USCIB Travels to Geneva to Deliver Employers Statement on Human Rights

USCIB Vice President for Corporate Responsibility and Labor Affairs at the International Labor Conference earlier this year

USCIB’s Vice President for Corporate Responsibility and Labor Affairs Gabriella Rigg Herzog is attending this week’s Intergovernmental Working Group on transnational corporations and other business entities with respect to human rights (IGWG) in Geneva. This is the third meeting of the IGWG.

USCIB participated in each of the first two IGWG sessions in 2015 and 2016, which entailed general discussions on issues including the scope and applicability of a proposed binding instrument. On this point, business and key governments stated clearly their view that focusing solely on transnational corporations was not appropriate, and that any future instrument should cover all business entities – in particular national companies. The expectation was set that the third session would entail a discussion of proposed “elements” of what might get included in a binding instrument.

Just three weeks prior to this 3rd meeting, Ecuador released “draft elements” for a binding instrument. In response, Business at OECD, the International Organization of Employers (IOE), the International Chamber of Commerce (ICC) and the Foreign Trade Association have produced a final joint business statement, found here. USCIB, as the U.S. affiliate of IOE, Business at OECD and the ICC, was able to provide substantive input. This statement was shared with the Office of the UN High Commissioner for Human Rights, other business groups abroad, governments and other stakeholders, and it serves as the basis of business’ interventions during the IGWG session this week.

Rigg Herzog will be part of the IOE delegation and will participate in a panel on corporate liability on Wednesday.

USCIB Applauds 20 Years of Anti-Bribery Convention

As the OECD celebrates 20 years of the Anti-bribery convention this year, the U.S. Department of Justice, the Organization for Economic Cooperation and Development (OECD), and the U.S. Securities and Exchange Commission and Business at OECD will host a conference on “No Turning Back: 40 Years of the FCPA and 20 Years of the OECD Anti-Bribery Convention” on November 9th in New York.

USCIB, through its affiliation with Business at OECD, has been working with the OECD Working Group on Bribery, which monitors the implementation and enforcement of the OECD Anti-Bribery Convention. Through annual consultations and USCIB’s advocacy efforts, the Working Group has taken up issues that are of interest to U.S. business in their future work plan.

The conference will draw upon expertise and examine the major impact of ground-breaking instruments and corporate behavior and law enforcement priorities. It will explore the role of cooperation between nations in investigating and persecuting foreign bribery and the effectiveness of different approaches to corporate responsibility for bribery.

The event will be hosted by NYU School of Law’s Program on Corporate Law and Enforcement. U.S. businesses interested in anti-bribery issues may learn more about the conference and register here.

USCIB Urges Withdrawal of Global Tax “Toolkit”

USCIB recently submitted comments to the Platform for Collaboration on Tax concerning a proposed draft “toolkit” on the taxation of offshore indirect transfers of assets. The Platform for Collaboration on Tax is a joint effort launched in April 2016 by the International Monetary Fund (IMF), the Organization for Economic Cooperation and Development (OECD), the United Nations (UN) and the World Bank Group (WBG). USCIB urged The Platform that the taxation of offshore indirect transfers should not be considered in the context of a “toolkit.”

The discussion draft proposes potentially significant shifts in taxing rights for “source” and “residence” countries.

“Decisions on significant shifts in taxing rights ought to be debated among countries at the appropriate multilateral fora and not resolved by guidance provided by the staff of international organizations without debate among the countries,” said Carol Doran Klein, USCIB’s vice president for tax policy.  “As such, the letter recommends withdrawal of the toolkit.”

Doran Klein added: “USCIB is concerned that tax authorities may treat the toolkits as authoritative guidance. Each toolkit should make clear that they are not authoritative and cannot override contrary guidance that is authoritative.”

Hampl Advocates for Open and Fair Investment Policies at OECD

As USCIB continues to advocate for open and fair investment policies in NAFTA and at recent discussions in the United Nations Conference on Trade and Development (UNCTAD) in Geneva, USCIB Director of Investment, Trade, and Financial Services Eva Hampl was in Paris last week, participating in the meetings of the Organization for Economic Cooperation and Development (OECD) Investment Committee. Hampl also held several bilateral meetings with various OECD investment staff and officials from the U.S. Mission to the OECD.

