistics Division, 2, www.wto.org/english/res_e/reser_e/ersd202108_e.pdf
29 Examples of such agreements include: Free Trade Agreement between the Government of Canada and the Government of the Republic of Chile (signed 5 June 2017, entry into force 5 February 2019), part IV bis- N bis; Argentina–Chile Free Trade Agreement (signed 2 November 2017, entry into force 1 May 2019), ch. 15. However, such an increase is mostly limited to agreements signed by countries that have already negotiated a trade and gender chapter in one of their more recent agreements (such as Canada or Chile).
30 Agreement between the United States, Mexico, and Canada (USMCA) (signed 30 November 2018, entry into force 1 July 2020); Canada–Israel Free Trade Agreement (signed 28 May 2018, entry into force 1 September 2019).
31 USMCA, ibid ch. 23; Argentina–Chile FTA, ch. 12.
32 USMCA, ibid, ch. 14; Argentina–Chile FTA, ch. 8, Canda–Chile FTA, Part 3, ch. G.
33 Agreement establishing an association between the European Community and its Member States, of the one part, and the Republic of Chile, of the other part (signed 18 November 2002, entry into force 1 February 2003), part III; Revised Treaty of the Economic Community of Central African States (ECCAS) (entry into force 1984, amendment added in 2019), ch. 18.
34 Agreement establishing an association between the European Union and its Member States, on the one hand and Central America on the other (signed 29 June 2012, entry into force 1 October 2013), part IV, Title VIII; Free Trade Agreement between the European Union and the Socialist Republic of Vietnam (signed 27 June 2012), ch. 13.
35 USMCA, supra n.31, ch. 25; Free Trade Agreement between the United Kingdom of Great Britain and Northern Ireland and Australia (signed 17 December 2021), ch. 18.
36 USMCA, ibid.
37 USMCA, ibid, ch. 23: article 23.12.
38 A. Bahri (n.d.), ‘Mainstreaming Gender Considerations in Free Trade Agreements: “Building Back Better” in Post Covid-19 World’, https://wtochairs.org/sites/default/files/92%20Final-Amrita%20Bahri-Mexico.pdf (accessed 10 November 2022).
39 Chile–Canada FTA, supra n. 30, Appendix II, ch. N bis.
40 USMCA, supra n. 31, ch. 23 and ch. 24.
41 WTO, supra n. 6.
42 Ibid.
43 Ibid.
44 WTO (2017) ‘Joint Declaration on Trade and Women's Economic Empowerment on the Occasion of the WTO Ministerial Conference in Buenos Aires Declaration’, WTO, www.wto.org/english/tratop_e/womenandtrade_e/buenos_aires_declaration_e.htm; www.wto.org/english/thewto_e/minist_e/mc11_e/genderdeclarationmc11_e.pdf (accessed 10 November 2022); also see: n.d., ITC (2020) ‘Delivering on the Buenos Aires Declaration on Trade and Women's Economic Empowerment’, ITC, www.wto.org/english/tratop_e/womenandtrade_e/tig_rpt_dec20_e.pdf (accessed 10 November 2022).
45 Six thematic workshops were held in 2018 and 2019: Financial Inclusion Seminar (11 October 2019); Women in Digital Trade (1 July 2019); Women and Trade in Trade Agreements (28 March 2019); Women in Global Value Chains (1 October 2018); Enhancing Women Entrepreneurs’ Particpation in Public Procurement (25 June 2018); Gender Based Analysis of Trade Policy (16 March 2018), for more info, see Buenos Aires Declaration, supra n. 44, www.wto.org/english/tratop_e/womenandtrade_e/buenos_aires_declaration_e.htm (accessed 10 November 2022).
46 The six WTO members are: the European Union (WT/TPR/G/357), Iceland (WT/TPR/G/361), Gambia (WT/TPR/G/365), Montenegro (WT/TPR/G/369), Philippines (WT/TPR/G/368), and Colombia (WT/TPR/G/372).
