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After the West African Ebola epidemic of 2014, hardly anyone contests that the World Health Organization (WHO) made fatal mistakes during the crisis. It reacted too late and did too little to contain the outbreak before it got out of control. And it once again exposed its deeply entrenched dysfunctions that make it so difficult for the organization to live up to its role as the central standard setter, coordinator and crisis manager in global health

The post The exception should become the rule in the World Health Organization appeared first on OUPblog.

By Richard S. Grossman

As an early-stage graduate student in the 1980s, I took a summer off from academia to work at an investment bank. One of my most eye-opening experiences was discovering just how much effort Wall Street devoted to “Fed watching”, that is, trying to figure out the Federal Reserve’s monetary policy plans.

If you spend any time following the financial news today, you will not find that surprising. Economic growth, inflation, stock market returns, and exchange rates, among many other things, depend crucially on the course of monetary policy. Consequently, speculation about monetary policy frequently dominates the financial headlines.

Back in the 1980s, the life of a Fed watcher was more challenging: not only were the Fed’s future actions unknown, its current actions were also something of a mystery.

You read that right. Thirty years ago, not only did the Fed not tell you where monetary policy was going but, aside from vague statements, it did not say much about where it was either.

Given that many of the world’s central banks were established as private, profit-making institutions with little public responsibility, and even less public accountability, it is unremarkable that central bankers became accustomed to conducting their business behind closed doors. Montagu Norman, the governor of the Bank of England between 1920 and 1944 was famous for the measures he would take to avoid of the press. He adopted cloak and dagger methods, going so far as to travel under an assumed name, to avoid drawing unwanted attention to himself.

The Federal Reserve may well have learned a thing or two from Norman during its early years. The Fed’s monetary policymaking body, the Federal Open Market Committee (FOMC), was created under the Banking Act of 1935. For the first three decades of its existence, it published brief summaries of its policy actions only in the Fed’s annual report. Thus, policy decisions might not become public for as long as a year after they were made.

Limited movements toward greater transparency began in the 1960s. By the mid-1960s, policy actions were published 90 days after the meetings in which they were taken; by the mid-1970s, the lag was reduced to approximately 45 days.

Since the mid-1990s, the increase in transparency at the Fed has accelerated. The lag time for the release of policy actions has been reduced to about three weeks. In addition, minutes of the discussions leading to policy actions are also released, giving Fed watchers additional insight into the reasoning behind the policy.

More recently, FOMC publicly announces its target for the Federal Funds rate, a key monetary policy tool, and explains its reasoning for the particular policy course chosen. Since 2007, the FOMC minutes include the numerical forecasts generated by the Federal Reserve’s staff economists. And, in a move that no doubt would have appalled Montagu Norman, since 2011 the Federal Reserve chair has held regular press conferences to explain its most recent policy actions.

The Fed is not alone in its move to become more transparent. The European Central Bank, in particular, has made transparency a stated goal of its monetary policy operations. The Bank of Japan and Bank of England have made similar noises, although exactly how far individual central banks can, or should, go in the direction of transparency is still very much debated.

Despite disagreements over how much transparency is desirable, it is clear that the steps taken by the Fed have been positive ones. Rather than making the public and financial professionals waste time trying to figure out what the central bank plans to do—which, back in the 1980s took a lot of time and effort and often led to incorrect guesses—the Fed just tells us. This make monetary policy more certain and, therefore, more effective.

Greater transparency also reduces uncertainty and the risk of violent market fluctuations based on incorrect expectations of what the Fed will do. Transparency makes Fed policy more credible and, at the same time, pressures the Fed to adhere to its stated policy. And when circumstances force the Fed to deviate from the stated policy or undertake extraordinary measures, as it has done in the wake of the financial crisis, it allows it to do so with a minimum of disruption to financial markets.

Montagu Norman is no doubt spinning in his grave. But increased transparency has made us all better off.

Richard S. Grossman is a Professor of Economics at Wesleyan University in Connecticut, USA and a visiting scholar at Harvard University’s Institute for Quantitative Social Science. His most recent book is WRONG: Nine Economic Policy Disasters and What We Can Learn from Them. His homepage is RichardSGrossman.com, he blogs at UnsettledAccount.com, and you can follow him on Twitter at @RSGrossman. You can also read his previous OUPblog posts.

The post Transparency at the Fed appeared first on OUPblog.

        

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By Ian A. Laird

The recent adoption in July 2013 by the United Nations Commission on International Trade Law (UNCITRAL) of the Rules on Transparency in Treaty-based Investor-State Arbitration marks an important milestone in the development of international investor-state arbitration. In the early days of this type of arbitration in the late 1990s, tribunals like those formed under Chapter 11 of the North American Free Trade Agreement (NAFTA) were subject to criticisms that the process was “secret’ and thus not legitimate.

The new Transparency Rules respond to many of these old critiques and UNCITRAL can be applauded for the result of its significant efforts. In particular, the Transparency Rules include provisions addressing: the free publication of information and documents submitted in an arbitration (Articles 2-3), the submission of amicus briefs (Article 4), submissions by non-disputing treaty Parties (Article 5), open hearings (Article 6), and the protection of confidential information (Article 7).

However, despite the good news, there is a counter-tension in the transparency debate in investor-state arbitration in favor of secrecy and the protection of government information. A default to confidentiality and privacy has its historical origin in the commercial arbitration roots of the UNCITRAL Arbitration Rules, but was also evident in more recent statements by the UNCITRAL members in the negotiations that resulted in the new rules.

