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The Trans-Pacific Partnership’s glaring double standard

http://www.salon.com/2015/06/28/the_trans_pacific_partnershipis_a_plutocrats_dream_partner/

Obama’s new pact provides legal rights to corporations that it does not extend to unions and public interest groups

DAVID SIROTA

In promoting a proposed trade pact covering 12 Pacific Rim nations, President Obama has cast the initiative as an instrument of equity. The Trans-Pacific Partnership would, in his words, “level the playing field” and “give our workers a fair shot.” But critics argue that within the hundreds of pages of esoteric provisions, the deal — like similar ones before it — includes a glaring double standard: It provides legal rights to corporations and investors that it does not extend to unions, public interest groups and individuals.

Recently leaked drafts of the agreement show the pact includes the kind of “Investor-State Dispute Settlement” (ISDS) provisions written into most major trade deals passed since the North American Free Trade Agreement. Those provisions allow companies to use secretive international tribunals to sue sovereign governments for damages when those governments pass public-interest policies that threaten to cut into a corporation’s profits or seize a company’s property.

But also like past trade deals, the TPP is not expected to allow unions and public-interest groups to bring their own suits in the same tribunals to compel governments to enforce labor, environmental and human rights laws.

The discrepancy is a deliberate effort to make sure trade policy includes a “tilt toward giant corporations,” Sen. Elizabeth Warren, D-Mass., said.

“If a Vietnamese company with U.S. operations wanted to challenge an increase in the U.S. minimum wage, it could use ISDS,” Warren wrote in a Washington Post op-ed in February. “But if an American labor union believed Vietnam was allowing Vietnamese companies to pay slave wages in violation of trade commitments, the union would have to make its case in the Vietnamese courts.”

The Obama administration argues that concerns from TPP opponents are exaggerated because to date the federal government has “never once lost an ISDS case.”

But those opponents counter by noting that those cases are on the rise across the globe. As the United Nations reported recently, ISDS cases “have proliferated in the past 10-15 years, with the overall number of known treaty-based arbitrations reaching 514.”

While trade deals include rhetoric saying the international tribunal process is not designed to undermine public interest policies, some of the cases brought by corporations have directly targeted those laws.

Philip Morris, for example, has filed suits against Australia and Uruguay, which require health warnings on tobacco products. In the ISDS process, Philip Morris is arguing that the requirements expropriate its property, deny the company fair treatment and unduly cut into its profits.

Similarly, a Swedish energy firm has used ISDS to target Germany’s restrictions on coal-fired and nuclear power plants, and Eli Lilly and Company is using the process to try to fight Canada’s efforts to limit drug patents and reduce the price of medicine. Most recently, Canadian Finance Minister Joe Oliver said bank regulations passed in the wake of the 2008 financial crisis could be a violation of trade provisions under NAFTA, raising the prospect of banks using the tribunal process to try to get the federal government to eliminate those regulations.

“Corporations under ISDS can bring cases without their national government’s permission, while unions and environmental groups in order to enforce the labor rights and environmental rights in these agreement have to get their government to bring the case,” said Damon Silvers, the AFL-CIO’s associate general counsel.

Government action has been rare. In 2014, the Government Accountability Office criticized “limited monitoring and enforcement” of trade deals’ protections for labor rights.

Opponents of the TPP say the new deal would do little to increase enforcement, and much to give companies special rights.

Sure, corporations may still be considered people under U.S. domestic law — but under American trade policy, they get far more rights than almost everyone else.

ASH: President Obama, U.S. Trade Representative Ambassador have opportunity to curb tobacco epidemic forever

http://www.news-medical.net/news/20150625/ASH-President-Obama-US-Trade-Representative-Ambassador-have-opportunity-to-curb-tobacco-epidemic-forever.aspx

President Obama and U.S. Trade Representative Ambassador Froman have the opportunity to curb the tobacco epidemic forever. The Senate voted to pass the Trade Promotion Authority Bill (TPA or Fast-Track) which creates an expedited process to get trade bills through Congress, paving the way for Obama’s signature.