47 Women and Trade (2020) ‘Informal Working Group on Trade and Gender’, WTO, www.wto.org/english/tratop_e/womenandtrade_e/iwg_trade_gender_e.htm
48 WTO (2021) ‘Declaration on the Conclusion of Negotiations on Services Domestic Regulation’, WTO, WT/L/1129 (2 December 2021).
49 This discussion is inspired by UNCTAD's Course on trade and gender linkages: the gender impact of technological upgrading in agriculture; WTO, ‘Gender Aware Trade Policy: A Springboard for Women's Economic Empowerment’, 4, www.wto.org/english/news_e/news17_e/dgra_21jun17_e.pdf (accessed 8 May 2022).
50 Bahri, A. (2020) ‘Women at the Frontline of COVID-19’, Journal of International Economic Law 23(3), 563, 565Google Scholar, https://academic.oup.com/jiel/article/23/3/563/5903660 (accessed 4 October 2022).
51 Ibid.
52 K. Kuhlmann and A. Bahri (2023) ‘Gender Mainstreaming in Trade Agreements: “A Potemkin Facade”?’, WTO Publication, forthcoming.
53 UNCTAD (n.d.) ‘Investment Policy Hub’, UNCTAD, https://investmentpolicy.unctad.org/international-investment-agreements/model-agreements (accessed 8 May 2022).
54 Ibid.
55 The Model BITs that mention gender were signed by Morocco (adopted 1 June 2019), Belgium–Luxemburg (adopted 28 March 2019), Netherlands (adopted 22 March 2019), Slovakia (adopted 2019), India (adopted 28 December 2015), and Serbia (adopted 2014) (As on the date of this writing, December 2022).
56 Kingdom of the Netherlands, ‘Model Investment Agreement’ (adopted 22 March 2019), https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/5832/download (accessed 8 May 2022).
57 Government of Canada, ‘2021 Model Foreign Investment Protection Agreement’ (adopted 12 May 2021), www.international.gc.ca/trade-commerce/trade-agreements-accords-commerciaux/agr-acc/fipa-apie/2021_model_fipa-2021_modele_apie.aspx?lang=eng (accessed 8 May 2022).
58 Netherlands model Investment Agreement, supra n. 57, Section 3: article 6, https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/5832/download.
59 Ibid.
60 Government of Canada, ‘2021 FIPA model – Summary of main changes’, www.international.gc.ca/trade-commerce/trade-agreements-accords-commerciaux/agr-acc/fipa-apie/2021_model_fipa_summary-2021_modele_apie_resume.aspx?lang=eng (accessed 8 May 2022). Special attention in that regard should be paid to Article 3 (Right to Regulate), Article 8 (Minimum Standard of Treatment), and Article 16 (Responsible Business Conduct). Canada Model FIPA, supra n. 56, Section B: articles 3, 8 and 16, www.international.gc.ca/trade-commerce/trade-agreements-accords-commerciaux/agr-acc/fipa-apie/2021_model_fipa-2021_modele_apie.aspx?lang=eng (accessed 10 November).
61 UNCTAD (2020) ‘Mainstreaming Gender Equality in Investment Promotion’, UNCTAD, https://unctad.org/system/files/official-document/diaepcbinf2020d7_en.pdf; European Commission, ‘Gender Equality: Commission Ensures Excellence and Improves Gender Balance in Trade and Investment Arbitration’, European Commission, December 2020, https://ec.europa.eu/commission/presscorner/detail/en/ip_20_2485.
62 K. Dawarr (2021) ‘A Guide to Include Gender in Investment Agreements’, bkp Economic Advisors, https://f24ee6fb-4b62-404b-9f2a-699446259e43.filesusr.com/ugd/c947e9_90de7f0187c44ad196566de5e8a0263b.pdf.
63 According to the UNCTAD Investment Policy Hub, currently there are 2,270 BITs in force, https://investmentpolicy.unctad.org/international-investment-agreements
64 Kamala Dawarr, supra n. 63.
65 See for example the Cooperation and Facilitation Investment Agreement Between the Federative Republic of Brazil and the United Arab Emirates (signed 15 March 2019). For more information, see Ana Sarmento, ‘The Scope of New Brazilian Investment Protections: Intellectual Property and the Limits of an Alternate Approach’ (2021) 52(2) University of Miami Inter-American Law Review.