The agenda of the OECD Investment Committee was extensive, including the work of the Freedom of Investment Roundtable, covering issues including societal costs and benefits of international investment agreements, investor-state dispute settlement (ISDS) and related issues, particularly regarding an overview of arbitrators in investment arbitrations and adjudicator compensation systems in dispute settlement. The meetings also discussed the strategic direction for the OECD investment work.

During the stakeholder consultation, Business at OECD made strong statements focused primarily on international investment agreements, specifically ISDS and related issues.

“We maintained our position that investment agreements are very important to business, and are necessary for a robust international investment environment,” said Hampl. “Unfortunately, the OECD has not yet been able to produce reliable data definitively proving the benefits of IIAs,” she added.

Hampl also made an intervention on behalf of U.S. industry, underlining the importance of empirical research in this area, and raising concerns about leaving a vacuum of information in the space related to IIAs.

“In today’s political environment that appears to be progressively more hostile toward foreign investment, advocating for these protections is vital,” said Hampl. “As the OECD continues to develop policy documents on these issues, USCIB will actively participate in shaping these policies.”

Big Turnout on Capitol Hill Raises Alarm on NAFTA Talks

Last week, as the fourth round of talks between the United States, Canada and Mexico on the future of the North American Free Trade Agreement unfolded, USCIB joined many of its members and other associations in flooding Congressional offices on Capitol Hill, raising serious concern over the direction of talks. According to Eva Hampl, USCIB’s director of trade and investment policy, who took part, private-sector representatives spent a full day talking to House Republicans as well as a few Democrats, mainly staff members but also including a few members themselves.

Hampl stated: “The views from House offices varied from understanding the problems presented by statements coming from many U.S. negotiators and administration officials, to having a few specific issues they cared about, to not yet having decided a position on NAFTA modernization. We spent a good amount of time explaining to those who were bogged down in specific issues, or those who did not yet care, that the key elements of the U.S. trading system of the U.S. are at risk.”

Worrisome, and potentially protectionist, proposals coming from the U.S. side in the NAFTA talks address rules of origin, government procurement, investor-state dispute settlement, and a proposed sunset provision that would essentially force NAFTA to be renewed at regular intervals.

“At the same time, a lot of progress is being made in the negotiations in chapters such as customs, digital trade, and in the regulatory space,” Hampl noted. “The U.S. could certainly log a win in this modernization effort if NAFTA 2.0 included those provisions.” But she said there is “great concern” in the business community that NAFTA is being set up to fail with some of the proposals that are being tabled.

USCIB co-sponsored a reception on the sidelines of the NAFTA talks, where Hampl amplified USCIB’s central message of urgency, noting that USCIB members rely on the agreement and its benefits for their operations, which provide jobs for U.S. workers. “NAFTA has done a lot for the U.S. economy and USCIB member companies over the last 23 years, so while this is a great opportunity to bring this agreement into the 21st century, if the existing benefits are lost, that effort will be significantly undermined,” she said.

Another Capitol Hill business lobbying day is planned for October 24. At the conclusion of the fourth round of NAFTA talks, negotiators agreed to defer the next round by at least a month, and to extend negotiations at least through the first quarter of 2018. The next round is slated to begin November 17 in Mexico.

Mulligan Talks NAFTA at CSI Summit

Rob Mulligan at CSI

USCIB Senior Vice President for Policy and Government Affairs Rob Mulligan spoke at a Coalition of Services Industries (CSI) summit earlier this week on USCIB’s North American Free Trade Agreement (NAFTA) priorities.

USCIB members have benefited from NAFTA and believe the current negotiations should ensure that the beneficial parts are preserved, that is ‘do no harm,’ while also taking advantage of the opportunity to improve it in areas that were not addressed two decades ago.

