The Proposed Comprehensive and Progressive Agreement on the Trans-Pacific Partnership: A Submission to the Joint Standing Committee on Treaties

Executive Summary This submission reconsiders the Trans-Pacific Partnership in light of the departure of the United States from the negotiations under the Trump Administration. This submission considers further amendments, revisions, suspensions, and side-letters which have been made as part of the ‘Comprehensive and Progressive Trans-Pacific Partnership’ – better known as the Trans-Pacific Partnership-11. The footprint of the agreement has been significantly diminished with the absence of the United States. The potential market benefits of the Trans-Pacific Partnership-11 have been accordingly reduced. Likewise, the ability of United States-based companies to deploy certain measures – like investor-state dispute settlement – will be hampered. This submission focuses upon the relationship between intellectual property, investment, and trade under the Trans-Pacific Partnership-11. In particular, it examines copyright law, electronic commerce, and the digital economy; trade mark law; tobacco control; patent law, biologics, and access to medicines; trade secrets; agriculture; the environment; Indigenous rights; and investor-state dispute settlement. This submission is based upon research in respect of intellectual property and trade – particularly focusing on the Trans-Pacific Partnership. This submission highlights that there remain a number of significant issues and problems with the Trans-Pacific Partnership-11, notwithstanding the suspensions and side-letters. In particular, there remains major ambiguity about the status of suspended provisions in the Intellectual Property Chapter, and whether they could be revived at a future date. Moreover, the Investment Chapter – with the investor-state dispute settlement mechanism – remains the subject of controversy. There is also concern that the Trans-Pacific Partnership-11 is neither progressive or comprehensive when it comes to regulatory issues such as public health, the protection of the environment, and labor rights. The Trans-Pacific Partnership-11 is increasingly being overshadowed by President Donald Trump’s ‘America First’ Trade Policy. Trump has withdrawn from the Trans-Pacific Partnership-11. He has emphasized that he would only reconsider the Trans-Pacific Partnership-11 if it was renegotiated on much better terms for the United States. Trump has also demanded revisions of the North American Free Trade Agreement 1994. He has threatened to withdraw altogether from the regional agreement if it is not modernised and improved. After engaging in Special 301 investigation, Trump’s United States Trade Representative has also brought a trade action against China in the World Trade Organization. Trump has alleged that China has engaged in acquisitions, appropriations, and infringements of flagship United States companies. President Donald Trump’s ‘America First’ Trade Policy will certainly have both direct and indirect implications for the operation of the Trans-Pacific Partnership-11