66 Kingdom of Morocco, ‘Model Investment Treaty’ (adopted 1 June 2019), https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/5895/download (accessed 8 May 2022).
67 Agreement between the Kingdom of Morocco and Japan for the Promotion and Protection of Investment (signed 8 January 2020, entry into force 23 April 2022).
68 Hoai, M. and Bui, D.-T. (2018) ‘Gender Inequality and FDI: Empirical Evidence from Developing Asia-Pacific Countries’, Eurasian Economic Review 8(3), 393Google Scholar.
69 Blanton, R.G. and Blanton, S.L. (2015) ‘Is Foreign Direct Investment “Gender Blind”?’, Feminist Economics 21(4), 61Google Scholar; also see: Mitchell, A.D. and Munro, J. (2019) ‘No Retreat: An Emerging Principle of Non- Regression from Environmental Protections in International Investment Law’, Georgetown Journal of International Law 50, 627Google Scholar.
70 R.V. Amaral and L.D. Jaller, supra n. 4.
71 M. von Hagen (2014) ‘Trade and Gender – Exploring a Reciprocal Relationship’, Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ) GmbH; UNCTAD (2014) ‘Looking at Trade Policy Through a “gender lens”’, UNCTAD (UNCTAD/DITC/2014/3), https://unctad.org/topic/gender-equality/trade-policy-through-a-gender-lens (accessed 1 August 2023). However, the African region presents an exception in this respect, as a number of agreements in this region have accommodated several provisions on gender equality, including the most recent African Continental Free Trade Area and its Protocol on Women and Youth which is still under negotiation (see for example Article 3 and 27 of the Agreement). This exception shows that there may not always be a positive correlation between a country's readiness to assume gender equality commitments in its trade policy instruments and its level of development or its rating in international gender equality indexes, such as the UNDP Gender Development Index or the OECD Social Institutions and Gender Index.
72 Research findings from A. Bahri (2021) ‘Gender Mainstreaming in Free Trade Agreements: A Regional Analysis and Good Practice Examples’, Gender, Social Inclusion and Trade Knowledge Product Series, https://wtochairs.org/sites/default/files/7.%20Gender%20mainstreaming%20in%20FTAs_final%20%286%29.pdf
73 A. Bahri, supra n. 51; also see: nd, UNCTAD, ‘Covid-19 threatens four “lost decades” for gender equality’, UNCTAD (1 October 2021), https://unctad.org/news/covid-19-threatens-four-lost-decades-gender-equality (accessed 10 November 2022).
74 Bhagwati, J. (1994) ‘Free Trade: Old and New Challenges’, The Economic Journal 104(423), 231Google Scholar, https://academiccommons.columbia.edu/doi/10.7916/D8Z89KV4/download (accessed 10 November 2022).
75 A. Singh, ‘Explained: India's Refusal to Back WTO Declaration on Gender Equality in Trade,’ QRIUS(15 December 2017), https://qrius.com/explained-india-refusal-gender-equality-trade/; Interview with a trade negotiator (details withheld, on file with author).
76 Interview with a trade negotiator (details withheld, on file with author)
77 R. Bissio, ‘Is “Gender” a Trojan Horse to introduce new issues at WTO?’, Third World Network (December 2017), www.twn.my/title2/wto.info/2017/ti171212.htm (accessed 4 November 2022).
78 Interview with a trade negotiator (details withheld, on file with author).
79 C. Dommen, ‘Mainstreaming Gender in Trade Policy: Practice, Evidence, and Ways Forward’, IISD (November 2021), www.iisd.org/system/files/2021-11/mainstreaming-gender-in-trade-policy.pdf (accessed 11 November 2022).
80 K. Staudt (2003) ‘Gender Mainstreaming: Conceptual Links to Institutional Machineries’, in S.M. Rai (ed.), Mainstreaming Gender, Democratizing the State. Manchester University Press, 40.