Mulligan noted that NAFTA can be brought into the 21st century by including provisions that ensure cross-border data flows, include strong e-commerce rules, protect against data localization requirements, and level the playing field for firms competing against state-owned enterprises.  More can also be done to improve the customs processes with Canada and Mexico.  Increased transparency in the publication of laws, regulations and procedures would improve customs administration. And bringing de minimis thresholds into relative alignment would facilitate trade, especially for small businesses. All of these steps will help U.S. businesses grow and create jobs.

However, Mulligan raised concerns over several moves by the U.S. during the fourth round of negotiations, “Recent U.S. proposals for a sunset clause, to restrict government procurement, allow an opt out of ISDS, and impose new content requirements for autos will not expand trade and we are concerned that they could force eventual failure of NAFTA that would severely impact the U.S. economy and millions of jobs that are tied to NAFTA.”

Mulligan noted that while USCIB member companies strongly support NAFTA and have greatly benefited from it over the last 23 years, they want the governments to avoid changes to existing parts of NAFTA that would harm trade rather than expand it.

USCIB Huddles with US Mission in Geneva

USCIB’s Shaun Donnelly at meetings in Geneva

On the margins of the UN Conference on Trade and Development  (UNCTAD) meetings in Geneva, USCIB Vice President for Trade Services Shaun Donnelly went to the U.S. Mission (i.e. the multilateral US Embassy) to UN agencies for a morning of meetings on October 12. Donnelly, a retired State Department ambassador, had a wide-ranging, hour-long meeting with the U.S. Mission Chargé D’affaires Ted Allegra in the absence of a new U.S. Ambassador (yet to be nominated.)

Donnelly also had a roundtable with U.S. Mission staff managing U.S. participation on a range of UN agencies including the International Labor Organization, World Health Organization, WIPO, Human Rights Commission and the World Trade Organization. They discussed concerns of USCIB and its members on policies, budgets, and business access in several Geneva agencies.

Donnelly noted afterwards, “I really appreciated the opportunity to sit down with U.S. Chargé in Geneva Ted Allegra, an experienced and respected diplomat, and to highlight priorities and policy concerns of our members.”

Donnelly and other USCIB staff routinely stay in close contact with various staffers in the U.S. mission in Geneva. “But the opportunity to voice our key concerns directly to the acting U.S. Ambassador in Geneva was both timely and useful,” he added.

USCIB Leads Geneva Fight for Strong Investment Agreements

 

As anti-business rhetoric continues to emerge in various intergovernmental forums, USCIB Vice President for Trade and Financial Services Shaun Donnelly led a small but vocal international business delegation at last week’s annual High-level International Investment Agreements (IIAs) Conference at the UN Conference on Trade and development (UNCTAD) in Geneva.

As with many UNCTAD events, this three-day investment conference was dominated by government, UN and international organization experts, NGO activists and academics.  Donnelly was joined by USCIB’s partner BDI, the leading German business association, as the only business voices among over 200 delegates.

Issues on the UNCTAD agenda included reforming investment agreements, alternatives to Investor-State Dispute Settlement (ISDS) to resolve disputes, rebalancing rights and obligations between investors and host governments and alternative strategies to fix IIAs.

UNCTAD gave Donnelly a prominent spot in the opening plenary and keynote slots on two major breakout groups as well as in the closing plenary. In addition to rebuting some anti-IIA and anti-ISDS political diatribes, Donnelly emphasized some basic themes, including that it is private investors who drive growth, jobs and progress. “The IIA protections do matter to investors,” emphasized Donnelly. “Strong ISDS provisions are critical to ensure implementation of investment agreements. Investment agreements which earn rave reviews from governments, academics and UN bureaucrats but which don’t work for business won’t yield investments and all the benefits which flow from private investment flows,” he added.

Communicators Meet in Ireland for 2nd Business at OECD Roundtable

Last week, in Dublin and Cork, Ireland, Business at OECD welcomed more than 20 representatives from member federations and companies to its annual Heads of Communication Roundtable, jointly organized with its Irish member federation IBEC. Jonathan Huneke, USCIB’s vice president for communications and public affairs, represented USCIB alongside several representatives of USCIB member companies.

