USCIB Statement on Climate COP Outcomes and US Business

New York, N.Y., November 28, 2022—The United States Council for International Business (USCIB) sought an “Implementation Plus” approach in the outcomes of the recently concluded 27th Conference of the Parties (COP27) in Sharm El Sheikh, in which the international community would realize progress in advancing food and energy security alongside climate action and mobilization of resources.

As a dedicated representative of U.S. business in the UN Framework Convention on Climate Change (UNFCCC), USCIB understands and supports the urgency of tackling climate change, and was concerned that economic and geopolitical challenges could hamper or even prevent a successful outcome of this important meeting.

Despite those headwinds, government delegates were able to conclude with progress in key areas, such as loss and damage, the role of agriculture and the need to advance a just energy transition. However, we were disappointed by the absence of any meaningful reference to the actions taken by and the role of business in the Sharm El Sheikh outcomes.

Attending its 27th COP, USCIB noted an unprecedented showing by its members from every sector of the American economy, on hand to offer solutions and support a successful outcome. In addition, USCIB joined the global business community in speaking out for political will and ambitious action at COP27. Throughout the COP, USCIB welcomed the opportunity to cooperate with the International Chamber of Commerce (ICC), the International Organization of Employers (IOE) and the Major Economies Business Forum (BizMEF). We were especially proud to have the Federation of Egyptian Industries (FEI) join BizMEF.

USCIB attended COP27 looking forward to further encouragement and support for pro-active business action, building on pledges made last year by business at the Glasgow meeting.

Throughout COP27, the U.S. private sector demonstrated its actions to mobilize markets and investment in the areas of mitigation, adaptation and support for vulnerable countries and populations that face impacts of climate change. While initiatives, such as the Report of the High-Level Expert Group on the Net Zero Emissions Commitments of Non-State Entities (UN HLEG), will provide additional thoughts on how such efforts can be strengthened, further work is needed to analyze the fuller implications of the 40 recommendations to drive meaningful, practical progress. USCIB is concerned that overly prescriptive approaches to voluntary pledges and allegations of  “greenwashing” could discourage and hamper further voluntary steps on climate action and finance.

Although COP27 left much still to be done to address the risks and impacts of climate change, USCIB looks to COP28 with resolve and renewed purpose. Without businesses of every sector participating in these vital deliberations, the international community will not be able to fully harness the drive, capability and commitment of business to advance the Paris Agreement.

Across the multilateral system, USCIB will continue to champion a confluence of common interests through practical and inclusive multilateralism. USCIB will forcefully and consistently make the case for catalyzing business knowhow, experience and partnership for innovation, as well as investment and job creation as we move ahead together to deliver on the promises of the UNFCCC and its Paris Agreement.

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. USCIB is the U.S. affiliate of the International Chamber of Commerce (ICC), the International Organization of Employers (IOE) and Business at OECD (BIAC). More at www.uscib.org.

USCIB Outlines Priorities for UN Climate Meetings (COP27) in Letter to US Government

USCIB policy experts are now at the 27th Conference of the Parties of the UN Framework Convention on Climate Change (UNFCCC COP27) in Sharm El-Sheikh, Egypt. In advance of COP27, USCIB sent a letter on behalf of USCIB President and CEO Peter Robinson to Special Presidential Envoy for Climate Change John Kerry, setting out USCIB members priorities for COP27. The letter can be downloaded here, or viewed directly below.

Dear Special Presidential Envoy Kerry:

Addressing the multiple challenges of climate change in all their complexity, alongside advancing food and energy security, are interconnected imperatives. The United States Council for International Business (USCIB) welcomes the Administration’s leadership as it has engaged with the international community for ambition and progress on these linked issues en route to the 27th Conference of the Parties of the UN Framework Convention on Climate Change (UNFCCC COP27) in Sharm El-Sheikh next week.

As Administration officials have emphasized, COP27 is a chance to focus on “Implementation Plus”– win-win opportunities to incent investment and create jobs for shared climate -friendly prosperity, not just from governments but across society. Implementation Plus approaches should catalyze innovation and trade to deploy U.S. private sector technology and partnerships on mitigation and adaptation. Implementation Plus oriented COP outcomes should encourage synergies between climate and nature protection agendas and actions. And those outcomes should recognize and mainstream supporting frameworks for voluntary pledges from business and other non-state actors.