81 E. Viilup (2017) ‘EU Trade Policy: Gender-Sensitive or Gender Blind?’, GREAT Insights Magazine 5(6), https://ecdpm.org/work/shifts-in-trade-development-volume-5-issue-6-december-2016-january-2017/eu-trade-policy-gender-sensitive-or-gender-blind (accessed 10 November 2022).
82 W.A. Reinsch, J. Lim, and A. Brodsky, ‘Negotiating Trade Agreements: Gender as a Priority, CSIS(04 May 2021), www.csis.org/analysis/negotiating-trade-agreements-gender-priority (accessed 10 November 2022).
83 A. Bahri and D. Boklan (2022) ‘Not Just Sea Turtles, Let's Protect Women Too: Invoking Public Morality Exception or Negotiating a New Gender Exception in Trade Agreements?’, European Journal International Law 33(1), 237; also see: R. Jenkins (2011) ‘Moral Imperalism’, in D. Chatterjee (ed.), Encylopedia of Global Justice. Springer.
84 Interview with a trade negotiator (details withheld, on file with author).
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86 V. Hughes, supra n. 27.
87 T. McTague et al., ‘Trump Blows Up G7 Agenda’, Politico (30 May 2018). www.politico.eu/article/donald-trump-blows-up-g7-summit-agenda-canada/ (accessed 10 November 2022).
88 S. Prabhu, Indian Minister of Industry and Commerce (Indian Press Conference, WTO Ministerial Conference, Buenos Aires, 11 December 2017), https://commerce.gov.in/press-releases/address-by-the-minister-for-commerce-and-industry-shri-suresh-prabhu-at-plenary-session-of-the-11th-ministerial-conference-of-the-wto-in-buenos-aires-argentina/.
89 K. Higgins (2012) ‘Gender and Free Trade Agreements: Best Practices and Policy Guidance’, The North–South Institute, www.nsi-ins.ca/wp-content/uploads/2012/11/2012-Gender-and-Free-Trade-Agreements-Best-Practice-and-Policy-Guides.pdf (accessed 10 November 2022).
90 WEF (2018) ‘The Global Gender Gap Report’, WEF, https://www3.weforum.org/docs/WEF_GGGR_2018.pdf (accessed 11 November 2022).
91 For example: see UNCTAD (n.d.) ‘Data and Statistics for More Gender-Responsive Trade Policies in Africa, the Caucasus and Central Asia’, https://unctad.org/project/data-and-statistics-more-gender-responsive-trade-policies-africa-caucasus-and-central-asia (accessed 11 November 2022).
92 Interview with a trade negotiator (details withheld, on file with author).
93 Ibid.
94 ITC (2020) ‘Mainstreaming Gender in Free Trade Agreements’, Geneva: ITC, https://intracen.org/media/file/2411 (accessed 10 November 2022).
95 S. Page (2003) ‘Developing Countries: Victims or Particpants’, ODI and Globalisation and Poverty Programme, https://cdn.odi.org/media/documents/2418.pdf
96 Interview with a former negotiator (details withheld).
97 Such as the ‘Comprehensive and Progressive Agreement for Trans-Pacific Partnership (signed 8 March 2018, effective 30 December 2018), Agreement on Cooperation and Facilitation of Investments between the Federative Republic of Brazil and the United Mexican States’ (signed 26 May 2015, entry into force 7 October 2018) and ‘Agreement between the Government of the United Mexican States and the Government of the Argentina Republic for the Promotion and Reciprocal Investment Protection’ (signed 13 November 1996, entry into force 22 June 1998), ‘Partnership, Political Coordination and Cooperation Economic Agreement between the European Community and Its Member States, of the One Part, and the Mexico, of the Other Part’ (signed 27 February 2001, entry into force 1 March 2001) ‘Additional Protocol to the Framework Agreement of the Pacific Alliance’ (signed 10 February 2014, entry into force 1 May 2016), and other bilateral agreements. (Further findings in: A. Bahri and M. Lugo (2020). Trumping Capacity Gap with Negotiation Strategies: The Mexican USMCA Negotiation Experience’, Journal of International Economic Law 23(1), 1.
