5.1 Introduction

Women across countries and regions face many obstacles that hamper their capacity to benefit fully from international trade and more generally from their participation in the economy. Hurdles include time poverty; discriminatory legal rules and social norms; limited access to productive resources and technology; and inadequate opportunities for education, training, and skill development. These shortcomings are also found in LDCsFootnote ¹ and are magnified by persistent and acute development challenges that include high levels of poverty, deficient infrastructure, limited productive capacities, and a mostly low-skilled labour force.

This challenging situation has become even more dramatic as a result of the COVID-19 pandemic that has increased women’s already heavy burden of domestic and care work,Footnote ² and has escalated the instances of male violence against them.Footnote ³ Moreover, the pandemic has had a devastating economic impact on women by severely hitting sectors and occupations in which they are mainly involved.Footnote ⁴

This chapter unfolds as follows: Section 5.2 provides a brief overview of the LDCs, their position in the global economy and the role of women in the economy of LDCs. Section 5.3 then explores the measures implemented by the LDCs to help people and companies to shoulder the pandemic-induced economic shock. Among the many measures put in place, it singles out those that, directly or indirectly, by design or by coincidence, have the potential to especially benefit women. Section 5.4 then tries to answer the following questions: Is there a good match between women’s needs and what so far has been provided to them through the rescue packages? What measures would be necessary to allow women to play a more active role in the economy, including in international trade, beyond the emergency measures? What are the preconditions to avoid going back to ‘business as usual’? Section 5.5 concludes.

5.2 The LDCs in the Global Economy and the Role of Women

5.3 The COVID-19 Pandemic, LDCs, and Women

5.4 The Way Forward

Going back to ‘business as usual’ is not a suitable alternative for the LDCs, especially for women living there. This chapter has provided an overview of the main shortcomings that the LDC were already facing before the pandemic hit them. The situation has dramatically worsened since. If not addressed, these shortcomings will curtail LDCs’ prospects for development and for a more beneficial participation in the global economy, which will reverberate for women’s prospects.

LDCs have put in place a host of policy measures that aim at attenuating the adverse impact of the pandemic on their populations and economies. As this chapter has shown, several of these measures address concerns and problems faced by women in LDCs, though the funds available undoubtedly fall short of the needs.

Looking forward, LDCs need to design and implement policies and strategies aimed at their mid- to long-term development prospects in such a way that women’s concerns are properly tackled. Addressing and overcoming the longstanding barriers women face in all spheres should be at the top of the new agenda of all countries, including the LDCs.

What would building forward differently mean for the LDCs and especially for women in the LDCs? A number of measures are suggested in the following. While some of them refer to deepening and broadening policy measures adopted in response to the pandemic shock, others are targeted at the long-standing development challenges of LDCs.

5.5 Conclusion

This chapter has briefly presented the position of the LDC in the world economy and in international trade and has focused on women in the LDCs, looking at the role women play in the economy and in trade. It has highlighted the many problems that women face in the LDCs, exacerbated by unresolved development challenges and currently magnified by the pandemic.

The LDCs, as all other countries, implemented rescue measures to shelter their people and economies from the impact of the pandemic. A considerable number of measures appear to have the potential to directly or indirectly, by purpose or by coincidence, benefit women. They include those supporting MSMEs, highly female-intensive sectors such as agriculture, tourism, and the textiles and garment sectors, or informal workers. However, the amount that the LDCs have been able to devote to their inhabitants is extremely low – USD 18 per inhabitant as compared to USD 1,365 in rich countries, with a consequent limited and short-term effect. To make their interventions more impactful and long-term, at the domestic level LDCs need to strengthen their fiscal capacity, increase domestic resource mobilization, and improve the effectiveness of public expenditure, while from the outside they need a mix of financial resources, debt alleviation, transfer of technology, and capacity‐building.

The chapter concludes by highlighting some measures that would help the LDCs build forward differently for the benefit of their populations, and especially women. The upgrading of human capital, the overall improvement of the business environment, a renewed interest in the agricultural sector and rural development, special attention to the development and gender implications of further linking the manufacturing and the services sectors, and support for women’s participation in decision-making processes, including those related to the rescue packages, were singled out. Moving more specifically to how trade could contribute to improve the prospects for women in the LDCs, the chapter emphasizes that some developments look particularly promising, including conducting on a regular basis ex ante gender assessments of trade agreements, strengthening the collection of data that would allow the distributive effects of trade to be grasped fully, making gender considerations a feature of all WTO work and deliberations, and ensuring that the trade environment remains free, fair, non-discriminatory, transparent, predictable, and stable. The chapter calls for policy coherence between domestic, regional, and international policies and initiatives. Coherence is identified as a precondition for countries, including the LDCs, to be able to face the unprecedented human, social, and economic challenges deriving from the pandemic and avoid women bearing a disproportionate brunt of it.

6.1 Introduction: Policymaking for Trade and Gender

Following the 11th Ministerial Conference (MC11), World Trade Organization (WTO) debates among members have concentrated around four substantive agendas: investment facilitation; micro, small, and medium-sized enterprises (MSMEs); services DR pursuant to Article VI:4 of the General Agreement on Trade in Services; and e-commerce. The four agendas produced joint initiatives announced on 13 December 2017 during the final day of the MC11.Footnote ¹ Among the four JSIs, negotiations between ultimately sixty-seven WTO members on services DR successfully concluded on 2 December 2021.Footnote ²

The WTO discussions on the interplay between the cross-cutting agenda for gender equality anchored in the Joint Declaration on Trade and Women’s Economic Empowerment on the Occasion of the WTO Ministerial Conference in Buenos Aires in December 2017 (the Buenos Aires Declaration on Women and Trade) and the four Ministerial Statements picked up steam post-MC11.Footnote ³ These efforts see the WTO hosting a series of discussions sparked by the declaration on a range of specific topics to share best practices and national experiences with a view to unlocking trade benefits for women.Footnote ⁴ Open to all members, the Informal Working Group on Trade and Gender meets at the WTO to further the discussion.Footnote ⁵

New and enhanced disciplines on services DR, including a provision on gender equality, were projected to deliver outcomes at the MC12 in June 2022, initially scheduled to be held in Geneva from 30 November until 3 December 2021. Participants in the negotiations on DR concluded text-based discussions at their meeting on 27 September 2021. Signatories to the initiative proceeded to circulate national schedules of specific commitment pursuant to the General Agreement on Trade in Services (GATS).Footnote ⁶

These efforts were to pave the way for the conclusion of the negotiations by MC12 in 2021.Footnote ⁷ Despite the postponement of MC12,Footnote ⁸ negotiators persisted and reached an agreement on services DR among the JSI’s sixty-seven WTO members on 2 December 2021 (JSI 2021).Footnote ⁹ As a plurilateral agreement within the WTO, the JSI’s disciplines will be applied on a most-favoured nation (MFN) basis, and the members that are signatories will inscribe any commitments into their schedules under GATS as additional commitments.Footnote ¹⁰ This means that it will benefit the full WTO membership, and not solely the sixty-seven signatories.Footnote ¹¹ The JSI 2021 includes a provision on gender equality where a member adopts or maintains measures relating to the authorization for the supply of a service.

As a plurilateral agreement, the conclusion of JSI 2021 does not form part of the ‘Geneva Package’ of negotiated multilateral outcomes that MC12 secured when it was successfully concluded on 17 June 2022.Footnote ¹² However, the three co-chairs of the Informal Working Group on Trade and Gender issued a statement at MC12 highlighting the achievements of WTO members’ joint work and reaffirming their commitment to advancing gender equality in trade.Footnote ¹³

The chapter will organize discussions of the effects of trade on gender gaps around the four modes of supply of services in GATS Article I:2 (a–d), to reflect the crucial avenues for economic participation in the economy that are at stake. After this short introduction of the trade and gender agenda, Section 6.2 outlines the economic structures driving the gender gap and specifically the gender digital divide. The chapter then turns to examining the relationship between gender, e-commerce, digital trade, and services trade in Section 6.3. Next, Section 6.4 restates a framework for gender-inclusive governance for trade and examines policy prescriptions for bridging the gender digital divide. Section 6.5 examines policy interventions in digital trade. Section 6.6 looks at policy interventions in services trade based on a close reading of the provision on gender equality introduced in DR to unlock its legal-political implications. Section 6.7 concludes.

6.2 The Gender Gap in Trade

According to the World Economic Forum’s (WEF) definition, the gender gap is the difference between women and men as reflected in social, political, intellectual, cultural, or economic attainments or attitudes.Footnote ¹⁴ The chapter subscribes to the understanding that the gender gap encompasses the structural differences women face in terms of (i) the gendered composition of the labour force, (ii) women’s primary responsibility for reproductive work, and (iii) women’s differential access to and control over resources relative to men.Footnote ¹⁵

Research in the last decade has begun to produce evidence that the assumption that trade reforms will benefit men and women equally does not always hold. Because of the different roles that women and men have in society, trade policy does not automatically generate gender-neutral results.Footnote ¹⁶ Simply put, trade rules are not gender-neutral.Footnote ¹⁷ Gender-based inequality in turn impacts trade patterns and trade outcomes because it influences the patterns of resource allocation and competitive advantages of countries.Footnote ¹⁸ The impact of trade on women and men differs because they tend to operate in different sectors and have differentiated access to resources.Footnote ¹⁹

Women are impacted in various and overlapping roles as producers, employees, business owners, managers, and consumers. In turn, these factors shape different supply responses, vulnerabilities to economic change, and, more broadly, abilities to seize export opportunities and absorb adjustment costs.Footnote ²⁰ With women as workers, but also as entrepreneurs and business owners, concentrating in less export-oriented sectors such as services, trade liberalization does not extend the same benefits of competition and broader supply that drive down prices.Footnote ²¹

The International Trade Centre (ITC) finds that the gender gap in trade is largely due to the concentration of women’s employment in less export-oriented sectors, notably in services sectors.Footnote ²² The Organisation for Economic Co-operation and Development (OECD) arrives at the same conclusion.Footnote ²³

It is not that services are less ‘tradeable’ than goods, though services sectors are associated with being less export-oriented than those for goods. In fact, whenever a good is exported and crosses borders, the supply of a service is involved, whether it is at the early stages of design, transportation, or delivery. Thus, GATS Article I:2 (a–d) defines trade in services as the supply of a service from the territory of one member into the territory of any other member (cross-border), in the territory of one member to the service consumer of any other member (consumption abroad), by a service supplier of one member, through commercial presence in the territory of any other member (commercial presence), or by a service supplier of one member through the presence of natural persons of a member in the territory of any other member (mode 4). Moreover, services are integral to global value chains (GVCs), to the effect that services generate trade in value added.

