Summary of the first of The Intersections Series: 1-Trade and CSR

  • April 19, 2018
  • Bruce Macallum

Mark Carmilleri and Abigail Dubinieki co-presented in the National International Law Section’s first webinar in a series on the general theme of the intersections between trade and other topics. The main theme of the presentation was to show how corporate social responsibility (CSR), which has been traditionally viewed as voluntary corporate compliance with ethical norms such as human rights obligations, can now be viewed as woven into the normative substantive obligations of progressive trade agreements. The shift from voluntary compliance to compulsory compliance with CSR is achieved through the expansion of human rights, privacy rights, labour and environmental obligations which are a component of the new progressive trade agreements. The Comprehensive Economic and Trade Agreement between Canada and the EU constitutes the epitome and new standard of progressive trade agreement upon which Canada’s and presumably other countries’ future international progressive agreements will be modelled.

The expansion in scope of the progressive model of trade agreements is accomplished by the discreet negotiation of chapters in the CETA dealing with sustainable development, labour and the environment, and privacy and data protection provisions in many other chapters within the agreement. The traditional civil society critique of trade agreements as facilitating a “race to the bottom” is reversed, in the opinion of the presenters, by the attention that the progressive model places on integrating non-trade values into the CETA. It is noteworthy that the shift from voluntary compliance to compulsory compliance with non-trade values articulated in the CETA text are subject to binding assessment and review mechanisms relating to the CETA commitments dealing with labour, environment, sustainable development.

The presentation continued to show the practical need to comply with EU law relating to social matters in order for Canadian businesses to take advantage of the benefits of market access into the EU. A considerable portion of the presentation was focused on privacy protection and privacy regulations in the EU. Canadian businesses should be aware of the robust privacy and data protection regulations in the EU and ensure compliance with those regulations as a component of the CSR in doing business there.

The presentation successfully brought home the point that CSR not only is compulsory due to the expanding scope of progressive trade agreements, but because international trade obligations are very much imbued with domestic law compliance legal obligations. The presentation brought together the disparate threads of both domestic and international labour rights, the law of sustainable development and environmental protection and how privacy and data protections are woven into various chapters of the CETA text. Certainly as a result of the integration of non-trade values into progressive trade agreements, lawyers advising companies doing business within the framework of the CETA will need to be mindful of the breadth of social value regulations which will need to form part of the lawyer’s compliance toolkit.

The presenters did emphasize the data privacy regulations in the EU as something Canadian businesses doing business in the EU should be particularly mindful about. The presenters I think were mindful of whether a business is exporting Canadian products, supplying cross-border services to the EU or has a physical presence in the EU that data privacy is an issue which spans all the modes of trans-border commercial activity. Also in drawing our attention to EU and transnational privacy they have broadened the scope of the concept of CSR to include the ethics of compliance with foreign jurisdictions’ privacy laws.

Listen to the recording.

View the slides from the presentation.

The next session in the intersection series will occur on May 8, 2018. It is entitled CETA, NAFTA and TPP: Navigating Trade Agreements in a Shifting Landscape.

Bruce Macallum, Co-Chair of the BC Branch CBA International Law subsection