Now that Fast-Track has passed, the President and Ambassador Froman will turn their attention to the Trans-Pacific Partnership Agreement (TPP), an emerging trade and investment agreement being negotiated by the United States, Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam. The agreement, once completed, will be the largest regional trading block in the world and will serve as the model for 21st century trade agreements. How tobacco is treated now will set the precedent for how tobacco will be treated in TTIP (The Trans-Atlantic Trade and Investment Partnership), an even larger agreement, and in future trade agreements worldwide.

As the only consumer good that kills half of its consumers when used exactly as intended, tobacco has become a major issue in the TPP negotiations, with public health and other groups banding together to call for unique treatment of tobacco products. “The purpose of international trade agreements is the free movement of goods, and tobacco is no good,” stated Prakit Vathesatogkit of Thailand during the global tobacco treaty negotiations in Moscow this past October.

The outcomes of the TPP negotiations will have a huge impact on tobacco control and global health. The tobacco industry has long used litigation, and trade agreements in particular, as a tool to block public health and tobacco control laws. For example, Philip Morris International created “legal chill” by threatening to sue Togo, one of the 10 poorest countries on earth, if Togo implemented graphic health warning labels on cigarette packs. Additionally, Australia and Uruguay are currently being sued over their tobacco packaging laws.

In 2011, two U.S. tobacco companies sued the FDA over an advisory report that simply considered a ban of menthol cigarettes. The tobacco industry is very comfortable using litigation as a tool, and if tobacco is included in the TPP, tobacco companies will use the TPP to their full advantage to prevent governments from enacting policies that protect the health of their citizens.

The TPP represents a crucial moment for tobacco control. President Obama and USTR Ambassador Froman should insist that tobacco be granted a full “carve out” from the TPP and from all other trade agreements. A “carve out” means that tobacco products will be excluded from the right and benefits of the trade agreement, providing governments with protection to regulate tobacco inside their borders without fear of being sued by the tobacco industry.

Furthermore, all of the TPP countries (except the U.S.) have ratified the WHO Framework Convention on Tobacco Control (FCTC), a legally binding international treaty, and have an obligation to implement its measures. Mary Assunta, Senior Policy Advisor of the Southeast Asia Tobacco Control Alliance (SEATCA) says, “[FCTC] Article 5.3 Guidelines, Recommendation 7.1 says the tobacco industry must not be given any incentives to run its business. Hence the TPPA, a new agreement, should reflect this clause.” The U.S. has not ratified the FCTC, but as a signatory, the U.S. should strive to reach the tobacco control best practices set out in the FCTC.

Unlike other consumer products included in trade agreements that can become harmful when abused or overused, there is no “safe” use or amount of tobacco. Tobacco is the only consumer product that kills when used exactly as intended. The tobacco industry seeks to increase consumption of tobacco, while ASH and its public health allies seek a higher level of global health. There is no “happy medium” to be found between the tobacco industry and the public health community.

The World Health Organization (WHO) estimates that 1 billion people will die from tobacco this century unless drastic actions are taken. One of those critical actions to take is carving tobacco products out of trade agreements. It is impossible to predict how many lives hang in the balance of the trade debate, but it is certainly millions worldwide. ASH encourages President Obama and Ambassador Froman to utilize TPP has a tool in the global fight against tobacco.

ASH Executive Director Laurent Huber says “The TPP is a moment in history for Obama – he is making a choice about how to treat tobacco that will echo for decades to come.

Hopefully that choice is to protect health over profit and carve tobacco out of the TPP.”

Free trade agreements ‘preferential’ and dangerous, says Productivity Commission

http://www.theage.com.au/business/the-economy/free-trade-agreements-preferential-and-dangerous-says-productivity-commission-20150624-ghw7rk.html

The Productivity Commission has launched a scathing attack on Australia’s latest series of free trade agreements, saying they grant legal rights to foreign investors not available to Australians, expose the government to potentially large unfunded liabilities and add extra costs on businesses attempting to comply with them.