Contemporary research reflects that services are not as often or as easily supplied along the four modes of supply, and instead such services may be supplied domestically and without the service, the worker, or the business crossing any borders to new markets. Thereby, the supply of services would also avoid the regulatory barriers to trade that, generally speaking, are pronounced in services trade.Footnote ²⁴ This is why GATS Article VI on DR imposes disciplines on domestic regulations in committed services sectors to discipline domestic regulations that are neither discriminatory nor quantitative in nature, where domestic regulations could nonetheless have trade-restricting effects on services.

A main reason why women tend to concentrate in services is that several of the sectors are gendered. The mining, oil, and gas sectors are examples of sectors with a low ratio of women among its labour force,Footnote ²⁵ while high concentrations of women workers are observed in sectors such as education and healthcare.Footnote ²⁶ Generally speaking, traditional healthcare cannot be supplied at a distance cross-border, and supplying healthcare to consumers abroad requires authorization, while travelling to a different country as a healthcare provider would often require a permit or a visa. Thus, the benefits of trade liberalization would not extend to those sectors and consequently double down on the concentrations of women supplying such services. Data shows that firms that export pay higher wages.Footnote ²⁷ More so, arguably it is to the detriment of women workers specifically if the benefits associated with trade do not extend to them.

However, trade does create jobs for women in export-oriented sectors, and those jobs also serve to bring more household resources under women’s control, which in turn leads to greater investments in the health and education of future generations. However, differences in wages earned by men and women persist in all countries.Footnote ²⁸

Women’s primary responsibility for reproductive work implies a time constraint on participating in trade as women carry most of the burden of child rearing and domestic work, which decreases flexibility.Footnote ²⁹ The third structural difference women face pertains to access to and control over resources.Footnote ³⁰ A woman may, for example, run the household but not control any capital, or work in agriculture but not hold property rights. Other examples would include lack of recognition before the law preventing a woman from opening a bank account in her own name, or impaired access to education, knowledge, finance, or other means of value that are prerequisites to economic participation.Footnote ³¹

Against this backdrop, it is submitted that the existing patterns of trade to a large extent perpetuate structural challenges facing women in the economy at large: (i) Women face greater disadvantages in responding to new economic incentives because of gender differences in access to productive resources, including land, credit, education, skills, infrastructure, utilities, and services. (ii) Women tend to concentrate in fewer sectors, and face gendered job segregation. (iii) Time constraints dampen women’s response to potential opportunities in new economic activities, and poor infrastructure and poor services heighten these challenges for women in developing countries.Footnote ³²

Gender-based differential access to or constraints on labour, time, and resources create a gap. We speak of a ‘gender gap’ to reflect how the structural differences produce de jure and de facto discrimination, and because the conditions for the gender gap are based on sex, but on gender more broadly. These structural differences can produce discrimination against more groups of individuals, reflected in a wider concept of gender equality that is sensitive to sex, status, and socio-economic norms. Thus, the gender gap is a multidimensional concept.

Structural challenges produce gender inequality in the economy that interacts in complex ways with socio-economic components such as origins and status, and with the divides in trade and the economy at large that are broadly accepted as determinants of export capabilities, in particular firm size, level of development, and level of digitalization. The gender gap, conceptually centred around labour, time, and resource constraints, interacts with such divides to the effect that the divide can deepen and the gender gap can widen by implication. Cross-cutting divides to that effect would include the trade finance gap, the divide between MSMEs and larger entities, divides between levels of development among countries, and the digital divide. The implication may be understood as the multiplicity of the gender gap.Footnote ³³

6.3 The Relationship between Gender, e-Commerce, Digital Trade, and Trade in Services

One avenue for increasing gender-inclusive participation in the trading system is through e-commerce. The sector performs extremely well and has a number of advantages over traditional commerce, which was rocked by lockdowns prompted by the global pandemic that adversely affected women’s economic fortunes in particular.Footnote ³⁷ During this time, e-commerce saw the reverse trend, with demand soaring and supply following suit to the extent that the sector generated massive revenues for online shopping giants in particular, despite supply chains experiencing delays in delivery.Footnote ³⁸

A joint paper between the United Nations Conference on Trade and Development (UNCTAD), the WTO, and the World Bank draws on empirical analyses to provide greater clarity to the interplay between women, trade, and ICT in the face of increasing digitalization. The study analyses how technological developments such as e-commerce platforms and other digital solutions enable and can enhance women’s participation in trade.Footnote ³⁹

Research has also produced recommendations on policy prescriptions for how e-commerce can incorporate gender equality to meet SDG 5 by acting on the goal’s explicit reference to using technology to deliver gender equality. This research presents a framework for understanding the multiplicity of gender gaps in e-commerce and provides an analysis of key regulatory and policy challenges women face in e-commerce, before advancing a multi-level approach to incorporating gender-inclusive e-commerce regulation into trade policy.Footnote ⁴⁰

Services play an increasingly important role in job creation, economic output, and in trade in countries at all development levels.Footnote ⁴¹ Moreover, the supply of services is ubiquitous to e-commerce. Trade in services is also at the heart of digital trade, which has emerged as a reference point for policy practice dedicated to online trade, almost by definition involving the supply of a service under one of the modes of supply. In the European Commission’s taxonomy, and as reflected in the EU’s trade policy communication, ‘An Open, Sustainable and Assertive Trade Policy’ from 2021, digital trade refers to commerce enabled by electronic means, including by telecommunications and/or ICT services. Digital trade covers trade in both goods and services, and it affects all sectors of the economy.Footnote ⁴²

Yet regardless of the policy practices devoted to the subject, trade in services remains severely understudied from a gender perspective. While a body of mainly empirical research on gender and trade in services linkages in a development context is emerging,Footnote ⁴³ more research is needed.

Moreover, e-commerce, digital trade, and trade in services might separately or in combination feed into GVCs. Bamber and Staritz reassess the idea of feminization of GVCs of trade by focusing on the implications of countries moving into higher GVC sectors, namely in technology. Here, a need for much more evidence-based research is identified but a picture emerges of a reality that is not benefiting women, with lower female participation in high-tech sectors. The picture even suggests defeminization of GVCs. When examining the cases of the Dominican Republic and Costa Rica, Bamber and Staritz find that the female intensity in the medical devices sector was higher from the outset and held steady as firms in the sector upgraded into more sophisticated products where women found quality jobs, permanent contracts, benefits, and relatively high wages. In contrast, a study on mining-related GVCs finds that the growing recourse to digital technologies has yet to translate into increased levels of female participation.Footnote ⁴⁴

This backdrop suggests that making the connection between gender, e-commerce, digital trade, and trade in services, and applying lessons learned, can advance the research agenda and provide value to policy-making.

6.4 Multi-level Framework for Securing Incremental Change for a Comprehensive Shift towards Gender-Inclusive e-Commerce and Trade Policy

It is the central proposition of this chapter that policy intervention can counter the gender-based constraints that impede participation of women in trade. The vehicle proposed for securing incremental change for a comprehensive shift towards gender-inclusive trade policy is a multi-level framework.

Efforts to promote gender equality for economic growth from participation in trade suggest that engaging the domestic policy level is imperative for implementation. This means focusing on implementing domestic reforms, such as those identified by the World Bank.Footnote ⁶⁴ In line with this thinking, a ‘bottom-up approach’ consists of engaging the domestic policy level. Domestic reform then feeds into Regional Trade Agreements (RTAs), and in turn is informed by advancements in RTAs.

Research has mapped gender-related provisions across RTAs, showing a diversity in approaches that suggests much experience to draw from.Footnote ⁶⁵ Regional trade policy instruments that have embraced provisions on gender equality include, inter alia, the FTA between Chile and Canada, the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), and the African Comprehensive Free Trade Agreement (AfCFTA).Footnote ⁶⁶ Regional experiences with drafting, scoping, and implementing gender-related provisions and chapters, and their interplay with other disciplines, could improve gender-inclusive governance at large, and inform WTO negotiating modalities. Namely, the experience of including chapters and provisions on gender equality in RTAs would inform policy interventions in the multilateral rules-based system, on a multilateral level, or in a plurilateral setting. The plurilateral setting encompasses the JSIs, and the JSI on services DR specifically includes a provision on gender equality.

The second component to the bottom-up approach involves policy interventions in specific issues. For e-commerce and digital trade, the bottom-up approach would direct policy intervention towards the regulatory space of an enabling environment for e-commerce as the key regulatory and policy challenges facing women can be addressed in this regulatory space to overcome key challenges. The JSI on services DR encompasses policy intervention in the form of a specific provision targeting any gender-based discrimination in the authorizations for the supply of services. Specific issues and specific provisions would then lend themselves to implementing gender-inclusivity and improvement of women’s participation in other issue areas and other disciplines by way of example and of policy practice. Furthermore, the modalities would be shaped to capture the multiplicity of the gender gap.

Supporting gender mainstreaming is key to a ‘top-down approach’ to gender-inclusive trade policy. Gender mainstreaming can engage all WTO initiatives, including the JSIs, to bring about gender-inclusive economic growth in the spirit of the SDGs and in fulfilment of the aspirations of the Buenos Aires Declaration. Such an incremental approach could help ensure implementation of gender-inclusive governance across the WTO acquis and anchor gender equality in the rules-based system. Building on the JSI on services DR and its landmark provision on gender equality, and the traction the trade and gender agenda had at MC12, would contribute to consolidating the agenda and exercise policy pressure on the multilateral trading system top-down as well as on the domestic level and upwards. These efforts could build on experience from RTAs incorporating gender equality in different ways.