The tension was made most evident in Article 7 of the Transparency Rules, titled “Exceptions to transparency”, and specifically in subparagraph (2) where the critical definition of “confidential or protected information” is set out. Although subparagraph (3) of the article makes clear that a tribunal has the authority to determine whether a document is confidential or protected, this is undermined by subparagraph (2)(c) which states that information of the respondent State party to the arbitration designated as protected is determined by the law of the respondent State. This is in contrast to earlier negotiation text versions of Article 7(2)(c) where such determinations would have been determined by the tribunal.

Vienna International Centre. Photo by BambooBeast, 2011. CC-BY-SA-3.0 via Wikimedia Commons.

In effect, by making domestic law the governing law concerning the designation of documents as confidential, the ultimate authority to determine whether documents should be made public is effectively taken out of the hands of a tribunal. In well-developed systems of access to government information, such as with the Freedom of Information Act (FOIA) in the United States, or the Access to Information Act (ATIP) in Canada, this may not be problematic as there are domestic remedies for when government officials err too far on the side of secrecy.

The problem will be that, with States that have no such due process mechanisms, and a policy default to secrecy, Article 7 could well force tribunals to apply laws that are contrary to the very transparency objectives of the new Transparency Rules. The domino effect of this approach is that State respondents may apply the same restrictive approach to the production of documents to the arbitration itself – thus impeding transparency and potentially violating the new rules.

Some members of the UNCITRAL negotiating group believed the approach which was ultimately included in Article 7(2)(c) could be “open to abuse”. Specifically the view was offered in the October 2012 session of the UNCITRAL Working Group that “providing for mandatory application by a State of its national law in relation to information provided by it would permit a State to circumvent the object of the rules by introducing legislation precluding the disclosure of all information in investor-State disputes. In response, unanimous support was expressed for the proposition that it was not permissible for a State to adopt UNCITRAL rules on transparency and then use its domestic law to undermine the spirit (or the letter) of such rules.”

The compromise that occurred leading to the final version of the Transparency Rules Article 7(2)(c) was the inclusion of provisions in Article 1 relating to the “discretion and authority of the tribunal” to promote the transparency objectives of the new rules and provide a mechanism for balancing confidentiality and transparency. As stated in Article 1(6): “In the presence of any conduct, measure or other action having the effect of wholly undermining the transparency objectives of these rules, the arbitral tribunal shall ensure that those objectives prevail.”

It begs the question: what if a respondent State only partially undermines the transparency objectives of the rules? How such a provision will be applied in future by tribunals in the face of a respondent State intent on maintaining secrecy will be an important test of the effectiveness of the new UNCITRAL Transparency Rules.

Ian A. Laird is a Partner in the Washington, DC office of Crowell & Moring LLP and the Co-Founder and Editor-in-Chief of Investment Claims, an online law resource from Oxford University Press. He is also an Adjunct Professor at Columbia Law School and Georgetown University Law Center.

Investment Claims is a regularly updated collection of materials and analysis used for research in international investment law and arbitration. It contains fully searchable arbitration awards and decisions, bilateral investment treaties, multilateral treaties, journal articles, monographs, arbitration laws, and much more, all linked and cross-referenced via the Oxford Law Citator.

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Aztec mask of Xiuhtecuhtli, c. 1500, of Mixtec-Aztec provenance (Photo credit: Wikipedia)

I’m using this poem of mine to lead into my subject of the day.

Window to the Soul

My presence acts as a window

To the human known as me.

Through that window you

Can see masks I wear eternally.

This mask reflects where I’ve been,

Still more show what I do with time.

Another suggests secrets held within;

Each mask a new persona.

Feathers, sequins, jewels, glitter

Before the beholder’s eyes,

Dropping hints about who I am,

Yet leaving me secured, invisible.

 
Each of us has gone through cycles within our lives. The practice is normal and human. We start as children learning all the lessons that will take us to an age where driving and dances are the norm. Some of us also take a path, somewhere along the way, that forces us to grow up all the sooner.

Once we have the ticket to responsibility called “a license,” we move on to planning the next decade of our lives; college or a job, singlehood or marriage, childless or not. They all make it into the mix of aspirations and goal lists.

Rules guard these bastions of normal living in our world. Each culture has its own signposts and traffic tickets. Once in a while, cultures crossover into each other, and create mutual signposts and tickets. It’s up to the average human to learn all of these and navigate the highways of modern living.

For all of the meandering we do in our lives, how much of ourselves do we really put out there for others to see or know?

“Plenty,” you say. But, do we really? The internet has made a public forum of many of our lives’ aspects. We blog, comment, dole out pieces of ourselves on Facebook on a daily basis and think nothing of it. It seems expected of web users to be “Transparent.”

The question remains. How much of our true selves do we reveal to the public?

Are we not merely shedding our masks, one at a time; those masks that protect us from revealing too much of the one who resides within the core of self?

I am a writer. I write about many things for many types of readers. My public image reveals those aspects of my writer’s mask. I’m female. Enough said on that score. I’m opinionated because I was taught to be so. Education will do that when it isn’t stifled by arbitrary bureaucratic controls.

Yet, within all I’ve revealed about who I am, few really know me, and I prefer it that way. Our deeds reveal more about us than anything we can say about ourselves.

My poem says a bit more in its way. It intimates that masks are all we see of each other. We all do it, and we do it because the world isn’t always the safest place to live.

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