The assessment comes after trade minister Andrew Robb successfully concluded agreements with Japan, Korea and China, and on the cusp of final negotiations to seal a so-called Trans Pacific Partnership with eleven Pacific-facing nations including the United States, Japan, New Zealand and Singapore.

On Wednesday, the US Senate voted to give President Barack Obama special negotiating powers that will remove one of the last impediments to the partnership.

The Productivity Commission has devoted a special chapter of its Trade and Assistance Review released on Wednesday to the agreements, which it described as “preferential” rather than “free” trade agreements.

It claims that by favouring some countries over others and excluding firms sourcing substantial inputs from other countries from special treatment, they “add to the complexity of international trade and investment, are costly and time-consuming to negotiate and add to the compliance costs of firms and administrative costs of governments.”

According to the Commission, the Japan and Korean agreements were concluded without a rigorous and independent assessment of whether costs would exceed benefits. There was also no mechanism in place to monitor the outcomes of the agreements after they come into force, it said.

“Without such a detailed assessment it is not possible to form a view as to whether the aspirational goals typically ascribed to the formation of preferential agreements are commensurate with real-world impacts,” the Productivity Commission said in its trade review.

Leaks about the text of the Trans Pacific Partnership suggested it will “include obligations on pharmaceutical price determination arrangements in Australia and other TPP members of an uncertain character and intent”.

“The history of intellectual property arrangements being addressed in preferential trade deals is not good.”

Also, investor-state dispute settlement clauses included in the Korean and Chinese agreements and planned for the Trans Pacific Partnership “depart from national treatment principles by affording substantive appeal rights to foreigners not available to domestic firms,” the Commission warned, saying this could create the risk of “regulatory chill” where Australian governments will be cautious about enacting new laws for fear they are challenged in foreign tribunals.

The safeguards and carve-outs for environmental and health legislation included were of “uncertain effect, lack transparency and have inadequate parliamentary scrutiny”, exposing the government to “potentially large unfunded contingent liabilities dependent on decisions by international arbitration tribunals”, the Commission found.

The cost to Australia of defending an action brought against it by Philip Morris Asia under an investor-state dispute settlement clause over its plain tobacco packaging legislation were “unknown, unfunded and likely to be substantial.”

Japan and Korea stake out tough anti-counterfeiting positions in proposed trade deal

http://www.worldtrademarkreview.com/blog/detail.aspx?g=d40eea58-6578-4f71-826a-6a6e2ef97282

Trade representatives from 16 Asian countries are convening in Kyoto this week for an eighth round of negotiations over the Regional Comprehensive Economic Partnership (RCEP) agreement. In the run-up to the meeting a series of leaks revealed the IP positions of four key parties to the deal (Japan, Korea, India and ASEAN), which indicate that the East Asian nations are hoping to codify tough measures against counterfeiting.

Back in April, this blog covered the leaked provisions of the proposed Trans-Pacific Partnership (TPP), which some observers feared could affect plain packaging laws in Australia and elsewhere by giving tobacco companies more leeway to sue governments over alleged appropriation of their brand assets. The RCEP is an alternative trade deal being negotiated exclusively by Asian countries. But while it is relatively unknown compared to the TPP, if passed the RCEP could have a greater impact on regional trademark enforcement efforts. That is because, unlike the TPP, it involves China, India and the whole of ASEAN (though four ASEAN states are also negotiating TPP). Taken together, these markets probably account for the lion’s share of the enforcement activities undertaken by global brands focused on the region. Therefore, any change in policy could have a notable impact.