In particular, USCIB members look for progress at COP27 in the following areas:

  • Just transition for workers, society, and employers: Further discussions of just transition should reflect the fundamental role of social dialogue, and recognize the impacts and opportunities for workers, societies, and employers. In this regard, representative employers’ federations are essential to sound climate change and just transition policy and its implementation.
  • Integrated Approach to Adaptation and Resilience: Incentives for private sector investment are needed to direct funds not only to infrastructure, but also to other key societal sectors for adaptation and resilience, such as agriculture and food production, supply chain, and access to the internet.
  • Enhanced Substantive Engagement of Business and other Stakeholders: The involvement of business in all its diversity is more important than ever to deliver on Paris, Glasgow, and Sharm El-Sheikh commitments. The Administration has consistently supported the inclusion of all stakeholders in the UNFCCC and this is more crucial than ever at COP27. We urge you to continue to speak out strongly for enhanced and meaningful inclusion of business with all stakeholders, and oppose any measures that would discriminate against or exclude any constituency.

In Glasgow, despite unprecedented business commitments to reduce GHGs and mobilize financial and technical resources, COP26 decisions did not mention the private sector apart from a reference to finance. For USCIB, this sent the wrong signal, and contradicts a record of real achievement and commitment by the private sector to do more.

The Administration has encouraged business from every sector to step up on climate change and join diverse U.S. climate initiatives for ambition, green energy, green purchasing, and more. USCIB member companies have responded positively, and many have additionally launched their own actions to keep 1.5 alive, commit to net-zero and meaningfully contribute across numerous other climate-relevant areas.

We ask therefore for your support to include acknowledgement in COP27 outcomes of the distinct role of business, recommending increased dialogue and partnership with the private sector, and consulting with business and employers to hear views and recommendations on policy options under the UNFCCC.

USCIB members will bring their commitment and solutions to tackle climate change to Sharm El Sheikh, and USCIB looks forward to supporting the U.S. delegation at these meetings. We will be joining forces with our global sister organizations, the International Chamber of Commerce (ICC) and the International Organization of Employers (IOE) to achieve outcomes for broad deployment of lower carbon options across all forms of energy, to strengthen market-based approaches to tackle mitigation and adaptation, and to take international cooperation to a next level of ambition and impact.

Sincerely,
Peter M. Robinson
President & CEO

USCIB Attends WTO Public Forum, Meets with WTO Director General

Stacy Dieve (Cisco), Megan Funkhouser (ITIC), Alice Slayton Clark (USCIB)  with WTO Director General Ngozi Okonjo-Iweala (center) with WTO Deputy Director-General Anabel González

USCIB was in Geneva for the WTO Public Forum last week, advocating with USCIB members and other industry associations for the launch of a new round of tariff eliminations under the Information Technology Agreement (ITA-3) and for permanent extension of moratorium on customs duties on electronic transmissions.

The meetings with WTO officials, including Director General Ngozi Okonjo-Iweala, and WTO missions made progress in laying the ground work for member objectives, but also provided important insights into how USCIB and member companies can navigate the challenges ahead.

USCIB member companies also met with Representative Director of the International Chamber of Commerce (ICC) in Geneva Crispin Conroy to discuss the WTO landscape and USCIB/ICC international trade priorities. USCIB is working closely with ICC on WTO workstreams including with respect to the Joint Statement Initiative on Electronic Commerce, the e-commerce moratorium, the Trade and Environmental Sustainability Structured Discussions (TESSD) and WTO reform.

USCIB and ICC remain strong advocates for a more formal role for business and civil society input at the WTO, especially as the forum becomes one more focused on policy discussion.

USCIB Op-Ed: Supreme Court Limits Discovery in International Commercial Arbitrations

Grant Hanessian

Grant Hanessian, former chair of the USCIB Arbitration Committee, shares an opinion piece following the Supreme Court’s decision to limit discovery in international commercial arbitrations in the Z.F. Automotive U.S. Inc v. Luxshare Inc., a case in which USCIB and the ICC International Court of Arbitration filed an amicus curiae brief.