On an institutional level, continuous strengthening of the coordination between the WTO, RTAs, UNCTAD, the World Bank, the ITC, and the OECD on modalities for supporting the necessary multi-level coordination holds promises for advancing gender-inclusive trade policy-making. Continuous efforts to mainstream gender in trade policy are crucial for sustaining the momentum for gender equality in the WTO.

Furthermore, reading gender equality into the rules-based system could help deliver an incrementally more gender-inclusive trading system across the WTO acquis. It would also require dedicating time, resources, and political will to continuing discussions on trade and gender in the WTO. The prospect of an outcome at the MC12 seems particularly promising to this end.

Bringing the market access component of the key policy challenges for gender-inclusivity in trade to the forefront when designing and implementing gender-inclusive programmes can support accessing markets, expand and strengthen market participation, while ensuring sustained gender-inclusion. This is operationalized by employing the multi-level framework of combining a bottom-up approach centred around domestic regulations and reform, and a top-down approach revolving around commitments and policy support.

Expanding in services and digital trade requires improving conditions for participating in all modes of supply. The reverse scenario could produce the unfortunate side effect that existing patterns of limited employment and the gendered composition of labour and education are reproduced at the expense of support for women branching into digital products and services via e-commerce and digital trade.

The multiplicity of the gender gap is not fully captured across trade policy instruments – for an on point example, see the JSI outcome on DR. If committing to such a framing, it is important not to lose sight of the broader gender equality issue and its multiplicity, and to safeguard against any gender-preclusive effects.Footnote ⁶⁷ Furthermore, policymakers could prepare the ground for expanding the platform to address how gender is one part of a larger socio-economic issue of de jure and de facto discrimination based on gender, sex, sexual orientation, class, race, and origins.Footnote ⁶⁸

Finally, to support a comprehensive shift towards gender equality, it is strongly recommended to continue the effort to collect more data on all aspects of e-commerce, digital trade, trade in services, and trade at large to support policy-making and implementation of gender-inclusive governance.Footnote ⁶⁹ Collecting data on implementation and the effect of the concluded disciplines on DR, including the provision on gender equality, would lend itself to an uptake in data and support policy-making.

6.5 Policy Intervention to Bridge the Gender Digital Divide

The WTO does not yet offer a comprehensive multilateral response to the digitalization that drives digital trade and e-commerce. However, MC11 saw much more policy attention directed to e-commerce as seventy-one members launched the Joint Statement Initiative on Electronic Commerce (JSI on e-commerce)Footnote ⁷⁰ to initiate exploratory work towards future WTO negotiations on trade-related aspects of e-commerce.Footnote ⁷¹

If coupled with the trade and gender agenda, the JSI on e-commerce would be in line with the thinking behind the multi-level framework’s bottom-up policy intervention in specific issues, and its top-down approach to securing incremental change towards gender-inclusive e-commerce and trade policy. Furthermore, it is the central argument that applying the framework to the modalities shaping e-commerce rules could help secure gender-inclusive e-commerce governance. Recalling the structural differences women face in terms of labour, time, and resources,Footnote ⁷² e-commerce provides flexibility in structuring participation in trade, new markets for employment, and pathways to control over online resources that may be cheaper than traditional business. This suggests a tangible potential for incorporating gender equality into e-commerce rules to form gender-inclusive e-commerce governance. However, it will take effort and policy commitment to overcome the gender digital divide and other aspects of the gender gap given gender-based constraints and differential access to prerequisite resources. In the absence of policy intervention, an acceleration of digitalization could deepen the gender digital divide, which in turn could reverse the status quo for participation in e-commerce and digital trade and lead to backsliding.

Factoring in the domestic aspect is important for participation in e-commerce because 90 per cent of e-commerce is in fact domestic commerce.Footnote ⁷³ Moreover, it is necessary to overcome the divides to upscale a firm to an operation with the resources to export cross-border. Compatibility between domestic, regional, and multilateral frameworks to advance comprehensive gender-inclusive governance would be instrumental to that end.

Achieving a predictable regulatory environment for e-commerce and digital trade could link with incorporating gender equality into DR because service suppliers engaged in cross-border e-commerce might rely on obtaining licences and authorizations when meeting the requirements, regardless of gender, and the predictability of the regulatory environment would improve in consequence.

Embedding these issues within a framework for e-commerce and digital trade that connects with other trade policy agendas would drive more comprehensive implementation of gender equality into trade policy. The JSI points out that a link exists between MSMEs and e-commerce and that furthering gender equality in this nexus could be particularly beneficial for women’s participation and for development. This platform could be used for providing the key access to finance, which also hinges on domestic regulation and reform.

Seeking to embed gender equality even more firmly within the MSME agenda as a development issue and connecting it to e-commerce could be anchored within Aid for Trade, where gender-inclusive initiatives can target the obstacles that women face when trading. The rapid development of technology enabling e-commerce and digital trade, while ensuring that it is gender-inclusive, promises more opportunities for women beyond the sectors where most women currently find employment or work, and could be anchored in enabling environments for e-commerce and digital trade at large.

6.6 Policy Intervention to Bridge the Gender Gap in Services Trade

With most barriers to trade in services being of a regulatory nature and non-tariff-related, the role of domestic regulation and measures over the border in the country receiving the supply of services by any of the means becomes even more important to services trade. Research by the WTO and OECD suggests that the reduction in trade costs from implementing the new disciplines included in the sixty-seven members’ landmark conclusion of an agreement on services DR of 2 December 2021 could amount to USD 150 billion per annum globally, with particularly important gains for financial, business, communications, and transport services.Footnote ⁸³

Further to the disciplines in GATS Article VI, the GATS also establishes the mandate for negotiating additional disciplines in GATS Article VI:4.Footnote ⁸⁴ The provision stipulates that, with a view to ensuring that measures relating to qualification requirements and procedures, technical standards and licensing requirements do not constitute unnecessary barriers to trade in services, the Council for Trade in Services shall, through appropriate bodies it may establish, develop any necessary disciplines. Such disciplines shall aim to ensure that such requirements are, inter alia: (a) based on objective and transparent criteria, such as competence and the ability to supply the service; (b) not more burdensome than necessary to ensure the quality of the service; and (c) in the case of licensing procedures, not in themselves a restriction on the supply of the service. Thus, pursuant to GATS Article VI:4, members agree to further develop rules to ensure that domestic regulations support rather than impede the opening of services markets to trade and investment as a central task for services negotiations.Footnote ⁸⁵

As the reference paper on services regulation explains,Footnote ⁸⁶ members would agree to the disciplines on DR with the objective of elaborating upon the provisions of GATS pursuant to Article VI:4. In doing so, members recognize the difficulties which may be faced by service suppliers, particularly those of developing country members, in complying with measures relating to licensing requirements and procedures, qualification requirements and procedures, and technical standards of other members, and, in particular, the specific difficulties which may be faced by service suppliers from LDCs.

The JSI on services DR is more advanced than the JSI on e-commerce in two ways: first, the JSI on services DR has concluded an agreement, and second, it includes a specific provision on gender equality. These advancements reflect the multi-level framework’s bottom-up approach to policy intervention on specific issues, and its top-down approach to securing incremental change towards gender-inclusive e-commerce and trade policy, and indicate a pathway to gender-inclusive governance for services trade.

DR disciplines are for trade in services sectors positioned to address the regulatory component to the key policy challenges of market access and differential access to resources that women face, as DR disciplines regulatory measures in order to level the playing field.Footnote ⁸⁷ The need for recognition before the law, evidence of gender bias adversely affecting women, and many new opportunities for employment outside the existing gendered composition of the labour force make DR all the more important for women’s economic participation in the supply of services. Such supply often requires a licence or authorization. Thus, DR disciplines are key to economic participation in services trade, and are well positioned to shape the modalities for gender-inclusive trade in services, also spanning the services components to e-commerce and digital trade, where commitments have been made.Footnote ⁸⁸

6.7 Conclusions

Gender-inclusive governance responds to the multiplicity of the gender gap, and how it is a multidimensional concept in the nature of its occurrence, the dynamics of its development, and the manifold ways it interrelates with other divides.

The relationship between gender divides, e-commerce, digital trade, and trade in services can be observed through the lenses of the different modes of supply and in trade patterns. The relationship reflects key policy challenges to participation in that trade – market access, resources, and a regulatory component. Moving towards gender-inclusive governance for e-commerce, digital trade, and trade in services is imperative for sustainable trade policy as digitalization can serve to fuel women’s participation in trade, but in the absence of policy interventions, a deepening of the gender digital divide could have negative effects on gender inequalities.

The proposed multi-level framework shows the regulatory space for gender equality in creating an enabling environment for e-commerce and digital trade, and for incorporating gender equality into the new and enhanced regulatory layer of DR disciplines for trade in services.

What policy interventions are necessary, and why, to meet the moment? This chapter proposes a multi-level gender-inclusive framework for comprehensive narrowing of the gender gap in trade. Addressing the global, structural issue of gender inequality with multi-level approaches to the negotiating modalities, coupled with gender-inclusive governance for e-commerce, digital trade, and services trade, can contribute to closing the gender gap. E-commerce and digital trade alone, despite the promise of digitalization, cannot close the gender gap in trade. Services trade is ubiquitous and an extremely important area of trade that gender-inclusive governance could unlock to the benefit of gender equality. Examining trade in services also point squarely to the role of regulatory barriers and their interconnectedness with market access and access to resources. Disciplining DR pursuant to GATS Article VI and new disciplines pursuant to Article VI:4 may address this head-on. The provision on gender equality has been reduced to its detriment but it still shows a way forward and allows for important lessons that can inform gender-inclusive governance for trade when seizing this moment.

Leveraging the multi-level framework, and extrapolating lessons from policy practice, namely the concluded provision on gender equality in the JSI on services DR, could foster gender-inclusive governance. In that regard, the WTO and its JSIs could help deliver on the imperative of SDG 5 to achieve gender equality and turn high stakes into high reward for its members.