The question on everyone’s mind is how similar or dissimilar the RCEP will be to the TPP. Four proposed IP chapters leaked by Knowledge Economy International (KEI) give insight into the negotiating positions of Japan, Korea, India and ASEAN (which is negotiating as a bloc), while a leak of the proposed IP chapter of the latter agreement revealed what is shaping up to be a strongly rights-holder friendly system. Given the Obama administration’s repeated refrain of “If we don’t write the trade rules, China will”, there has been some speculation about whether RCEP could emerge as a homegrown alternative to the TPP – potentially without all of the IP protections sought by Western corporations. But the leaks make clear that Japan and Korea are pushing for a TPP-style regime.

While many of the most contentious flashpoints are in the patent space, surrounding issues like compulsory licensing for pharmaceuticals, anti-counterfeiting is one area where there are marked differences in the proposals that have now been made public.

One area in which both Japan and Korea are seeking to enshrine strong anti-counterfeiting measures is in the realm of customs enforcement. Both propose that customs authorities be empowered to act ex officio to suspend the release of trademark infringing goods for import, export or transhipment. India’s proposal makes no specific mention of customs enforcement, while ASEAN’s includes a general call for cooperation on border measures. The leaked TPP draft makes clear that there are splits within ASEAN on the issue: Vietnam opposes the inclusion of ex officio powers for customs officials, while Singapore, Brunei and Malaysia support granting such authority only over goods imported into a country, not goods which are exported or in transit.

Another strict measure sought by both Korea and Japan relates to criminal prosecution in cases of wilful trademark infringement or counterfeiting on a commercial scale. Both countries’ proposals also detail standards to ensure that wronged parties are granted adequate damages and other remedies in civil and criminal litigation. Again, neither the ASEAN nor the Indian chapters cover this issue in detail. The TPP draft includes similar language but there is ample disagreement over the details; Vietnam, for example, supports criminal sanctions for commercial-scale import of counterfeit goods, but not export.

Beyond counterfeiting, there is discord over whether the agreement should require signatories to extend protection to non-traditional trademarks. India’s submission proposes that parties may require a mark be visually perceptible to be reigistrable. Korea, which allows sound and scent marks, wants such marks to be accepted throughout the region. It may be joined in this by Japan, which has introduced its own system of non-traditional marks in the time since its proposal was authored. The TPP draft in circulation looks set to extend protection of sound marks, while parties including Vietnam, Brunei and Japan oppose adding similar language about scents.

Another issue this blog has covered which is likely to be a hot topic in Kyoto is India’s strict FDI rules. Countries including Japan and Australia are likely to ask for the addition of an e-commerce chapter to the agreement pressuring India to open up that part of its economy, allowing foreign brands to sell goods online directly to Indian consumers.

Of course the usual caveats apply here: these positions are all at least nine months old and could be far from what ends up in the final agreement (especially because we haven’t yet heard from China). But it’s clear that Japan and Korea have an incentive (due to the former’s role in the TPP and the latter’s FTA with the US) to lobby for robust trademark protection policies. Rather than rival alternatives, it looks likely that the two agreements could be mutually reinforcing. With the TPP near completion and the RCEP aiming to wrap up negotiations by the end of this year, we should soon have more than just speculation to go on. And then we’ll know who gets the first crack at “writing the rules” for intellectual property in Asia.

What Drives Governments to Keep TISA, TPP and TTIP Secret?

http://www.telesurtv.net/english/opinion/What-Drives-Governments-to-Keep-TISA-TPP-and-TTIP-secret-20150612-0001.html

Basically, these trade agreements are being kept secret because they violate regulations and national laws for the sole benefit of large corporations.

​On this web page, the Canadian government asks if we are “Looking for a brief recap of the Trans-Pacific Partnership (TPP) negotiating rounds?“

This is a representative sample of what it offers to explain two years worth of negotiations since Canada joined other governments in writing the TPP:

“Among the topics discussed in Washington were legal and institutional issues, textiles, rules of origin, state-owned enterprises, environment, goods market access, technical barriers to trade, and e-commerce.”

Feel better informed?

They might as well have said “we talked about a lot of stuff” and left it at that.

Here is something way more informative to read: a list of the 605 (overwhelmingly corporate) official “advisers” in the U.S. who have seen, and helped write, the TPP.