Hanessian is an independent arbitrator in New York and an Adjunct Professor of Law at Fordham University School of Law.  Prior to July 2020, Hanessian was a partner at Baker McKenzie, where he practiced for 33 years, and served as global co-head of the firm’s International Arbitration Practice.  He is the immediate past chair of the USCIB’s Arbitration Committee and currently coordinates the Committee’s amicus activities.

Supreme Court Limits Discovery in International Commercial Arbitrations

By Grant Hanessian

On June 13, 2022, the U.S. Supreme Court in Z.F. Automotive U.S. Inc. v. Luxshare Inc. held that parties to international commercial arbitrations may obtain discovery in the United States under 28 U.S.C. § 1782 (“Section 1782”).   The case resolved a longstanding split among U.S. Circuit Courts of Appeal with respect to the availability of Section 1782 in international commercial arbitrations, but left open the possibility that the statute may be available to parties to certain investment treaty arbitrations, as discussed below.

As amended in 1964, Section 1782 states that U.S. district courts may order a person to “give testimony … or to produce a document or other thing for use in a proceeding in a foreign or international tribunal”.  U.S. Courts of Appeals for the Fourth and Sixth Circuits held that parties to international arbitrations may invoke Section 1782 to obtain broad U.S.-style discovery in aid of international arbitrations.  U.S. Courts of Appeals for the Second, Fifth, and Seventh Circuits held that Section 1782 was not available in such cases.

The USCIB and ICC Court of Arbitration filed an amicus curiae brief in Z.F. Automotive.  The brief—written by a Freshfields team comprising partners Linda H. Martin, Noah Rubins QC, and Nicholas Lingard and senior associates Kate Apostolova and Eric Brandon—did not take a position on the scope of Section 1782, but asserted that if Section 1782 applies to private commercial arbitrations, U.S. courts should afford a very high degree of deference to whether the arbitral tribunal presiding over a particular arbitration believes the requested discovery is appropriate.

In Z.F. Automotive, the Supreme Court did not reach the subject of the USCIB/ICC amicus brief, but rather held, in a unanimous decision written by Justice Amy Coney Barrett, that arbitral panels in commercial cases are not “foreign or international tribunals” within the meaning of Section 1782, and thus parties to such arbitrations may not seek discovery in U.S. courts under the statute.   The Court held the statute was intended “to reach only bodies exercising governmental authority” and that a “‘foreign tribunal’ is one that exercises governmental authority conferred by a single nation, and an ‘international tribunal’ is one that exercises governmental authority conferred by two or more nations.”

The Court considered the application of Section 1782 in two cases.  The first case involved a commercial arbitration in Germany between a German bank and a Hong Kong company under the rules of the German Arbitration Institute (“DIS”).  Since no government was involved in creating the arbitral tribunal or the DIS Rules, the Court determined that the arbitral tribunal did not exercise governmental authority and therefore discovery in the U.S. under Section 1782 was not available to the parties.

The second case, involved an “ad hoc” arbitration under the UNCITRAL Arbitration Rules brought by a Russian investment fund against the Republic of Lithuania alleging breach of the Russia-Lithuania investment treaty.  The Supreme Court held that Section 1782 did not apply to this ad hoc arbitration because “the treaty [between Russia and Latvia] does not itself create the panel” but “instead it simply references the set of rules that govern the panel’s formation and procedure if the investor chooses that forum.” The Court held that “nothing in the treaty reflects Russia and Lithuania’s intent that an ad hoc panel exercise governmental authority.”

It remains to be seen whether the holding in Z.F. Automotive will apply to all investment treaty arbitrations.  Many investment treaty arbitration are brought under the International Convention for the Settlement of Investment Disputes (“ICSID Convention”), a multilateral treaty with some 154 contracting state parties.  The ICSID Convention creates a permanent institution, the International Centre for the Settlement of Investment Disputes (“ICSID”) under the auspices of the World Bank, and states the powers and functions of ICSID arbitral tribunals and the obligations of member states to enforce ICSID tribunal awards. The ICSID Administrative Council, on which each member state has a representative, meets annually to adopt administrative and financial regulations and approve rules for ICSID-administered cases.   Further litigation will be required to determine whether arbitral tribunals convened under the ICSID Convention are “international tribunals” under Section 1782.

