TPP Text Is Out, Finally, With Lots Of Bilateral Specialities

Four weeks after the finalisation of the agreement, the final text of the Trans-Pacific Partnership (TPP) was finally released by the United States and other partners of the first of the regional mega-trade deals. The parties hurried to underline the success of the negotiations, but early reactions were deeply divided.

The text of the agreement is available here.

The agreement was negotiated in secret over more than half a decade and brings together the US, Japan, Canada, Australia, New Zealand, Mexico, Peru, Singapore, Vietnam, Malaysia, and Brunei. The final text has 30 chapters plus annexes.

The Office of the US Trade Representative (USTR), which now must seek congressional approval for the deal, in its 5 November press release described the TPP as a “high standard agreement which supports more well-paying American jobs, strengthens our middle class, and advances both our interests and our values abroad.”

In a statement released by his office, USTR Michael Froman called the TPP “the first trade agreement to put disciplines on state-owned enterprises to make sure that when they compete against our private firms, there’s a level playing field.”

Also, he said, it is the first agreement that takes on the digital economy, ensuring that individuals and businesses in America and around the world would “benefit from the expanding opportunities offered by a free and open Internet.”

The massive treaty includes special chapters on the Telecommunication (13), E-commerce (14), Cross-Border Trade in Services (10) and Copyright (18) as well as 13 special annexes for bilateral copyright treatments, plus four for the e-commerce chapter.

Initial Response from Capitol Hill: Shedding Light, Confirming Fears

Quick reactions from members of Congress included a comment from new House Speaker Paul Ryan (R-Wisconsin), who underlined that enactment of TPP is “going to require the administration to fully explain the benefits of this agreement and what it will mean for American families.” Added Ryan: “I continue to reserve judgement on the path ahead.”

House Ways & Means Committee Ranking Member Sander Levin (D-Michigan) had announced the day before the text was released that the committee’s Democratic members would host a series of in-depth hearings on the key issues in the TPP, “zeroing in on those issues that are of particular importance or concern to us and our fellow Democratic colleagues.”

After the release of the text today a 90-day period kicks in during which the merits of TPP as negotiated will be debated, “as well as the necessity for any modifications to the agreement, before the agreement is signed,” Levin said.

Representative Mark Pocan (D-Wisconsin) said the release of the TPP text “confirms our fears about how bad this trade deal will be for American workers. This deal, which encompasses 40 percent of the global economy, will send more American jobs overseas and lower wages. Our workers will now have to directly compete with workers making pocket change in countries like Vietnam.”

“We should not be surprised that a trade deal negotiated in secret by 600 corporate advisors gives huge sweetheart deals to multinational corporations while producing disastrous results for the middle class,” he said.

“Not only would this deal ship jobs overseas, destroying our communities and local economies in the process, but the deal will also have a widespread effect on issues ranging from drug prices to environmental protections to food safety,” said Pocan. “It will also almost double the number of corporations with access to special non-judicial courts to challenge state and local laws. In the end the TPP was worse than we thought it would be.”

Mixed Reactions: Public Interest Concern, Corporates Content

In a first reaction after the initial release of the text by New Zealand, NGO Knowledge Ecology International (KEI) questioned several IPR provisions in the text. “Despite assurances to the contrary” IP is covered in the much-debated investor-state dispute settlement (ISDS) mechanism, it said. “The inclusion of intellectual property as a covered asset in the TPP investment chapter is potentially more consequential than anything in the TPP IP Chapter itself,” wrote KEI.

KEI also discovered language (Art. 14.17) in the text that it said prevents forcing software code to be open. In addition, KEI said the text has a provision (8C) on registration of drugs that bans requirements to disclose or consider certain financial or pricing data.

TPP negotiators caved in to pressure from the tobacco industry and threatens public health, the Center for Policy Analysis on Trade and Health (CPATH) said in an analysis.

Médecins Sans Frontières (MSF, Doctors Without Borders) said in a statement that it “remains extremely concerned about the inclusion of dangerous provisions that would dismantle public health safeguards enshrined in international law and restrict access to price-lowering generic medicines for millions of people.”