7.1 Introduction

Over the course of the last two decades in particular, trade negotiations have increased in scope, scale and complexity, involving more experts, negotiators and diplomats. This has resulted in additional pressure on smaller developing countries that often have either a limited complement of staff in missions or have only non-resident representation in Geneva, which is the seat of multilateral trade negotiations at the WTO. Furthermore, the increasingly technical nature of trade negotiations can also place a strain on national expertise which is necessary to inform, backstop and support the negotiating process. The evidence confirms that trade missions from small island developing states (SIDS) and least-developed countries (LDCs) have a much lower staff complement, and in turn fewer women, than the average in the UN or the WTO missions in Geneva.Footnote ¹ This can impact the ability of these economies to represent their interests in all relevant aspects of the negotiating agenda. This chapter looks at the representation of women in multilateral trade negotiations, specifically in the context of the WTO, and places it in the context of the overall goal of achieving more gender-sensitive outcomes from trade policy.

An important question is whether the gender make-up of representation has an impact on gender-sensitive outcomes emanating from trade negotiations. Recently it was recognized by the WTO members that trade has an important gender element. But the actual question is whether it has been a result of changing global norms around gender mainstreaming and gender inclusion or is a reflection of more gender-equal representation across the trade landscape – nationally and at the level of the missions in Geneva.

References to gender are present in some of the existing trade agreements,Footnote ² and at the 11th Ministerial Conference held in Argentina in 2017, some WTO members, supported by the work of the International Trade Centre (ITC) and other actors, agreed to the Buenos Aires Declaration on Trade and Women’s Economic Empowerment.Footnote ³ Ahead of Ministerial Conference 12 (MC12), gender seemed to be one of the key topics to see significant advancement.Footnote ⁴ At MC12, held in June 2022, we saw the highest number of women present at the negotiations – negotiating for food security, health and other themes of trade policy. Yet the term ‘gender’ was absent from the key negotiated outcomes. There was some progress made on the outskirts, and a side event, ‘Unlocking Trade for Women’s Empowerment and Sustainable Development’, discussed the operational issues of trade and gender, such as the need to ensure trade and trade agreements contribute to greater gender equality through enhancing gender-sensitive data, better gender-based reporting and greater attention to women owned micro, small and medium-sized enterprises (MSMEs). But the ‘side-ness’ of the event indicates that we have still a long way to go.

While some of the trade agreements do include gender provisions and chapters, and there is momentum to take this further, it is worth looking at the process involved in concluding a trade agreement and ask how women are represented in those trade negotiations and whether greater representation translates into more gender-sensitive outcomes. The existing research on causality is limited but we provide a framework to analyse how, and at what stages, women are part of the negotiating value chain and survey the current representation of women in trade negotiations in Geneva. We argue that, while women’s representation has a positive impact on trade negotiations, it should not be seen as a substitute for active inclusion of gender considerations in negotiated trade policy. There is a lack of literature and data on representation of women in the trade negotiation cycle, which we have sought to partly address by collecting data on the gender composition of the UN and the WTO missions and conducting confidential interviews with women and men involved throughout their careers in trade negotiations. While the names of interviewees will remain confidential, the authors have ensured geographic, gender and thematic diversity of persons interviewed.Footnote ⁵

This chapter is organized as follows: Section 7.2 covers the changes in the nature of trade negotiations and how this has affected the demands on negotiators; Section 7.3 provides collected gendered data on the staff composition of the UN and WTO missions, showing diverging representation among member states; Section 7.4 highlights the importance of networks in supporting the job of a trade negotiator and how gendered socio-economic systems have historically placed women at a disadvantage for such positions; Section 7.5 binds together the altered nature of what trade negotiations are and which challenges women face in trade negotiations as a career choice. Section 7.6 highlights the importance of making a distinction between women participating in trade negotiations and the interests of women being included in trade negotiations. In Section 7.7, we analyse women’s representation as a tool for gender equality. We conclude the chapter, in Section 7.8, with a set of actionable suggestions that can improve the inclusion of issues around women in trade negotiations.

7.2 Trade Negotiations Have Expanded in Scale and Scope

Trade negotiations have expanded in scale, scope and depth.Footnote ⁶ Trade negotiators are increasingly expected to contribute technical and multidisciplinary input and expertise and/or to be able to galvanize these technical inputs from their capital-based experts. New trade agreements tend to build on the already complex scope of agreements under the WTO or in existing bilateral agreements, hence sometimes forcing newcomers to the trade negotiation game to follow the lead that has already been set.

This is particularly the case for smaller countries which may naturally be party to less complex trade negotiations at the bilateral or regional levels. However, it is worth noting that since 2016, every WTO member has been a member of at least one regional trade agreement.Footnote ⁷ This certainly signifies an explosion in the number of negotiations that would naturally have to precede completed trade agreements – both non-WTO and WTO – even though there are different levels of complexities to consider.

The vast majority of the agreements concluded outside of the WTO have been ‘WTO-plus’ – meaning that they go deeper than already existing trade agreements at the WTO. Quite often the ‘plus’ relating to discussions that also happen inside the WTO with a more limited set of countries involved in plurilaterals such as investment, elements of environment, services, gender and others.Footnote ⁸ The reasons for this are rather obvious: fewer partners to negotiate with; a more like-minded approach between partners; and the ability to develop agreement-specific implementation, monitoring and dispute systems. The expectation is that every WTO member will notify its trade agreements to the WTO to ensure that it does not violate the existing multilateral commitments.Footnote ⁹

However, the reality can be a bit more complex given the tension between the notions of ‘globalization’ (through the WTO) and ‘regionalization’ (through regional trade agreements – RTAs) of trade liberalization.Footnote ¹⁰ For the past decade – accelerated by limited success at concluding multilateral agreements (with the Trade Facilitation Agreement and recent Fisheries Subsidies Agreements being exceptions) and emergence of more plurilateral negotiations at the WTO – the balance has shifted from ‘ideological competitors’ to ‘complementary allies.’ Views on regionalization have matured from being seen as undermining trade globalization, to now being viewed as an extension of trade globalization moving the needle forward and complementing the WTO rules.Footnote ¹¹ RTAs are now accepted as avenues for deepening trade liberalization and informing the scope and ambition of multilateral agreements. We are seeing this happen in the area of gender and trade, e-commerce and investment facilitation.Footnote ¹²

Trade is widely seen as one of the main vessels for inclusive and sustainable growth. It permeates the United Nations Sustainable Development Goals (UN SDGs)Footnote ¹³ and during the COVID-19 pandemic it was key to vaccine distribution.Footnote ¹⁴ Ideological differences still persist on what ‘kind’ of trade is best for the environment, equality and sustainability, but there is growing recognition that it does have divergent effects on men and women.Footnote ¹⁵ A growing number of RTAs now include gender chapters.Footnote ¹⁶ However, these chapters are primarily persuasive in intention as in general they do not have enforcement mechanisms attached to them.Footnote ¹⁷ At the same time, if one takes a deeper look at the 2017 Buenos Aires Declaration, it has pushed the needle forward by leading to the formation of an Informal Working Group (IWG) on Trade and Gender in the WTO.Footnote ¹⁸ This group addresses trade and gender issues by encouraging members to exchange practices on mainstreaming gender considerations into programmes and strategies and increase gendered data collection, amongst others.Footnote ¹⁹

Given this increased attention to gender in trade, one can expect that modern trade policy would become more gender-equal not only in its effects, but also in its creation.

Based on the interviews conducted for this chapter, we can conclude that in trade negotiations, women’s representation has often been a proxy for ‘having women’s voices heard’, and therefore more gender-inclusive policy proposals being created throughout the negotiations. We argue, however, that women’s representation in trade negotiations, while having a positive effect, should not be confused with inclusion of issues of importance to women in the context of trade negotiations and agreements – that is, a result that leads to a more gender-equalizing effect of negotiated trade policy.

Women’s representation is a necessary, but not a sufficient condition for a more gender-inclusive trade policy. Gender inclusion is a responsibility of all genders, and although it is ideal to have all of these genders involved in the crafting of gender-sensitive trade policies, as a second-best option it can be assumed that men would be able to sufficiently represent the interests of women with the right tools at hand. However, in the twenty-first century, this scenario is far from ideal.

7.3 Ability to Participate in Negotiations Varies

It is difficult to obtain information on women’s representation in the process of trade negotiations, as quite often this information is confidential, or it is hard to estimate who is engaged in trade negotiations, and at what point. As most of the multilateral trade discussions are led by Geneva missions, we use Geneva for our data collection exercise to survey the overall picture on women’s involvement in trade negotiations.

According to data we collected,Footnote ²⁰ there are 182 missions to the UN in Geneva, and 175 missions to the WTO. The average size of professional staff in a UN mission is ten people, but with a wide range of one person to seventy people. Of the total staff in UN missions, 37 per cent identify as women. Remarkably, the average WTO mission – sometimes a subset of the larger UN mission – is six people, ranging from one to thirty people, and with 40 per cent identifying as women. This signals that there is similar attention, on average, given to trade representation in Geneva as there is to humanitarian affairs, human rights, health, labour and so on combined. It is worth recalling that discussions at the WTO also now cover the environment, gender, health and other topics. This is supported by the fact that in the case of 105 countries,Footnote ²¹ the mission carries out a double function – meaning that the head of the delegation leads both the mission to the UN and to the WTO.

Amongst others, the following conclusions can be drawn from the data presented in Table 7.1:

• – On average, the size of the WTO mission of a country is almost half the size of the UN mission. This illustrates the fact that Geneva, while being a regional UN headquarters and centre for many other discussions, is also seen as a global centre of multilateral trade negotiations;

• – Every two out of three missions in Geneva double as both mission to the UN and mission to the WTO, which implies that they do not concentrate solely on trade issues;

• – It is no surprise that the countries of the Organisation for Economic Development and Co-operation (OECD), developed countries, industrialized countries and high-income countries have larger UN and WTO missions than other subgroups of countries;

• – Women are present at a rate of under 50 per cent in both UN and WTO mission staff, but score over 30 per cent for almost all subgroups;

• – Women are present less frequently than men as heads of WTO delegations in the missions of industrialized countries, with low- and high-income countries having the lowest share;

• – Europe and North America have 50 per cent larger UN missions than the rest of the world, but the difference is much smaller for the WTO missions; Asia also has larger UN missions than average (18 per cent), and the largest trade missions (20 per cent larger).