Whatever the fate of Section 1782 in investment treaty arbitration, it is clear that the statute is no longer available to parties in international commercial arbitrations.  With respect to such cases, the appropriate scope of discovery is typically governed by the parties’ arbitration agreement, including the arbitration rules and law selected by the parties.  Many international commercial arbitral tribunals apply the International Bar Association’s Rules on the Taking of Evidence in International Arbitration to determine the appropriate scope of document production (depositions and interrogatories are unusual in international arbitration).   U.S. parties interested in broader discovery than is typically available in international arbitration should consider specifically providing for such discovery in their arbitration agreements.

Olsen Attends UN Environment Programme (UNEP) Meetings in Senegal on Plastic Pollution

Left to right: Raelene Martin (ICC) and Chris Olsen (USCIB)

In an effort to address global plastic pollution, the United Nations Environment Assembly (UNEA) is seeking to develop an internationally legally binding instrument on plastic pollution, including in the marine environment, based on a comprehensive approach that addresses the full life cycle of plastic. To develop such an instrument, UNEP hosted a series of meetings to set the rules of procedure, leadership and schedule, in Dakar, Senegal from May 30 to June 1.

The meeting in Dakar, officially titled the “Ad hoc open‑ended working group (OEWG) to prepare for the intergovernmental negotiating committee (INC) on plastic pollution” allowed the private sector an opportunity to help inform the UN process. USCIB Policy Manager for Regulation and Trade Chris Olsen represented USCIB at this meeting as a part of the Business and Industry Major Group.

According to Olsen, UNEP Executive Director Inger Anderson made opening remarks which outlined issues for countries to consider when negotiating. Calling for the agreement to be broad and cover the full lifecycle of plastic, be informed by science, have close engagement and involvement with stakeholders, spur solutions for a new economy, and learn from previous multi-lateral environmental agreements (MEAs) while being willing to embrace new and bold innovations in the multilateral space.

USCIB also joined meetings, along with International Chamber of Commerce (ICC) Head of Sustainability Raelene Martin, regarding the role ICC can play in the negotiating process. ICC brings not only a global voice of business, but also a combination of large multinationals and SMEs across its global affiliates.

“It was encouraging to hear consistent support for stakeholder engagement throughout the week both in informal side meetings and in the official negotiations themselves,” said Olsen, reporting from the field. “However, much work remains to be done to educate governments and convene business perspectives between now and the first negotiations (INC1) this fall and then sustain that engagement throughout the INC process. USCIB will continue to develop member engagement in the coming weeks and months, but we encourage members to come to us with any questions, concerns, or ideas of their own for how to get involved. The negotiation of this treaty, and its outcome, will have an impact across industries. It will be important to bring a broad view of private sector voices into the process.”

UNEA and the negotiating governments are looking for new, innovative ways to engage the stakeholder community in the creation of a multistakeholder action agenda.

USCIB Competition Committee Holds Joint Meeting With ICC

The USCIB Competition Committee held a joint meeting April 13 with the International Chamber of Commerce (ICC) Competition Commission to discuss developments in international competition enforcement.

The meeting featured a keynote presentation on a history of cases brought before the International Trade Commission (ITC) relating to unfair competition under Section 337, according to USCIB Director for Investment, Trade and China Alice Slayton Clark. While Section 337 protects U.S. companies from “unfair methods of competition and unfair acts” related to the importation of articles made by foreign companies, it was considered for years as inappropriate for antitrust litigation. Since the law was amended in 1974 to give the ITC authority to issue cease and desist orders, however, it is now being used more for antitrust filings. Deanna Tanner Okun, former ITC chair and managing partner at AMS Trade LLP, and Lauren Peterson, partner AMS Trade LLP, described how the law developed into the antitrust tool it is today, including details on key cases filed and their outcomes.

Of significance, USCIB member Taylor Owings of Baker Botts reviewed USCIB comments filed last week with the Federal Trade Commission (FTC) and the Department of Justice (DOJ) Antitrust Division on modernizing enforcement guidelines for mergers. USCIB Competition Committee Vice Chair Jennifer Patterson provided updates on details of antitrust legislation moving through the U.S. Congress. USCIB plans to facilitate a member briefing with congressional staff on antitrust legislation as it advances in the months ahead. Finally, USCIB member John Taladay of Baker Botts proposed the creation of a new ICC task force to develop principles for RFIs (requests for information) for non-targeted stakeholders because they have become overly burdensome.