“This was a valuable series of meetings,” said Huneke. “We discussed the challenges, in the current international environment, of communicating the views and priorities of the globally oriented business community to governments and the public at large. We also explored ways to support our fellow federations’ activities, and to learn from one another, in a communications and policy environment that only seems to get more fast-paced and unpredictable every year.”

High-level speakers at the roundtable included Irish Ambassador to OECD Dermot Nolan, IBEC President Edel Creely and CEO Danny McCoy, and Irish experts who had helped “move the needle” on contentious public debates over economic development and marriage equality.

“The meetings also showcased some of the substantive factors Ireland brings to the table for companies when they make location decisions, Huneke added. “Hence the decision to visit the country’s high-tech hub of Cork.” The communicators held site visits and discussions with Cathy Kearney (CEO, Apple Ireland), Donal O’Sullivan (CEO, Johnson Controls) and Kyran Johnson (General Manager, Janssen, a unit of Johnson & Johnson).

Huneke said he made sure to remind all three companies of their USCIB membership, and offered to support their efforts in whatever way possible.

Thevenin Joins USCIB as General Counsel

Nancy Thevenin

New York, N.Y., October 11, 2017Nancy M. Thevenin has joined the United States Council for International Business (USCIB), which represents America’s leading global companies, as general counsel. USCIB serves as the U.S. affiliate of several global business bodies, including the International Chamber of Commerce (ICC), the world business organization whose International Court of Arbitration is the world’s leading forum for the settlement of cross-border commercial disputes.

Thevenin’s portfolio will include supporting USCIB’s Arbitration Committee and coordinating the work of the U.S. Nominations Committee to the ICC Court. Additionally, she will coordinate amicus requests and responses from USCIB members and other interested parties. Further, Thevenin will work closely with USCIB’s business development team to ensure more comprehensive membership recruitment outreach to both law firms and corporations.

“Nancy Thevenin brings extensive experience to this important position within USCIB,” said USCIB President and CEO Peter M. Robinson. “Our members, including both companies and law firms, have broad experience and knowledge of global arbitration and other legal matters. I am confident that Nancy will be able to fully leverage those relationships to drive further organizational growth and improved services to members.”

Thevenin previously served as deputy director of the ICC Court’s North American marketing office, which at that time also managed USCIB/ICC-USA’s Arbitration Committee. During her tenure, the group helped launch the ICC International Mediation Competition and developed USCIB’s Young Arbitrators Forum (YAF), which Thevenin helped develop and wrote the proposal to turn into a global organization under the ICC umbrella. She later joined Baker & McKenzie as a special counsel and global coordinator of the firm’s International Arbitration Practice Group. Thevenin left Baker in 2014 to start her own practice as arbitrator and mediator. She is the chair of the International Section of the New York State Bar Association and an adjunct professor of the international commercial arbitration course at St. John’s Law School.

A graduate of Tulane Law School where she obtained certificates in European legal practice and in commercial arbitration, Ms. Thevenin also attended the University of Paris at Panthéon-Assas in France, where she studied the French legal system and European Community law. She is a graduate of Cornell University, where she obtained a double major in history and Spanish literature. While at university, Ms. Thevenin lived in Madrid, Spain and studied international relations, Spanish law and Spanish literature. Thevenin is a Fellow of the Chartered Institute of Arbitrators and is licensed to practice law in New York and Florida.

About USCIB:

USCIB promotes open markets, competitiveness and innovation, sustainable development and corporate responsibility, supported by international engagement and regulatory coherence. Its members include U.S.-based global companies and professional services firms from every sector of our economy, with operations in every region of the world. As the U.S. affiliate of the International Chamber of Commerce, the International Organization of Employers and Business at OECD, USCIB provides business views to policy makers and regulatory authorities worldwide, and works to facilitate international trade and investment. More information is available at www.uscib.org.

Contact:
Jonathan Huneke, VP communications, USCIB
+1 212.703.5043 or jhuneke@uscib.org