• – Regarding women’s representation, Asia and Africa have on average fewer women present in the missions, but Latin America and the Caribbean and Asia have the lowest share (24 per cent) of women heads of WTO missions.

• – Irrespective of groupings, women are on average less present in WTO missions than men.

While we are only able to collect information on the Geneva diplomatic sphere and hence may not capture the gender make-up of the capital and regional counterparts of trade diplomacy, it is still telling that women from all regions are underrepresented in Geneva, which is the epicentre of the multilateral trading system. Altogether, these facts paint a very complex picture of Geneva diplomacy. There are currently 516 active RTAs,Footnote ²² with 17 RTAs notified to the WTO in the first half of 2021.Footnote ²³ At the same time, the WTO itself has a complex structure with at least thirty-three active committees, councils or working groups (aside from the dispute settlement processes). As Geneva is considered a capital of trade policy, it is useful to look at the sheer number of meetings facilitated by the WTO and the UN Conference on Trade and Development (UNCTAD), which on average can reach more than 1,000 per year, with a common occurrence of 4–5 meetings a day. In addition, there are bilateral meetings, lobbying and some cross-issue meetings in other organizations such as the ITC, the World Intellectual Property Organization (WIPO) and the International Telecommunications Union (ITU), and various other discussion fora on human rights, labour rights, some aspects of disarmament, intellectual property, health and others. As a mission is assumed to generally cover all topics in Geneva, or at least have an understanding of the ecosystem, mission staff are often faced with making hard choices on which issues and meetings to follow. Many smaller missions are not able to have dedicated personnel solely focused on trade issues.

The 37 per cent representation of women in WTO missions is a score that can seem relatively close to parity. However, one should be careful in interpreting this number as an indicator for gender inclusion in resulting trade policy. The gendered effects of trade are multifaceted and require not only a multitude of experts to account for, but also a vast network during the process of negotiation to get certain concessions or commitments through. However, the presence of women in trade negotiations is an improvement to the overall ‘masculinity’ of trade and negotiations and is a first step to creating a more gender-inclusive trade policy.

7.4 Trade Negotiations Need Networks

Trade negotiations are a complex process that rely on the ability of chief negotiators and their whole team to influence the other party and ensure win–win outcomes. A fundamental component of an effective negotiating strategy is the ability to connect to institutions and expertise in their own capitals.Footnote ²⁴

Quite often, negotiations are pictured as two or more parties sitting at different sides of the table having different interests. We see people sitting at the table signing papers next to each other on front pages of newspapers as a symbol of concluded trade negotiations. This image is misleading not only because people on these front pages are usually not the ones doing the negotiations, but it can also give an inaccurate message about the process of negotiation, and the diverging goals of the negotiating parties. The common goal of negotiating parties is to reach an agreement – this was confirmed by the Brexit process, where despite the diverging interests and various difficulties, the ‘no-deal’ scenario was avoided as it was apparent that no agreement was the least preferred scenario on either side of the table.Footnote ²⁵

Processes and people matter for successful negotiations. There are certainly some personal traits that can contribute to a more successful outcome at the negotiating table, such as persuasion, charisma, assertiveness and communication skills. Successful negotiators are quite often branded with such images as ‘punching above their weight’, ‘heavy hitters’ and ‘aggressive players’.Footnote ²⁶ These are viewed ‘traditionally’ as male skills and characteristics,Footnote ²⁷ as gendered power systems tend to assign such skills to ‘men’s jobs’, which require a generally higher level of power and fewer women tend to apply for them.Footnote ²⁸ One can argue that such a traditional, and frankly inaccurate, perception of negotiation as a ‘man’s job’ could be one reason for fewer women choosing such a career. After all, if one looks at gender stereotypes, one can also say that women tend to be more collaborative in their decision making.Footnote ²⁹ In addition, our interviews also show the anecdotal evidence that a higher presence of women at the negotiating table may lead to faster compromises and conclusion of the trade agreement.Footnote ³⁰

However, the biggest success factor of negotiations may lie outside of the negotiating room: the connection with the capital. As described above, the negotiation process has a double location – at the negotiating table and in the capital. Achieving the ultimate goal of negotiations (conclusion of a trade agreement where both sides gain more than they lose) requires receiving guidance and expertise from the capital, approving of texts and positions and requiring quick feedback and decisions. One can assume, in most of the cases, that this will require a number of inter-agency and inter-ministry consultations, verifications and active lobbying with the business community and civil society for certain concessions. Additionally, every step involves not only political consensus, but also certain administrative steps – be it sending a memo between different ministries or associations, or just registering incoming documents. To speed up the response from the capital and overcome or make more efficient these ‘red tape’ processes, personal connections and political aptness are key for negotiators.

Historically, diplomatic and political connections in any country were in the hands of men, and this can explain the relatively lower presence of women in trade (and the UN) missions today. Changing the gender make-up of a profession can take generations. Based on the collected data on missions in Geneva, it is not a surprise that the presence of women trade experts, diplomats and negotiators is higher in countries that score better on gender equality domestically. Active encouragement of women to pursue government-related careers could help bring more women to positions where they are engaged in the negotiation process. There is evidence that even when quotas for women were introduced, women have tended to fall out of government careersFootnote ³¹ – a phenomenon that is yet to be studied further. What could be the reasons for women not staying in the government positions, and can these reasons be curtailed in order to enhance women’s participation?

A first relevant factor is that trade negotiations take years. The greater the number of participating countries, the longer will be the negotiations. Overall, the trade negotiation process can be described in several steps:Footnote ³²

1. (1) Consultative process of negotiations;

2. (2) Development of country position and possible scenarios for the concessions;

3. (3) Negotiation of the process of negotiation: determination of the number of rounds, chapters to be negotiated, when and where;

4. (4) Actual process of negotiation: party-to-party interaction; and

5. (5) Formal conclusion: the official ‘signature’ moment, ratification in the executive body, official notification to the WTO and other trading partners.

While the beginning and end of the negotiations are set points in time, the intermediate steps can be repeated many times and span many years. These intermediary steps may never come to fruition – for example, in the case of the Transatlantic Trade and Investment Partnership (TTIP) – but if they do, the signature process is a huge political success.

Quite often during the process of multilateral and regional negotiations, the process is split into stages of active face-to-face negotiations in a predetermined location and time to lobby/gather feedback in the capital – requiring much travelling in between.Footnote ³³

Negotiations at the WTO are premised on consensus-building with the hitherto unused option of majority voting available.Footnote ³⁴ Finding a common position among 164 countries requires building alliances that are ever more nuanced and therefore require even larger networks. In the world where there are so many trade topics in many trade fora, countries are naturally drawn to build strategic alliances and partnerships, pooling resources and accessing information.

Just having women present in trade negotiations does not control for women as a population group having similar access to the benefits of trade agreements as men. Research shows that gains from trade liberalization are distributed unequally between men and women due to the systemic issues across different areas of human activity, including access to finance, skills, prohibitive laws and social norms.Footnote ³⁵ Expecting a woman negotiator to be an expert not only in her field of expertise, but also in all other fields that interact with gender, or being able to forecast the gendered impact of trade policy taking into account all these dimensions, is an unrealistic assumption. Of course, every woman negotiator brings her own experience and perspective as a woman to the table, but it does not substitute for gender inclusion in the process of negotiation.

A separate remark has to be made about the effect of the COVID-19 pandemic on trade negotiations. The overall move of negotiations to virtual/hybrid format and higher reliance of government officials on computer-enabled processes had the potential to improve the general speed of interaction and reaction of the capital. At the same time, it had an ambiguous effect on the ability of negotiators to build connection and trust during the negotiations.Footnote ³⁶ The pandemic definitely has opened the door to creating a more inclusive structure of trade negotiations, but it is yet to be understood how this can be successfully utilized to achieve the common goal of any trade negotiation – conclusion of trade agreements that benefit its addressees.

7.5 To Be a Negotiator Is a Career Choice, Trade Negotiations Are Not

While it is safe to assume that having sufficient women representatives in trade negotiations is a positive development for the negotiations themselves due to women’s higher propensity to achieve more collaborative interactions,Footnote ³⁷ tasking women negotiators to represent the whole multitude of ‘women’s interests’ in trade negotiations is misplaced. The larger question is how do we systemically ensure that ‘women’s interests’ can be reflected in trade negotiations?

Trade negotiations increasingly cover more and more topics, both in the WTO and at the regional level. Independent from the type of negotiation, the interviews have indicated that expertise in the negotiating party can be split into two fields – ‘generalist’ and ‘expert’ negotiators. The generalist negotiators are often responsible for the overall process of negotiation – exchange of positions, ensuring fulfilment of the procedural code, getting a response from the opposite party. Their key skills are institutional memory and diplomatic connections that they can use to try to get a better offer from the opposing party. The more experienced the generalists in trade negotiations, the more a country can ‘punch above its weight’ in trade negotiations.Footnote ³⁸ Where women are present in these roles, this mostly happens in countries where gender equality has been targeted internally for decades.

The ‘expert’ negotiator deals with the more technical side – the aspect that has been gaining in prominence – such as covering Technical Barriers to Trade (TBT), Sanitary and Phytosanitary Measures (SPS), climate change, rules of origin, environmental issues or other related issues. The complexity of these issues varies with the agreement and the countries, but it requires specialist knowledge given that the impact goes beyond the scope of diplomacy and to the heart of domestic policy development. One can think of the example of the trade facilitation negotiations where many of the experts were from customs and other border agencies and not necessarily from the foreign affairs or foreign trade office. The same can be seen in the fisheries subsidies negotiations where many large countries are able to be represented by officials and experts from the agriculture, fisheries or environmental ministries. Their involvement is dynamic, and often issue-specific.