Regarding the ICC Competition Commission workstreams, Compliance and Advocacy Chair Anne Riley reported that ICC is working to expand credit for compliance programs in other jurisdictions across the globe. Riley also reported that late last year, the ICC filed comments regarding the French Competition Authority’s (FCA) new guidance on antitrust compliance programs, highlighting the importance of compliance and providing benchmarks on the objectives, the definition, and the implementation of these programs. In addition, Member of the ICC Merger Control Regimes Task Force (TF) Alex Nourry reported that the TF is currently working on comments to the European Commission on a proposed revision of competition rules regarding horizontal cooperation agreements. USCIB members were solicited and provided inputs. The ICC hopes the revision will ultimately yield better clarity and legal certainty for these agreements.

ICC Competition Commission Chair Francois Brunet encouraged USCIB companies to get more involved in ICC task forces.

USCIB Welcomes Korean Business Colleagues for Discussion on ILO, Labor and Trade issues

Chairman of CJ Group Kyung Shik Sohn (left) and Peter Robinson (right) at USCIB’s NYC office.

Kyung Shik Sohn, chairman of CJ Group and of the Korea Enterprises Federation-FEK (and also Honorary Chairman of the Korean Chamber of Commerce and Industry-KCCI), visited USCIB President and CEO Peter Robinson on April 12.  Sohn was accompanied by CJ America CEO Hyunsoo (Hans) Shin. USCIB Senior Counsel Ronnie Goldberg and Vice President for Corporate Responsibility and Labor Affairs Gabriella Rigg Herzog, joined Robinson for USCIB.

FEK is USCIB’s Korean sister member organization in the International Organization of Employers (IOE). Discussion thus included an exchange of information and perspectives on ILO work in such areas as human rights, supply chains, forced labor and discrimination. KCCI, for which Sohn had served as longtime Chairman, is USCIB’s Korean sister national committee in the International Chamber of Commerce (ICC) and also counterpart as National Guaranteeing and Issuing Association for the ATA Carnet export service.

According to Robinson, discussion also included respective perspectives on Korean and U.S. political environments and the recent Korean elections, U.S.-Korea trade relations and the importance to business of engagement with multilateral institutions. Sohn and Shin also provided an overview of the CJ Group and its American operations, a multinational corporation with operations ranging from Food/Food Services to Bio/Life Sciences, to Media/Entertainment, to Retail/Logistics.

USCIB looks forward to ongoing collaboration with KEF, KCCI and CJ Group.

USCIB Attends UN Global Biodiversity Framework Negotiations in Geneva 

The United Nations Convention on Biological Diversity (UN CBD) convened the Open-ended Working Group on the Post-2020 Global Biodiversity Framework (GBF) in Geneva, Switzerland March 14 – 29 at the Centre International de Conférences Genève.  

Government delegations continued negotiations of the GBF, a proposed set of over twenty targets pertaining to international cooperative action by governments, business and other key actors to protect and steward biodiversity.  

USCIB Senior Vice President for Policy and Global Strategy Norine Kennedy and Policy and Program Associate for Sustainability Agnes Vinblad represented USCIB members during the second week of negotiations in Geneva, March 21 – 25. Kennedy and Vinblad followed developments related to USCIB’s priority targets determined by the USCIB Environment Committee: Target 7 (Pollution and Plastic Waste); Target 13 (Access and Benefit Sharing); Target 15 (Expectations of Business) and Target 17 (Biotechnology). USCIB supported members in attendance, including representatives from Bayer and CropLife.  

USCIB highlighted the importance of all-of-economy approaches, reflecting opportunities and risks in sustainable use and stewardship of biodiversity and ecosystem services. Since the Post-2020 Global Biodiversity Framework is intended to catalyze a participatory inclusive whole-of-society approach, USCIB will continue to advocate meaningful and substantive engagement for business.  