98 Ibid.
99 Ibid.
100 J.J. Nogues (2002) ‘Unequal Exchange: Developing Countries in the International Trade Negotiations’, 4, Murphy Institute Conference on ‘The Political Economy of Policy Reform’, www.tulane.edu/~dnelson/PEReformConf/Nogues.pdf (accessed 5 March 2019).
101 Bahri, A. (2018) ‘Public Private Partnership for WTO Dispute Settlement: Enabling Developing Countries’, Edward Elgar, 25–26Google Scholar.
102 The resources required may include information, evidence, human resource, number of lawyers or economists or other subject matter experts, and finances.
103 Jinnah, S. and Morin, J.F. (2020) Greening Through Trade: How American Trade Policy Is Linked to Environmental Protection Abroad. Cambridge: MIT PressCrossRefGoogle Scholar.
104 K. Milewicz, J. Hollway, C. Peacock, and D. Snidal (2016) ‘Beyond trade: The Expanding Scope of the Nontrade Agenda in Trade Agreements’, Journal of Conflict Resolution 62(4), 743–773; Hathaway (2003), ‘The Cost of Commitment’, Stanford Law Review 55(5), 1821 (the author has referred to this as ‘sovereignty view’, wherein countries take into account the cost of such a commitment to their national sovereignty).
105 N. Laurens and J.F. Morin (2019) ‘Negotiating Environmental Protection in Trade Agreements: A Regime Shift or a Tactical Linkage?’, International Environmental Agreements 19, 533–556.
106 In this paper, the authors have used the World Bank classification on countries’ income level to divide countries into groups, in a way that high income and upper middle income economies are generally considered as developed or emerging economies. The World Bank, ‘The World by Income and Region’, https://datatopics.worldbank.org/world-development-indicators/the-world-by-income-and-region.html (accessed 4 November 2022).
107 Ibid.
108 J.-A. Monteiro, supra n. 29, also see: Argentina–Chile Free Trade Agreement, (Number of provisions 7 and sub-provisions 26); Chile–Uruguay Acuerdo de Complementación Económica (signed 4 October 2016, entry into force 13 December 2018) (Number of provisions: 8 and sub-provisions: 27); Modernised Canada–Chile Free Trade Agreement (Number of provisions: 6 and sub-provisions: 26)
109 Authors’ own calculations based on analysing 300 entries listed in the WTO Gender and Trade Database; see Database on Gender and Trade (n.d.) WTO, www.wto.org/english/tratop_e/womenandtrade_e/gender_responsive_trade_agreement_db_e.htm
110 This count includes the countries that have signed the AfCFTA with 54 parties, the majority of which belong to the lower middle income and low income countries.
111 The World Bank, supra n. 108; also see: The World Bank, World Development Indicators, https://databank.worldbank.org/source/world-development-indicators (accessed 4 November 2022); UDHR, Human Development Report 2021-2022, https://hdr.undp.org/content/human-development-report-2021-22 (accessed 4 November 2022).
112 World Bank (2015) ‘Women, Business and the Law’, World Bank, https://thedocs.worldbank.org/en/doc/702301554216687135-0050022019/original/WBLDECADEOFREFORM2019WEB0401.pdf (accessed 6 November 2022).
113 UNCTAD Mainstreaming gender in trade policy. Note by the Secretariat. Expert meeting on Mainstreaming Gender in Trade Policy (2009), https://unctad.org/system/files/official-document/ciem2d2_en.pdf (accessed 3 November 2022).
114 Ibid.
115 ACCI (2006) ‘The Evolving Debate on Trade and Labour Standards’, IOE Information Paper, International Organisation of Employers, www.wto.org/english/forums_e/ngo_e/posp63_ioe_e.pdf (accessed 10 November 2022); also see: J.M. Salazar-Xirinachs (2000) ‘The Trade–Labor Nexus: Developing Countries’ Perspectives’, Journal of International Economic Law 3(2), 377.