This vast scope of specialists that are involved in trade negotiations serve as a bridge to the issues to which women are ‘traditionally’ assigned, as in many countries women’s segregation by profession is still present.Footnote ³⁹ So when women are present in trade negotiations, are they mostly assigned to ‘expert’ fields, or do they occupy more ‘generalist’ positions? Based on the authors’ experience, there is no clear-cut answer on that. Moreover, while women heading negotiations does indeed have the potential to lead to greater inclusion of some women’s interests in the absence of overall gender inclusion, having women specialized in certain topics can bring more tailored and specialized gender inclusion and is overall a stronger indicator of a more gender-equal society.

With the increasing complexity of issues covered by trade agreements – gender, environment, technology, IP, investment, human rights – one can be certain that there will be an increase of negotiating teams to include experts from those fields.Footnote ⁴⁰ The increasing technical charge of trade agreements and growing political tensions around trade will also increase the need to bridge between expert jargon and generalists’ political messaging.

Based on the information collected in the preparation of this chapter, it became obvious that there is no common structure in the order of engaging different types of negotiators. In some cases, both ‘generalists’ and ‘experts’ are present in the negotiating room; sometimes they take turns negotiating by chapters; sometimes generalists are well-prepared and can negotiate just checking in with experts; sometimes experts are placed in the capital, with generalists consulting with them constantly.

The expansion of trade negotiation teams is not universal – as with the size of trade missions in Geneva, some countries have limited diplomatic resources for trade policy and even less financial resources.Footnote ⁴¹ In many smaller countries, or ‘latecomers’ to trade negotiations, the ‘expert’ and ‘generalist’ is often the same person, and there is sometimes a need to rely on international experts for support, paradoxically often funded by their negotiating opponents. Organizations such as the South Centre, the Commonwealth Secretariat and the Advisory Center on WTO Law (ACWL) also provide legal, technical and analytical support to developing countries as part of their mandate.Footnote ⁴²

Some of these small countries and ‘latecomers’ may have a harder time catching up, facing the tension between being locked out from the integration processes and not having enough trade policy expertise at home to protect national interests. Interviews with small delegations have confirmed that such latecomers have greater difficulties crafting their own position and may quite often outsource the underlying trade analysis to experts in other countries or international institutions.

A separate remark has to be made about the importance of training of officials provided by international organizations. Training provided by the WTO, the UNCTAD, the ITC and other organizationsFootnote ⁴³ tend to be built on a best-practices approach, and therefore can provide a timely source of knowledge on the latest topics in trade, sometimes being the sole source of affordable expertise on such issues as gender and trade, trade and environment, or financing for trade for government officials.

7.6 Women’s Representation versus Women’s Inclusion in Trade Negotiations

The purpose of this chapter is not simply to discuss whether women are represented at trade negotiations – but also to highlight that women representation in trade negotiations does not guarantee that ‘women’s interests’ are included in the resulting negotiated text of a trade agreement. This puts trade negotiations into a wider context of achieving global gender equality.

Women’s representation is quite often a misleading proxy for including women’s interests. Therefore, when women’s representation is discussed, it is often intended to serve not as a role model of a particular career, but also as the channel to include women’s interests at large – to create gender inclusion in a trade agreement. It is important to recognize the difference between the two. While there are positive benefits of women’s representation on gender equality (see next section) in the negotiated trade agreement, it is not a sufficient element to ensure the gender inclusion of the negotiated outcome and that the interests of women are fully reflected. This can be ensured only when negotiation is gender-sensitive and/or gender is a part of the analysis in the process of negotiation.Footnote ⁴⁴

As we discussed, the negotiation itself is a highly technical process that involves many different types of expertise, including both professional negotiators and specialists in a particular field. Women’s representation in the trade negotiations therefore depends on encouraging women to take on these kinds of jobs and to ensure the environment is supportive of growing responsibility for these women. Access to skills and training, family-friendly policies for diplomats and negotiators and mentorship are all important elements to attract and maintain women’s representation in this career.

Can we assume that the inclusion of women in trade negotiations implies that gender equality is improving as a result of what is negotiated? Trade negotiations are a success when they result with the conclusion of a trade agreement. Trade agreements in turn contain not only preferential trade terms between countries, but also better regulatory frameworks, means to liberalize trade and improve development outcomes. Recent dataFootnote ⁴⁵ shows that trade agreements are hard to implement, and developing countries are lagging behind even on implementing existing agreements and using certain preferential rates. When we take into account the social complexity of addressing gender, regional trade agreements have the potential to both improve and worsen the situation of women if the unequal distribution of trade effects domestically are not controlled for.

There is evidence that trade agreements improve gender equality – but this is dependent on agreement-specific factors.Footnote ⁴⁶ This, along with the generally unequally distributed gains from trade liberalization, brings us to the conclusion that the biggest possible positive effect of a trade agreement on gender equality can be only achieved in its gender-inclusive implementation at home.

While the existing gender chapters do not have specific commitments or enforcement mechanisms,Footnote ⁴⁷ they signify a huge step forward in recognizing that to control for diverging impacts on men and women, trade agreements should not be assumed to be gender-neutral, but should be actively gender-inclusive.Footnote ⁴⁸ There is yet an unproven effect on gender equality of trade and gender chapters, and the high cultural sensitivity of gender issues makes it unlikely that such gender chapters can be included in all upcoming trade negotiations. Inability to have gender provisions or chapters does not automatically undermine the inclusion of issues of importance to women in trade agreements as there are other ways of incorporating them – such as adding gender as a dimension to be considered during the analysis of the potential effects of trade agreements at the negotiation stage.Footnote ⁴⁹

The existence of SDG 5 creates the sentiment and a set of indicators,Footnote ⁵⁰ but there is no recipe on how it should or can be implemented in each country. There is a lingering lack of gendered data – both in trade and globally. Collection and transparency about such data can be more problematic in some societies due to cultural sensitivity but it is often as a result of the appropriate systems not being in place to capture this important disaggregated data. This disaggregated data is not only essential to ensuring that trade agreements are gender-sensitive but gives governments the means to monitor and measure the consequent impact of the agreements on women.

There is a misleading sentiment that only women should be in charge of gender-inclusion issues. While it is undeniable that there is a positive effect of having greater women’s representation and women role models it is inaccurate to assume that a woman put into the lead negotiator position will automatically have the understanding of how to propose policies that are gender-inclusive on a large scale. This is why it is crucial that systemic changes are made at all stages of the trade negotiating cycle to infuse gender-sensitivity, gender-disaggregated data and gender training irrespective of which gender is leading the negotiations.

Given the uneven representation of women in negotiations and the general lack of gender mainstreaming, having women negotiators is better than having no women at all, but it does not automatically ensure greater inclusion of gender issues in trade policy.

7.7 Women’s Representation as a Tool for Gender Equality

Women have been notoriously absent in historyFootnote ⁵¹ and despite greater awareness and anxiety around issues of gender equality today, there is still a clear divide, with women not only earning less than men for the same job, but also having more limited access to basic human rights and suffering greater effects from economic and climate shocks.Footnote ⁵² Much of this disparity is not only dependent on socio-economic factors, but also connected to cultural and religious factors. This makes the global advancement of gender equality not only institutionally complex, but also highly charged politically. Although it is beyond the remit of this chapter, the situation is even more dire when elements such as race, ethnicity and socio-economic status are brought into the picture.

In such a globally unequal situation, women’s representation has not always been seen as an overall improvement, but rather as a ‘patch’ to the situation. There has even been a backlash, and scepticism regarding the competency of women placed in positions of power.Footnote ⁵³ Nevertheless, the overarching positive impact of greater representation of women, specifically in trade-related activities, cannot be ignored.

First of all, role models matter, especially for roles where there is a gender bias, and more so in developing countries.Footnote ⁵⁴ Having women negotiators sends a powerful signal of career possibilities (as discussed earlier, networks and influence are key components of a negotiator’s job).

Secondly, women overall have different sets of skills and perspectives – partially invigorated by systemic limitations and disadvantages – and can bring different dynamics and views to the process of negotiation. While this requires further research, the anecdotal evidence that the authors collected during the interviews proves that having a sufficient number of women negotiators changes the dynamics of the process – potentially making it less charged and more efficient.Footnote ⁵⁵

Thirdly, in the absence of the overall common understanding of the nexus of trade and gender, having women at the negotiation table – and involved in the negotiation process at large – provides a source of knowledge on these issues and their experiences. Women engaged as experts in the negotiations inevitably bring their gender-specific experience into policy analysis, assessing the impact of different negotiated concessions not only from the economic standpoint, but also through the gender lens. Women negotiators can also channel their knowledge into the negotiations, improving the gendered effect of negotiated policies.

All in all, while women’s representation may not be the perfect tool to address gender inequality, the key benefits outlined can turn trade negotiations into a tool for better gender equality. The more gender-informed and inclusive the process of trade negotiations, the higher are the chances of more gender-inclusive outcomes.

7.8 The Way Forward

While there may have been progress, there is no doubt that improvements are needed to enhance the presence and impact of women in current trade negotiations, However, the system can also be systematically inclusive if, along with gender awareness, the appropriate incentives are provided for women to pursue diplomatic careers in trade and government positions overall.

Women’s representation has a positive effect on trade negotiations in terms of both the negotiation process and the substance of negotiations. The complexity of modern trade negotiations requires experts from a variety of fields, and to secure women’s representation overall it needs to be improved throughout various fields. Women can be encouraged to pursue diplomatic careers, and gender disparities (both vertical and horizontal) in other areas of government careers should be addressed – for example, through gender strategies.

But while women’s representation at trade negotiations should not be a goal in itself, the inclusion of women’s interests should be. A woman negotiator brings her soft and hard skills and her experiences, including her gender-specific experiences, into the negotiation process – this can improve both the process and outcome of the negotiation. However, it is a flawed logic that a woman placed at the negotiation table should be in charge of representing the interests of all women in the country. Trade touches a variety of fields of expertise and therefore has a multidimensional intersection with gender issues that are specific to each field. Representing the interests of all women in the country is only possible when these interests are included in the analysis of how the negotiated outcomes impact women who are active in these fields. This can only be done when using appropriate tools and when gender equality is mainstreamed throughout the overall priorities and policies of the country.

Therefore, gender aspects should be included in the analysis of policy proposals during the stage of trade negotiations. This analysis can result in subsequent creation of specific chapters or provisions, or just serve as the background papers that inform the more traditional trade concessions that will have a more positive (or rather, less negative) impact on women.