“Looking at new emerging issues for U.S. business relating to this international biodiversity deliberation, we see Digital Sequence Information (DSI) and the sharing of proceeds associated with utilizing this important resource for R&D as an increasingly critical topic,” said Kennedy.  

Target 15 addresses business and biodiversity, and USCIB is concerned about additional burdens on business that could be included in the GBF. Proposals under this draft target include calls for stronger requirements for businesses to assess, monitor, disclose and report dependencies and impacts on biodiversity across operations, value chains and portfolios. USCIB is following these developments closely and will provide members with further details on next steps.

USCIB collaborated with colleagues from ICC who were in attendance including Director of Peace and Prosperity Daphne Yong-d’Hervé and Global Policy Manager of Intellectual Property and Innovation Danny Grajales 

While government delegations made some progress in the GBF negotiations, there will be a further meeting of the GBF Group June 21 – 26 in Nairobi, Kenya to continue negotiations before expected adoption at the resumed UN Biodiversity Conference (COP15) in Kunming, China to take place in the third quarter of 2022 with exact dates yet to be decided.  

ICC Releases Recent Trends in Trade and Trade Finance Report, Includes Impact of Ukraine Crisis on Global Recovery, Inflation

The International Chamber of Commerce’s (ICC) Global Policy department has recently released the report, Recent Trends in Trade and Trade Finance. This report delves into the impacts of the COVID-19 pandemic and the implications on global trade and finance, as well as the major challenges that can hamper a successful economic recovery.

While focused on trade, banking and finance issues, the report is also relevant to other policy areas, such as ICT, workers and the environment.

To complement this analysis, ICC also released a related presentation, looking at the global impact of the crisis in Ukraine on recovery and further inflation through, for example, supply-chain disruptions, lower consumer and business confidence, inflation in agriculture, manufacturing and energy, as well as liquidity and fiscal risks resulting from currency depreciations and increasing financing costs.

According to ICC, the “Recent Trends in Trade and Trade Finance” report will be used for advocacy geared toward increasing resilience to trade disruptions by enhancing trade digitalization.

 

 

USCIB Provides Business Recommendations During ‘Our Common Agenda’ Consultation at UN Headquarters

Peter Robinson at the United Nations HQ in NY

USCIB President and CEO Peter Robinson was invited as a speaker for the fifth and final Informal Thematic Consultation on the United Nations report Our Common Agenda (OCA) on March 11 under the theme Enhancing International Cooperation. Representing USCIB, Robinson attended the consultation in person at the UN Headquarters in New York. 

In his remarks, Robinson referenced a quote by UN Secretary General António Guterres on how the international community currently is facing a momentous choice: will we “break through or break down?”  

“This question is even more urgent in light of recent disruptive events,” said Robinson. “Can the multilateral system survive these challenges? For business, the answer must be yes. Moreover, the private sector is part of the support structure needed to restore and strengthen the multilateral system and realize Our Common Agenda’s vision of more inclusive international cooperation.”

Robinson then went on to express gratitude to USCIB’s partners in the global business community, “When it comes to international cooperation, our focus here today, USCIB is privileged to be part of global leading business groups dedicated to working with the multilateral system – ICC, IOE and BIAC.” 

Highlighting business recommendations to the UN in taking forward the proposals set out in the OCA, Robinson advocated for the need to regard business and employers’ organizations as essential attributes of democratic and inclusive governance in both national and international settings and the critical need to crowd in and mainstream public-private sector partnerships.  

“Let me close with what might at first sound like a provocative statement: there can no longer be any conflict of interest between the private sector and the UN,” added Robinson. “Time and again, whether in response to the pandemic, or in unprecedented support for the Paris Agreement, or in humanitarian responses to help refugees, the private sector has leaned into international cooperation for our shared interests. Let us pursue the OCA’s opportunities through inclusive practical multilateralism, involving business, for the UN we want and need.” 

The President of the United Nations General Assembly (UNGA) Abdulla Shahid has convened five informal thematic consultations on the landmark UN report, Our Common Agenda (OCA), released by Guterres in September 2021. Through a five-part series of consultations, commencing with the first one in February 2022, Member States and other stakeholders, including the private sector, have been given the opportunity to discuss the proposals outlined in the OCA and their potential implementation in the Decade of Action.  

To find more information on Our Common Agenda, please visit this website.