116 Interviews with three trade negotiators (details withheld, on file with author).
117 Drahos, P. (2003) ‘When the Weak Bargain with the Strong: Negotiations in the World Trade Organization’, International Negotiation 8(1), 79Google Scholar.
118 Agreement on Trade-Related Aspects of Intellectual Property Rights, 15 April 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994) (hereinafter TRIPS Agreement).
119 G.B. Dinwoodie and R.C. Dreyfuss (2012) ‘The Challenges of the TRIPS Agreement’, A Neofederalist Vision of TRIPS: The Resilience of the International Intellectual Property Regime (online edn), Oxford Academic, 24 May 2012, https://academic.oup.com/book/7873/chapter-abstract/153087903?redirectedFrom=fulltext (accessed 31 July 2023).
120 C. Correa (2005) ‘The TRIPS Agreement and Developing Countries’, The World Trade Organization: Legal, Economic and Political Analysis. Springer Boston.
121 Ibid.
122 C.V. Chien (2022) ‘The Inequalities of Innovation’, Emory Law Journal 72, 1 (author explores the relationship between patents, innovation, and the resulting inequality among corporations, countries, and genders)
123 See Article 28 of the TRIPS Agreement: ‘1. A patent shall confer on its owner the following exclusive rights:(a) where the subject matter of a patent is a product, to prevent third parties not having the owner's consent from the acts of: making, using, offering for sale, selling, or importing (6) for these purposes that product;(b) where the subject matter of a patent is a process, to prevent third parties not having the owner's consent from the act of using the process, and from the acts of: using, offering for sale, selling, or importing for these purposes at least the product obtained directly by that process.2. Patent owners shall also have the right to assign, or transfer by succession, the patent and to conclude licensing contracts.’
124 Ibid.
125 Baker, B.K. (2009) ‘Patents, Pricing and Access to Essential Medicines in Developing Countries’, American Medical Association Journal of Ethics 11(7), 527Google Scholar.
126 McMahon, A. (2021) ‘Global Equitable Access to Vaccines, Medicines and Diagnostics for COVID-19: The Role of Patents as Private Governance’, Journal of Medical Ethics 47(3), 142Google Scholar.
127 Council for Trade-Related Aspects of Intellectual Property Rights (2021) ‘Waiver From Certain Provisions of the Trips Agreement for the Prevention, Containment and Treatment of Covid-19’ (May 2021) WTO IP/C/W/669/Rev.1, https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/IP/C/W669R1.pdf&Open=True (accessed 25 November 2022).
128 TRIPS Council (2022) ‘TRIPS Council Welcomes MC12 TRIPS Waiver Decision, Discusses Possible Extension’, WTO, www.wto.org/english/news_e/news22_e/trip_08jul22_e.htm; also see: Q&A with A. So (2021) ‘WTO TRIPS Waiver for COVID-19 Vaccines’, John Hopkins Bloomberg School of Public Health, https://publichealth.jhu.edu/2021/wto-trips-waiver-for-covid-19-vaccines (accessed 25 November 2022).
129 C.M. Correa (2019) ‘Will the Amendment to the TRIPS Agreement Enhance Access to Medicines?’, Policy Brief No.57, South Centre, www.southcentre.int/wp-content/uploads/2019/01/PB57_Will-the-Amendment-to-the-TRIPS-Agreement-Enhance-Access-to-Medicines_EN-1.pdf (accessed 25 November 2022).
130 12th Ministerial Conference, ‘Draft Ministerial Decision on the Trips Agreement (June 2022) WTO WT/MIN(22)/W/15/Rev.2, https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/WT/MIN22/W15R2.pdf&Open=True (accessed 25 November 2022).
131 Mercurio, B. (2004) ‘TRIPS, Patents and Access to Life-Saving Drugs in the Developing World’, Marquette Intellectual Property Law Review 8, 211Google Scholar.
