Flexibility and Innovation in International Economic Law: Enhancing Rule of Law, Inclusivity, and Resilience in the Time of COVID-19
Afronomicslaw Symposium on the Vulnerability in the Trade and Investment Regimes in the Time of COVID-19 2020
7 Pages Posted: 20 Sep 2020
Date Written: August 10, 2020
Times of crisis tend to highlight the importance of flexibility and innovation in international economic law (IEL), but this focus has taken on new significance and dimension with the COVID-19 pandemic. Current circumstances warrant an even greater emphasis the intersection between flexibility, regulatory innovation, and economic and social development. This article will briefly examine this dynamic across three interconnected dimensions: (1) flexibility and innovation in IEL agreement models, with a focus on trade agreements, that better integrate economic and social development goals and allow parties to adapt to new circumstances or phase in commitments on a more incremental basis; (2) flexibility in implementation of trade disciplines and agreements; and (3) legal and regulatory innovation that can both define and flow from IEL agreements. These three dimensions take into account both treaties themselves and how they relate to changes in law and regulation in practice, drawing a link between international agreements and their operation that is particularly important in times of change or uncertainty. In assessing dimension three, legal and regulatory innovation, which has been a focus of my work over the past decade, I will touch upon design, implementation, and regulatory options, the latter of which will refer to the regulatory possibilities available to countries in line with both economic and social development considerations and international rules and standards. This dimension relates to “policy space” but can be exercised affirmatively and can highlight important variations in domestic law that may enable states to better address crisis and vulnerability while still preserving cooperation and rule of law. This article is intended to contribute to the broader discussion on flexibility and innovation in trade models and rules that is central to the challenges we face in the global economy today. It is also part of a larger ongoing project focused on linking law and development at the treaty level with a framework for assessing innovation, patterns, and variations in domestic law in an attempt to better understand possible legal and regulatory responses to current challenges and future opportunities.
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