In the USA, members of Congress and a limited number of aides can see the text provided they agree not to take notes or discuss the details publicly. Apologists for this undemocratic idiocy become irate when the TPP is called a “secret”, but, at the same time, justify hiding it from the public by claiming it improves governments’ bargaining position. Apparently we should assume that governments and their corporate “advisers” have spent years secretly fighting like demons on behalf of cab drivers, factory workers and the unemployed.

In Australia, MPs are only allowed to see the TPP text if they sign a confidentiality agreement saying they won’t divulge details to the public for four years. What if the TPP is passed? Are they then allowed to talk what they saw? No. The agreement says “these confidentiality requirements shall apply for four years after entry into force of the TPP, or if no agreement enters into force, for four years after the last round of negotiations…”

In the USA, the public is supposed to be impressed that Obama is required to release the full text (in exchange for getting “fast track” negotiating authority) sixty days before signing the agreement – the complex agreement government officials and hundreds of corporate insiders spent several years writing behind closed doors.

Could contempt for the public, and for democracy, be any more obvious?

This site jokingly claims the TPP has been already released by the Obama administration. It sums the absurdity up very succinctly.

Secrecy aside, would most of the public understand the TPP – the parts that have been leaked by Wikileaks that is, or the seventeen chapters of TISA (Trade in Services Agreement) that have also been leaked by Wikileaks?

No. These deals are written in technical language that requires lawyers and economists – or others who have spent a lot of time researching – to fully grasp. Now there are legal experts and economists who are not in the pockets of powerful western governments and big corporations. Such people could credibly explain what the implications of these agreements are for 99.999 percent of the public who are not among the insiders.

Unfortunately, the battle doesn’t end when the details of these secret agreements, thanks to Wikileaks and other activists, are made public long before governments want them to be. We are still faced with a struggle against the corporate media that is very good at marginalizing those who explain exactly why governments and corporate insiders worked in secrecy for so many years.

The secrecy is disgusting and revealing but it is also rather ineffective at this point. The leaked sections that have been published, and our experience with previous agreements like NAFTA, tells us essentially what the negotiating governments are after – ways to stuff the pockets and expand the power of the insiders at the expense of everyone else. The corporate media, not secrecy, is actually the more important barrier to fair and open debate.

Dean Baker explained “TPP and TTIP are about getting special deals for businesses that they would have difficulty getting through the normal political process. For example, oil and gas companies that think they should be able to drill everywhere may be able to get rules that prevent national or state governments from restricting their activities. This could mean, for example, that New York State would have to compensate potential frackers for the ban that Governor Cuomo imposed last week.

Similarly, the financial industry will be looking to roll back the sort of regulations put in place through Dodd-Frank and similar legislation in other countries. Again, if governments want to ensure that their financial system is safe, they may have to pay the banks for the privilege.”

Everyone owes a special thanks to Canada’s Finance Minister for being brazen enough to argue that the US should loosen up financial regulations adopted since crash of 2008 in order to be in compliance with NAFTA.

As Lori Wallach explained about TISA in this Democracy Now interview, governments and their small army of corporate insiders are working on ways to set the clock back on financial regulation – to about the 1990s! She describes a provision that is actually called the “standstill” in the text of the agreement. It is explicitly designed to prevent governments for bringing in new financial regulations that corporations don’t like. Does the public support a new ban a particular type of derivative that is going to be a disaster? Does the public want new rules that protect their privacy online? Too bad. TISA will make many new rules, and even existing ones, into trade violations.

No wonder governments have insisted on keeping these agreements secret for so many years.

Leaked Trade Deal Terms Prompt Fears for Pharmaceutical Benefits Scheme

http://readersupportednews.org/news-section2/318-66/30676-leaked-trade-deal-terms-prompt-fears-for-pharmaceutical-benefits-scheme

Documents on the Trans-Pacific Partnership revealed by Wikileaks have revealed draft rules for medicines provided by national health care schemes

he leak of new information on the Trans-Pacific Partnership agreement (TPP) shows the mega-trade deal could provide more ways for multinational corporations to influence Australia’s control of its pharmaceutical regulations.