Judit Rius Sanjuan, US manager and legal policy advisor for MSF’s Access Campaign, said: “MSF remains gravely concerned about the effects that the Trans-Pacific Partnership trade deal will have on access to affordable medicines for millions of people, if it is enacted. Today’s official release of the agreed TPP text confirms that the deal will further delay price-lowering generic competition by extending and strengthening monopoly market protections for pharmaceutical companies.

For example, she said, “if enacted, the TPP will not allow national regulatory authorities to use existing data that demonstrates a biological product’s safety and efficacy to authorize the sale of competitor products, even in the absence of patents.”

“The TPP would also force governments to extend existing patent monopolies beyond current 20-year terms at the request of pharmaceutical companies, and to redefine what type of medicine deserves a patent, including mandating the granting of new patents for modifications of existing medicines,” said Rius.

The provisions in the TPP text “will not only raise the price of medicines and cause unnecessary suffering, but they also represent a complete departure from the US government’s previous commitments to global health, including safeguards included in the U.S.’s 2007 ‘New Trade Policy,’” she said.

The Foundation for a Free Information Infrastructure (FFII) issued a statement of strong concern, in particular about the investment provisions in the agreement.

“TPP’s investment chapter, which includes investor-to-state dispute settlement, contains – perverse incentives, – unfair procedural advantages for the US, – a most favoured nation (MFN) loophole, – limited, broken safeguards regarding intellectual property (IP) rights.”

“Investor-to-state dispute settlement (ISDS) places investment tribunals above states, above democracies,” the group continued. “This places the development of law beyond democratic scrutiny. On a national level, parliaments can change laws that do not work out well. This is not possible on the supranational level. The transfer of power is definitive: it is practically impossible to withdraw from (deep integration) trade agreements.”

Meanwhile, the “Big Content” industry were pleased with the outcome. Motion Picture Association of America (MPAA) Chairman Chris Dodd said in a statement:

“We welcome the release of the TPP agreement. Enacting a high-standard TPP with strong copyright protections is an economic priority for the American motion picture and television industry, which registered nearly $16 billion in exports in 2013 and supports nearly two million jobs throughout all fifty states. The TPP reaffirms what we have long understood – that strengthening copyright is integral to America’s creative community and to facilitating legitimate international commerce. Once again, we’d like to thank Ambassador Froman, the USTR team, and the broader interagency for their tireless hard work throughout this entire process. We look forward to working with USTR and the other TPP parties to ensure rigorous implementation of this important agreement.”

[Update:] Puentes, the Spanish-language publication from the International Centre for Trade and Sustainable Development (ICTSD), published an analysis of the TPP, available here [pdf].

[Update 2:] Public Citizen and the Canadian Internet Policy & Public Interest Clinic (CIPPIC) at the University of Ottawa Faculty of Law published an analysis [pdf] of the e-commerce chapter of the TPP.

And Kim Weatherall of Sydney Law School produced a section-by-section analysis of General provisions, trade mark, GI, industrial designs here; and copyright here.

Froman Warns Against Potential Delay

USTR Froman urged quick action on the agreement: “Other countries, such as China, are already moving forward with deals that don’t reflect our interests and our values. Failure to pass TPP would come at a high price here at home: jobs lost, wages cut, and opportunity squandered.”

Outlook from Japan

On the other side of the Pacific, Japanese media stressed favourite points from their negotiators and also the idea that more still was on the table. According to the English-language paper Japan Times, Tokyo still wanted to shorten the period after which the US would remove its 2.5 percent duty on Japanese vehicles below the now fixed 25 years. Other potential changes could result from “reviews within 3 years of entry into force (of the agreement) and at least every 5 years thereafter” allowing to “consider any proposal to amend or modify.”

Japanese Economist Junji Nakagawa of the University of Tokyo said he did not expect a hold-up in the Japanese Diet, which also has to pass the agreement once it has been signed by the parties. The finalised TPP would put pressure on the European Unioin and China respectively who are both also in negotiations for big regional free trade agreement, he said in an interview. The full interview will be published soon on IP-Watch.