Geneva remains a centre of international trade law and policy making, but there is an uneven capacity in diplomatic missions to serve all the ongoing negotiations, with much higher pressure on staff from developing and small countries. In such circumstances, countries have to prioritize among different topics that are being negotiated, and gender often is not given top priority, overshadowed by such issues as climate change, carbon offsetting, health, security and others – all issues which have a very clear gender dimension as well.

The persistent lack of data about the gendered effects of trade policy can be addressed at the multilateral level through the Trade Policy Review mechanism of the WTOFootnote ⁵⁶ and through data collection initiatives such as ITC’s SheTrades Outlook.Footnote ⁵⁷ Including on a systematic basis a gender component in the WTO’s trade policy reviews of countries will not only provide more information about the current state of play and practices, but will also educate the countries to pay attention to these issues.

We need to realize that gender inclusion is not the sole responsibility of women, but of all genders. There is no doubt that the presence of women trade negotiators improves the speed and overall structure of how trade negotiations are conducted. But charging women trade negotiators to represent women’s interests for the whole economy is as much a retrograde step as having no women involved in trade negotiations. Prioritizing women’s interests in trade negotiations is important. Bringing more women to the negotiating table is important. We have to be able to do both at the same time, but it has to be the responsibility of everyone.

8.1 Introduction

Because I am a woman, I am at a greater risk of being seriously injured or killed if I am involved in a car accident.Footnote ¹ Because I am a woman, my personal protective equipment (PPE) does not protect me as well as it protects my husband, brother, father, or son.Footnote ² Because I am a woman, voice-recognition software has difficulty understanding me.Footnote ³

These are just a few of the consequences women face because they live in a world built for men. Women are consistently and persistently underrepresented in the data that is used to design and engineer our world,Footnote ⁴ and this includes the development of standards for crash test dummies, personal protective equipment, and artificial intelligence, among other things. This results in inequitable outcomes for women relative to men.

The persistence of gender gaps in all aspects of society indicates that the following does bear repeating:

Consequently, closing all forms of gender gaps, including the gender gap in standardization, needs to be a priority. The United Nations Economic Commission for Europe (UNECE) Working Party on Regulatory Cooperation and Standardization Policies (WP.6) has been a leader in bringing attention to the gender gap in standardization and taking action to address it. In 2016, members approved the development of a ‘roadmap and recommendation on mainstreaming gender into standards and regulatory policies at national and international levels’.Footnote ⁶ Subsequently, the Gender Responsive Standards Initiative began with the acknowledgement that:

In 2018, the UNECE Declaration for Gender Responsive Standards and Standards Development was approved.Footnote ⁸ The Declaration is significant because it was the first initiative that targeted standards development organizations and national standards bodies, providing them with tangible and concrete actions that they can undertake to address the gender gap. The Declaration has been an effective catalyst for getting gender on the agenda of national standards bodies and raising awareness amongst standards organizations of the importance of considering gender in standardization. The Declaration was open for signature in May 2019 during an international signing event and as of February 2023, there were eighty-one signatories who committed to take action to address the gender gap in standards development.

The gender gap in standardization has widespread consequences, as it can introduce biases wherever those standards are applied. As such, the usage of standards in Free Trade Agreements (FTAs) and trade policies can exacerbate inequitable outcomes for men and women. In effect, the absence of gender-responsive standards has resulted in the proliferation of goods that are not designed to keep women as safe as men. Trade policy can be leveraged as an effective tool to improve gender-responsiveness in standardization and advance women’s economic empowerment.

To understand the relationship between gender, standardization, and trade policy, Section 8.2 will begin by providing an overview of the role of standardization in trade agreements. Next, Section 8.3 will elaborate on the gender gap in standardization and why it is dangerous. Finally, Section 8.4 will discuss how addressing the gender gap in standardization can lead to more inclusive trade. Section 8.5 concludes.

8.2 Standards in Trade Agreements

While FTAs help to foster the movement of goods and services across borders, the chapters on standards, technical regulations, and conformity assessment procedures are a vital, though perhaps less well-understood, part of trade agreements. In FTAs, obligations on standards and conformity assessment are found in Technical Barriers to Trade (TBT) chapters. To varying degrees, these chapters incorporate or reference portions of the World Trade Organization (WTO) TBT Agreement.Footnote ⁹ According to the Government of New Zealand, TBT chapters ‘aim to reduce the impact of TBTs on global trade and create a fair, facilitative and sustainable trading environment’.Footnote ¹⁰ These chapters focus on the structures and practices that reinforce the transparency and openness of the systems that underpin the development, adoption, and use of standards, technical regulations, and conformity assessment, to ultimately improve the predictability of global markets and reduce the occurrence of technical requirements causing unnecessary barriers to trade.

FTAs have been a powerful tool to reduce tariffs to support the flow of goods and services between countries. However, as tariffs have reduced, there has been an increased focus on non-tariff measures (NTMs) and their impact on free trade. The Economic and Social Commission for Asia and the Pacific and the UN Conference on Trade and Development (UNCTAD) have estimated that NTMs cost twice as much as ordinary customs tariffs.Footnote ¹¹ Research from the US government has shown that up to 93 per cent of global trade is impacted by technical regulations, which can include standards.Footnote ¹² Given the impact that NTMs can have on trade, it is not surprising that increasingly progressive trade agreements are bolstering their technical barriers to trade chapters. For example, the Canada–European Union Comprehensive and Economic Trade AgreementFootnote ¹³ (CETA) includes a unique Protocol on the mutual acceptance of the results of conformity assessment,Footnote ¹⁴ which is far more ambitious in reducing NTMs than any other FTA Canada currently has in place. The Protocol attempts to deal with the long-standing issue of in-country conformity assessment requirements by allowing Canadian manufacturers to have their products certified to the EU requirements in Canada, and vice versa.

8.3 The Gender Gap in Standardization

Standards are powerful tools because they dictate the design, performance, and functionality of a good or a service. Therefore, the expertise of those who develop standards matters, as standards are shaped by the knowledge and experience of those who develop them. While there are often requirements for committees to ensure balanced representation of stakeholder categories, little consideration has historically been given to the personal attributes (e.g., gender) of those who develop standards. The result is that women are significantly underrepresented in standards development. At the International Organization for Standardization (ISO), only about one-third of technical committee members were women in 2020.Footnote ³⁵ While you do not need to be a woman to develop a gender-responsive standard, it can be difficult to come up with solutions to problems you have not faced.

The preponderance of men, both historically and currently, participating in the development of standards does not help with androcentrism in standardization. Androcentrism is the tendency to view men as ‘representative’ or ‘default’ and women as ‘niche’.Footnote ³⁶ Androcentrism privileges men’s experiences. It also results in research based solely on men being overgeneralized and applied to both men and women.Footnote ³⁷ This has had unfortunate consequences. In medical research, medications have been withdrawn from the market because they were not adequately tested on women and, in fact, had serious side effects for women.Footnote ³⁸

The low representation of women in standardization compounds the lack of awareness of the importance of considering gender in standardization. When ISO and IEC surveyed the leadership of their technical committees in 2020 to identify what actions were taken by the committees to consider gender, only 25 per cent of committees said they considered gender in the work of their technical committee.Footnote ³⁹ While a quarter of responding technical committees had considered gender, only 13 per cent indicated that sex-specific requirements were included in their standards.Footnote ⁴⁰ In other words, the vast majority of ISO and IEC technical committees do not consider gender when developing standards. Among technical committees that did not consider gender, almost 80 per cent said that gender is not relevant to their sector.Footnote ⁴¹ The perception that standards are gender-neutral, or gender-blind, is both pervasive and insidious – and can have real consequences.

The fact that standards are often applied to inanimate objects, such as technologies, feeds the narrative that they are (gender) neutral in application. However, when inanimate objects are created and shaped by people, they can perpetuate biases. Artificial intelligence (AI) is a prime example of how technologies can be imbued with bias. It is now widely recognized that AI has perpetuated existing biases in hiring, credit limits, and health-care prioritization, to name a few areas.Footnote ⁴² Gender bias can also be seen with physical products. For products that require a specific fit (e.g., PPE and dimensions for operator space envelopes), or require physical manipulation, do they take into account the differing size and strength of men and women? As evidenced by the survey of ISO and IEC technical committee members, there is still a significant gender gap in standardization.

8.4 Addressing the Gender Gap in Standardization for More Inclusive Trade

Gender-responsive standards are essential for inclusive trade. As we have noted, currently, standards are not doing enough to protect and support women. This means that when goods and services that rely on standards are traded, they are perpetuating inequality. By ensuring that standards, including those referenced in regulation, have addressed their gender gap, we can advance equality and improve outcomes for women.

While all standards would benefit from a gender lens to ensure that products that are not as safe for women are not inadvertently proliferated, targeted standards can also be a useful tool to promote gender equality in trade. In March 2021, ISO published an International Workshop Agreement (IWA) on Women’s Entrepreneurship – Key Definitions and General Criteria.Footnote ⁵⁸ By developing an accepted definition of women-owned and -led businesses, the IWA has enabled governments, businesses, statistical agencies, and non-government organizations to clearly track progress and have targeted initiatives to advance economic opportunities for women.Footnote ⁵⁹

In Canada, a publicly available specification was developed in support of the Government of Canada’s 50–30 Challenge. The 50–30 Challenge aims to increase representation of women and underrepresented groups in senior management and on Canadian boards.Footnote ⁶⁰ As the name states, the government is challenging companies to achieve gender parity in senior management and on Canadian boards and to ensure that underrepresented individuals comprise 30 per cent of senior management and members of Canadian boards. The publicly available specification defines how to determine whether the targets have been met.Footnote ⁶¹ Measurement is imperative to track progress and target initiatives to meet the objectives of the challenge.