132 TRIPS, supra n. 120, arts 30, and 31, www.wto.org/english/tratop_e/trips_e/ta_docs_e/1_tripsandconventions_e.pdf
133 Bryan Mercurio, supra n. 133.
134 Interview with a trade negotiator (details withheld, on file with author) (however, the interviewee confirms that their country is considering different ways of negotiating and drafting such provisions which can be enforceable either through a specialized procedure or through their agreement's dispute settlement mechanism).
135 Right to regulate provisions are those wherein countries reserve policy space to regulate specific areas. For example, in Article 10.2 of the Chile–South Korea Free Trade Agreement, the parties reserve a right to regulate provision of services or performance of functions in respect of childcare.
136 Minimum legal standards often establish a common ground that harmonize the parties´ domestic legislation. For example, in Article 99 of the EU–Albania Stabilisation and Association Agreement,, parties seek to cooperate on ensuring the adjustment of the Albanian legislation concerning work conditions and equal opportunities for women.
137 Article N bis-06: Non-application of Dispute Resolution, Canada–Chile FTA
138 Definitions originally proposed by the author in A. Bahri (2021) ‘Gender Mainstreaming in Free Trade Agreements: A Regional Analysis and Good Practice Examples’,
Gender, Social Inclusion and Trade Knowledge Product Series.
139 USMCA, supra n. 31, article 23.9
140 Ibid., annex 31-A
141 Stephanie Ferguson, ‘USMCA Rapid Response Mechanism Makes its Debut’, U.S. Chamber of Commerce (8 July 2021), www.uschamber.com/international/trade-agreements/usmca-rapid-response-mechanism-makes-its-debut; Corvaglia, M. (2021) ‘Labour Rights Protection and Its Enforcement under the USMCA: Insights from a Comparative Legal Analysis’, World Trade Review 20(5), 648–667Google Scholar. doi:10.1017/S1474745621000239.
142 Insights from discussions at the ‘Remaking Trade Workshop: Social Dimensions of Sustainibility', Mexico City, 16–17 July 2023, https://remakingtradeproject.org/mexicocity.
143 A. Esposito and D. Lawder, ‘Mexican Businesses Focus on Labor Provisions as they Pore Over USMCA Trade Deal Text’, Reuters (11 December 2019), www.reuters.com/article/us-usa-trade-usmca-idUSKBN1YF0T6.
144 R.P. Alford (2011) ‘The Self-Judging WTO Security Exception’, Utah Law Review 697, 698, https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1336&context=law_faculty_scholarship (accessed on 28 September 2020); Interview with a trade negotiator (details withheld, on file with author).
145 WTO, supra n. 6; also see: OECD, supra n. 6.
146 E. Mengesha (2008) ‘Rethinking the Rules and Principles of the International Trade Regime: Feminist Perspectives’, Agenda: Empowering Women for Gender Equity (78), 13.
147 S. Amin (2010) Eurocentrism: Modernity, Religion, and Democracy. A Critique of Eurocentrism and Culturalism, 2nd edn. Monthly Review Press; also see: Beneria, L. (2010) ‘Globalisation, Gender and the Davos Man’, Feminist Economics 5(3), 61, 75Google Scholar.
148 M.C. Harvey and F. Cristani (2022) ‘Women and Financial Equality: Rewriting the Rules’, in E. Fornalé (ed.), Gender Equality in the Mirror. Brill Nijhoff; R.V. Amaral and L.S. Daza Jaller, supra n. 4; R.E.A. Brambilla (2016) ‘Postfeminism and Neoliberalism. A Critical Discourse Analysis of Gender Mainstreaming’, Gender, Work and Organisation 24(3), 314.
149 Bahri, A. (2021) ‘Making Trade Agreements Work for Women Empowerment’, Latin American Journal of Trade Policy 4(1), 6CrossRefGoogle Scholar. https://lajtp.uchile.cl/index.php/LAJTP/article/view/65667.
150 D. Abney and A.G. Laya (2018) ‘This is Why Women Must Play a Greater Role in the Global Economy’, WEF, www.weforum.org/agenda/2018/01/this-is-why-women-must-play-a-greater-role-in-the-global-economy/ (accessed 4 November 2022).
