Constructive Ambiguities in International Trade Law
Some recent bilateral trade agreements such as the Australia-United States Free Trade Agreement (AUSFTA) and Republic of Korea-United States Free Trade Agreement (KORUSFTA)have produced final texts after contentious and largely unresolved negotiations about whether, for example, pharmaceutical innovation (a constructive ambiguity) should be 'valued' (also a constructive ambiguity) through the operation of nominally competitive markets (requiring strong anti-trust law to be effective) (the United States position) or through expert evidence-based assessment of objectively demonstrated cost-effectiveness)the Australian and Korean positions). Concern has been expressed in the academic literature that the inclusion of Non-violation nullification of benefits (NVNB)provisions in such bilateral trade agreements could encourage ongoing lobbying by multinational corporations of domestic policy makers to pass legislation rewarding their version of the trade deal mentioned constructive ambiguity of innovation (see Annex 2C.1 of the AUSFTA) causing issues for democratic sovereignty over domestic policy.
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