The WTO can also play an important role in addressing the gender gap in standardization. The WTO is one of the only places where standards and technical regulations are disciplined. As such, it has an opportunity and obligation to ensure that standards and technical regulations are used to promote equity and advance economic opportunities for women. In fact, a report from the WTO delineated the ways in which trade can promote gender equality, stating:

The Government of Canada has explicitly stated that it participates in trade negotiations and agreements because ‘it is in the Canadian interest to do so’.Footnote ⁶³ Undoubtedly, Canada is not unique in this. International trade accrues many benefits for countries and their citizens. And yet, as we have highlighted, more needs to be done so that everyone is benefited equally.

8.5 Conclusion

This chapter argues that by addressing the gender gap in standardization and ensuring that the standards included in technical regulations are gender-responsive, we will increase the safety of products for women and contribute to women’s economic empowerment. By requiring gender-responsiveness in standards and trade agreements, countries can make meaningful progress towards addressing discriminatory social institutions and improving gender equality, which will benefit everyone.

9.1 Introduction

The impacts that foreign direct investment (FDI) can have on gender issues are increasingly drawing the attention of policymakers and are gradually occupying more space in the decision-making processes of companies. As we are going to demonstrate in this chapter, particularly when investing in developing countries – such as the ones in Latin America and the Caribbean (LAC) – the lack of meaningful gender policies by multinational enterprises that guarantee participation by women may lead the MNEs to miss out on the tremendous impact they could have on gender equality.Footnote ¹

Gender mainstreaming is defined as ‘the process of assessing the implications for women and men of any planned action, including legislation, policies or programmes, in all areas and at all levels’.Footnote ² Gender provisions can be found in regional trade agreements as far back as 1957, and their inclusion has steadily increased over the years.Footnote ³ Governments seeking to foster equality between men and women can also include gender considerations and concerns in the drafting and implementation of investment agreements. Similarly, corporations can include gender perspectives in the design, implementation, and assessment of their policies and programmes to ensure that they benefit men and women equally.

The World Economic Forum’s (WEF) Global Gender Gap Report 2021 predicts that it will take another 136 years to achieve gender equality based on the current rate of progress.Footnote ⁴ The estimate is more pessimistic than the one cited in the 2019 report,Footnote ⁵ mainly due to the disproportionate effect the COVID-19 pandemic crisis has had on women. However, the timeline is substantially smaller for the Americas, where it is estimated that gender gaps could be closed in 60–70 years. North America comes in second to Europe with regard to progress towards gender parity, followed by Latin America and the Caribbean coming in at third place. This gives multinational enterprises in the region an opportunity to contribute to the local economy and society in general, by implementing policies that advance gender equality.

This chapter unfolds as follows. In Section 9.2, we demonstrate why women are levers of change and the opportunities MNEs have in promoting women’s empowerment within their organizations and the communities where they operate. Then, in Section 9.3, we discuss the urgency of gender provisions in investment agreements in light of the evolution observed in recent years, particularly in bilateral investment treaties (BITs). Finally, in Section 9.4, we address forms in which FDI can be the driver of necessary changes, and how public, private, domestic, and international investment policies are of fundamental importance to further women’s economic empowerment. Section 9.5 concludes.

9.2 Women as Levers of Change: The Opportunity for MNEs

Gender equality is a crucial factor for economic development.Footnote ⁶ It can contribute to poverty reduction and higher levels of human capital for future generations.Footnote ⁷ Companies with gender diversity in emerging markets had a 13 per cent rise in their internal rate of return.Footnote ⁸

9.3 Emergence of Gender Provisions in Investment Agreements

FDI is a main feature of economic globalization, and it indicates long-term commitment and economic ties, with different levels of impact on the social, economic, cultural, and gender structures of the region receiving the investment. FDI is, for the most part, regulated by international investment treaties (IIAs) signed between governments – the government of the country receiving the investment and the government of the home of the investor.

IIAs are categorized in two types: (i) bilateral investment treaties and (ii) treaties with investment provisions. A BIT is an agreement between two countries regarding the promotion and protection of investments made by parties from the respective countries in each other’s territory. They are international agreements establishing the terms and conditions for private investment by natural and legal persons of one state in another state. The great majority of IIAs are BITs,Footnote ⁸⁷ and this section will focus on those, and in particular on model BITs proposed by governments, as those are the types of international investment agreements where relevant gender provisions are currently being developed.

There are clear linkages through which trade and investment policies and agreements can affect gender dynamics. Negotiators of international trade agreements have progressively included the discussions on gender provisions or gender chapters in free trade agreements (FTAs). Both individual provisions and chapters mostly cover issues ranging from cooperation activities to institutional arrangements, including the establishment of a trade and gender committee and consultation procedures. Other gender-related provisions can be found spread throughout the text of an FTA – in the preamble, in chapters on labour, on investment, on cooperation, on sustainable development, or on small and medium-sized enterprises (SMEs).Footnote ⁸⁸ Although mostly welcome and in continuous development, so far the commitments that address gender through those instruments are mostly aspirational. It is worth noting that a few FTAs contain binding and enforceable gender-related provisions, with the US–Mexico–Canada agreement (USMCA) being the most recent one, notably in Chapter 23 – Labor.Footnote ⁸⁹

On the other hand, in the realm of international investment agreements, very few model BITs currently include gender provisions. Even when they do, these provisions do not impose binding obligations on corporations. Out of eighty-four model agreements published online by the United Nations Conference on Trade and Development’s (UNCTAD) Investment Policy Hub,Footnote ⁹⁰ only seven explicitly address gender, albeit through broad provisions that refer to ‘fair and equitable treatment’ between men and women.Footnote ⁹¹

Among the few examples of countries that have submitted model BITs containing gender provisions are the Netherlands (model revised in 2019)Footnote ⁹² and Canada (model revised in 2021).Footnote ⁹³ Amid the interesting changes introduced by the Netherlands, the 2019 model agreement includes a commitment to promote equal opportunities and participation for women and men in the economy. The preamble recognizes the importance of gender equality in international trade and investment policies, and Article 6, paragraph 3 of the model agreement underscores ‘the importance of incorporating a gender perspective into the promotion of inclusive economic growth’ and that ‘Contracting Parties commit to promote equal opportunities and participation for women and men in the economy’.

More recently, in May 2021, the Government of Canada introduced its model BIT with several provisions addressing gender issues. Among the main changes included in this model, Canada highlights provisions on gender equality, including ‘a number of new provisions that aim to help women and other groups benefit more from the agreements, and to ensure that investment protections do not impede policies promoting gender equality’.Footnote ⁹⁴ Special attention in that regard should be paid to Article 3 (Right to Regulate), Article 8 (Minimum Standard of Treatment), and Article 16 (Responsible Business Conduct).

The Dutch and the Canadian model BITs are relevant because they set the scene for a new generation of IIAs, as they highlight the importance of incorporating a gender perspective in the promotion of inclusive growth and equal opportunities between men and women. Previously, when investment agreements mentioned gender, they mostly focused on gender equality in arbitral dispute resolution and the gender division among arbitrators. This seems to be changing in light of the recent model BITs, but the impact of investment treaties and foreign direct investment on gender equality are notions that need to have more concrete ground in international investment treaties.

It is worth noting that having gender provisions in government model BITs is not a precondition for signatories to include gender provisions in the BITs they negotiate and sign. In fact, a quick overview in the most recently signed BITs in forceFootnote ⁹⁵ shows that there is little correlation between countries that addressed gender in their model BITs and countries that signed BITs addressing gender. For example, whereas Brazil stood out as one of the few countries whose recent model investment agreement did not address gender, the government addresses the issue in most of its recently signed investment cooperation and facilitation treaties.Footnote ⁹⁶ Conversely, whereas Morocco’s 2019 model BITFootnote ⁹⁷ addressed gender, its most recent BIT – signed with Japan in August 2020Footnote ⁹⁸ – does not.

9.4 FDI Can Be the Driver of Necessary Changes

The private sector can have a very active role in promoting gender equality, and investment policies by MNEs can be conducive to creating more employment opportunities for women.Footnote ⁹⁹ FDI inflows can lead to more opportunities for women in the job market but may also exacerbate disparities. In fact, according to Blanton and Blanton, ‘traditional arguments about the linkages between socio-political factors and FDI – particularly in developing countries – anticipate an inverse relationship between the rights and welfare of women and foreign investment’.Footnote ¹⁰⁰

FDI can be the driver of necessary changes and although it would be natural to believe that a rise of trade and investment in the economy would lead to more opportunities for women, studies consistently show that trade and investment policies are not gender-neutral. While the current trade and investment paradigms are supposed to increase growth, decrease inequalities and promote employment, evidence shows (especially in developing countries such as those in Latin America and the Caribbean) that a more globalized economy and a boost of foreign direct investment by MNEs may increase inequalities, ‘especially across sectors, income, gender and social groups’.Footnote ¹⁰¹

When planning and implementing investments in a foreign country, MNEs can set the tone and go beyond the gender provisions where they exist in domestic legislation and IIAs. In fact, corporations’ gender policies have in many ways led the efforts to raise awareness around the inequality with which women are treated in the workforce in all regions of the world.

9.5 Concluding Remarks

The future of the international economic order is contingent on the ability of governments and the private sector to distribute the benefits of economic growth equally to all.Footnote ¹¹⁶ Maximizing the benefits for women in terms of FDI by MNEs requires action from both the public and private sectors, at the national and the international levels. The mere existence of gender provisions (and maybe chapters) in IIAs does not guarantee that gender concerns will be implemented and enforced at the firm level, the policy level or through domestic legislation.

Public, private, domestic, and international investment policies are of fundamental importance to further women’s economic empowerment, creating opportunities for employment, entrepreneurship, and inclusive growth. Domestically, legal reform and enforcement of gender policies by local governments in the countries where an MNE operates is crucial. As discussed previously in scholarship,Footnote ¹¹⁷ legal frameworks around the world have vastly improved in terms of the rights granted to women, but there is still much room for growth. Research shows that focused domestic legal reform leads to smaller gender gaps and higher investments, together with societal and economic benefits.

MNEs in the private sector have been leading this change around the globe in many respects. With gender policies focused on the composition of boards, for example, corporations have been changing the decision-making landscape for the past years. However, especially when talking about foreign investments in different countries, many initiatives are still needed in the private sector to create an enabling environment for women as well as opportunities to attract, train, retain, and promote women.