151 J. Woetzel et al. (2015) ‘How Advancing Women's Equality can Add $12 Trillion to Global Growth’, McKinsey Global Institute (September 2015), www.mckinsey.com/featured-insights/employment-and-growth/how-advancing-womens-equality-can-add-12-trillion-to-global-growth (accessed 4 October 2022).
152 E. Bryan and J. Varat (eds) (2008), ‘Strategies for Promoting Gender Equity in Developing Countries: Lessons, Challenges, and Opportunities’, Woodrow Wilson International Center for Scholars (July 2008), www.wilsoncenter.org/sites/default/files/media/documents/publication/GenderEquity21.pdf.
153 F. Cingano (2014) ‘Trends in Income Inequality and its Impact on Economic Growth’, OECD Social, Employment and Migration Working Papers, No. 163, OECD Publishing, Paris, https://dds.cepal.org/redesoc/publicacion?id=3780.
154 Ibid.
155 Interview with a trade negotiator (details withheld, on file with author) (however, the interviewee confirms that their developed country partners are pushing for the inclusion of binding gender-related commitments in the trade agreements they are negotiating with them).
156 Ibid.
157 A. Bahri, supra n.73.
158 Interview with a trade negotiator (details withheld, on file with author) (where the interviewee from a developed country confirms that they are seriously considering the ways to include binding and enforceable commitments on gender equality in their trade agreements).
159 Interview with a trade negotiator (details withheld, on file with author)
160 Interview with a trade negotiator (details withheld, on file with author)
161 Interview with a trade negotiator (details withheld, on file with author)
162 Informal Working Group on Trade and Gender, supra n. 48; also see Buenos Aires Declaration on Trade and Women's Economic Empowerment, supra n. 45; also see: Action Plan on Trade and Gender 2021–2026 (WTO, 2021), www.wto.org/english/tratop_e/womenandtrade_e/action_plan_21-26.pdf (accessed 5 November 2022).
163 CSIS (2021) ‘The WTO Informal Working Group on Trade and Gender: What It Is, What It Should Consider, and What It Could Be’, CSIS (March 2021), www.csis.org/analysis/wto-informal-working-group-trade-and-gender-what-it-what-it-should-consider-and-what-it (accessed 5 November 2022); also see: Aid for Trade (WTO, n.d), www.wto.org/english/tratop_e/devel_e/a4t_e/aid4trade_e.htm (accessed 5 November 2022).
164 M. Thomas et al. (2019) ‘Women's Economic Empowerment: Strengthening Public and Private Sector Impact through Accountability and Measurement (SDG 5)’, G20 Insights, www.g20-insights.org/wp-content/uploads/2019/05/t20-japan-tf1-11-women-economic-empowerment-1.pdf (accessed 5 November 2022); also see: E. Markel (2014) ‘Measuring Women's Economic Empowerment in Private Sector Development’, OECD (July 2014), www.enterprise-development.org/wp-content/uploads/Measuring_Womens_Economic_Empowerment_Guidance.pdf (accessed 5 November 2022).
165 J. Callista ‘Public–Private Consultation for Free Trade Agreement Negotiations in Canada and Indonesia’, TPSA Research Report ( January 2018), www.tpsaproject.com/wp-content/uploads/2017-11-01-Report-1213.01j.pdf (accessed 9 August 2019).
166 H.-j. Je (2018) Public–Private Relationships in Trade Policy-Making. World Scientific.
167 J. Callista, supra n. 171.
168 Petersmann, E.-U. (2015) ‘Transformative Transatlantic Free Trade Agreements without Rights and Remedies of Citizens?’, Journal of International Economic Law 18(3), 579Google Scholar.
169 Nichols, P.M. ‘Realism, Liberalism, Values, and the World Trade Organization’, University of Pennsylvania Journal of International Economic Law 23(2), 725, 735Google Scholar; also see: Hannah, E., Scott, J., and Wilkinson, R. ‘Reforming WTO–Civil Society Engagement’, World Trade Review 16(3), 427Google Scholar. For more details, see https://academic.oup.com/jiel/article-abstract/23/1/1/5730316