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Key issues in the text of the Trans-Pacific Partnership Agreement


The following statement was recently released by the Australian Free Trade and Investment Network (AFTINET):

Devil in the detail of TPP text, strong campaign needed in 2016

The TPP Trade Ministers’ announcement of agreement on the TPP on October 6, without release of the text, meant governments could put a positive spin before the text was released. But there has also been much critical media commentary.

The TPP text of 30 chapters and some thousands of pages was released on November 5. AFTINET’s team of experts were quoted very widely in the media, especially on medicines and ISDS. We have produced plain language summaries and analysis which are on our website. Although some of the worst proposals in leaked documents have been removed, there are many devils in the detail. The TPP still extends monopoly rights for corporations at the expense of people’s rights, and, despite promises, does not provide effective enforceable environmental standards or labour rights. Key issues in the text are:

Ch 9: Foreign investor rights to sue governments over domestic laws

  1. Public health campaigning has resulted in a specific TPP clause to exclude future tobacco regulation from ISDS cases (Ch 29, Article 29.5).This is a victory and should prevent future cases like the still ongoing Philip Morris tobacco company case against our plain packaging law.
  2. The need for the specific exclusion of tobacco regulation shows that the general “safeguards” for other public interest laws are weak, similar to clauses in other recent agreements, and will not prevent corporations from bringing cases (Annex 9-B 3b & 9.15).
  3. “Safeguards” in the definition of “fair and equitable treatment” for investors (Article 9.9.6) are still open to wide interpretation by tribunals, as shown by the recent Bilcon v Canada case.
  4. Procedural improvements (Article 9.21.6 & 9.23) do not address the fundamental flaws that ISDS tribunals have no independent judiciary and no precedents or appeals.

CH 18: Stronger monopoly rights for pharmaceutical corporations, and medicine price rises.

Pharmaceutical companies already have 20 years of patent monopoly and higher prices on new medicines before cheaper versions become available.

Public health campaigning removed some of the most extreme proposals, but for many countries, the TPP will strengthen patent rights and provide additional monopoly rights for the costly biologic medicines used to treat cancer and other serious diseases. Australian health experts and Doctors without Borders (MSF) say the TPP will restrict and delay access to lower-priced medicines for millions of people, especially in developing countries.

Australian law on biologic monopolies will not change immediately, but the text is ambiguous, referring to “other measures” which would “deliver a comparable market outcome,” and to a future review which could result in up to three extra years of monopoly (Article 18.52).

Each year of delay in the availability of cheaper biologic medicines would cost the Australian government hundreds of millions of dollars, creating pressure for higher consumer prices.

Ch 20: Environment Chapter — principles not legally binding

  1. Only mentions four out of promised seven International agreements, and only one is enforceable (trade in endangered species)
  2. Does not refer to climate change, only to voluntary measures for lower emissions
  3. Contrast with strong legal rights of foreign investors to sue governments.

Ch 19: Labour Chapter — weak on implementation .

  1. Must prove “sustained or occurring violations” of labour rights in a manner “affecting trade or investment”: does not cover non-traded sectors.
  2. Products of forced labour not banned, instead “recognise goal” of elimination.
  3. Lengthy complaint process has not resulted in effective action in similar chapters in other agreements.

Ch 12: Temporary movement of people

Officials have confirmed that this chapter removes the requirement for labour market testing for temporary contractual service workers from Brunei, Canada, Mexico, Malaysia and Vietnam.

Debating the TPP text and making politicians accountable in 2016

AFTINET presented its preliminary analysis of the text at our public forum at New South Wales Parliament House on Nov 18, and also spoke at a public forum on Nov 18 at Parliament House in Canberra, organized by the cross- party Parliamentary TPP group and attended by 50 members of parliament and their staff.

The AFTINET campaign will take off again in late January. TPP Trade Ministers are likely to hold a signing ceremony in New Zealand on February 4, and the text is likely to be tabled in the Australian parliament in the first week of February.

There will be Parliamentary inquiries over February and March before Parliament votes on the implementing legislation. AFTINET is seeking your support for public events, social media releases, and actions aimed at making politicians more accountable.

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