That's the subject of a long-running court battle. Apparently, during the FTAA talks, USTR wrote a "white paper" in which it offered commentary on the interpretation of the phrase "in like circumstances" in the context of the investment chapter. The Center for International Environmental Law has been trying to get this paper for years, but a U.S. appeals court opinion from last Friday seems to have put an end to the fight. It's a fairly short opinion, and interesting even if you don't know much about FOIA issues (which I don't). I had the following thoughts:
-- USTR is doing white papers on issues such as the meaning of "in like circumstances"? Are other governments doing this as well? What I'd really like to see is a trade negotiating round where all we did is clarify the many and varied legal provisions for which the meaning is uncertain, and hash out a clear, agreed interpretation.
-- One of USTR's concerns seemed to be that foreign investors could use this paper in a case against the U.S. to influence a tribunal's interpretation. The U.S. defends many investment cases, and in doing so offers up interpretations of this and other provisions. Was the FTAA commentary different from what it argues in cases now? Why? What changed over time?
-- Another concern was the impact on current negotiations. I'm not a negotiator, I've never been a negotiator, and I have very little idea how negotiations work. But does what USTR said about this provision in 2000 really have much impact on its ability to push particular views in negotiations today? Can't they just say, we said X then, but we think Y now?
And speaking of court decisions on secrecy in trade negotiations, this comment points to an EU decision on a similar point (issued on the same day!): http://curia.europa.eu/juris/document/document.jsf?text=&docid=138132&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=665977