Revealed via Wikileaks, the annexe on “transparency and procedural fairness for pharmaceutical products and medical devices” uncovered the draft agreements regarding medicines between the 12 TPPA member countries.

The leak comes as US Republican leaders announced a vote on Friday that may provide Barack Obama a fast-track authority to complete the agreement with Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam. The countries represent 40% of the world’s economy.

The leaked text, dated December 2014, laid out the draft rules for member countries regarding medicines under national health care programs, in Australia’s case, the Pharmaceutical Benefits Scheme (PBS). The TPP has yet to be signed off.

The Abbott government has argued the trade deal will provide access for Australian products to other markets. But it requires Australia to trade off regulations that stop access by other countries and particularly multinational companies to the Australian market.

Critics have suggested the deal, which is likely to include Investor State Dispute Settlement (ISDS) clauses, will allow big corporations to sue Australian governments. Philip Morris International is currently challenging the former Labor government’s tobacco plain packaging laws under a Hong Kong trade treaty ISDS.

Trade experts leaped on the rare information release regarding the secret but wide-ranging trade deal. Deborah Gleeson, a lecturer at the school of psychology and public health at La Trobe University, said the inclusion of an annexe on health “serves no useful public interest purpose”.

“It sets a terrible precedent for using regional trade deals to tamper with other countries’ health systems and could circumscribe the options available to developing countries seeking to introduce pharmaceutical coverage programs in future,” Gleeson said.

Jane Kelsey of the faculty of law of the University of Auckland described the annexe as one of the most controversial parts of the TPP in her analysis. She said the US pharmaceutical industry was using the trade agreement to target New Zealand’s Pharmaceutical Management Agency (Pharmac), equivalent to the PBS.

“This ‘transparency’ annexe seeks to erode the processes and decisions of agencies that decide which medicines and medical devices to subsidise the public money and by how much,” Kelsey said.

“This leaked text shows the TPP will severely erode Pharmac’s ability to continue to deliver affordable medicines and medical devices as it has for the past two decades.

“That will mean fewer medicines are subsidised, or people will pay more as co-payments or more of the health budget will go to pay for medicines instead of other activities or the health budget will have to expand beyond the cap.

“Whatever the outcome, the big global pharmaceutical companies will win and the poorest and most vulnerable New Zealanders will lose.”

AMA president Brian Owler said while doctors were very concerned at the possible effects on Australia’s healthcare systems, they were constantly dismissed by the trade minister Andrew Robb.

“When we have raised concerns about the effects on health, the only response is ‘we are not going to undermine the Pharmaceutical Benefits Scheme’,” said Owler.

“We are worried about the Investor State Dispute Settlement (ISDS) mechanism and there are issues in terms of patents that would affect pharmaceutical prices.

“The problem is our concerns have been dismissed by the trade minister but we do not know what is in the text.”

However, Robb said on Thursday that the government would not accept anything that would adversely affect the PBS, the health system more generally, or increase the price of medicines for Australians.

“It’s perhaps time to look at the enormous benefits that will flow from a more seamless trade and investment environment across 12 countries representing 40 per cent of global GDP,” Robb said.

“New levels of market access and common sets of trading rules will help support growth, create new jobs and result in higher living standards.”

Parliamentarians were offered the chance to see the TPP draft by Robb if they agreed to a four year non-disclosure agreement.

A cross-party parliamentary working group has formed, including Greens senator Peter Whish-Wilson, Labor MP Melissa Parke and independent senator Nick Xenophon.

Whish-Wilson, who has not seen the draft as he refused to agree to the terms of the agreement, said the latest leak suggested the Australian PBS could be undermined.

“These negotiations are happening behind closed doors, without the scrutiny of the parliament,” he said.

“At the very least, the Australian people deserve to be reassured that the government won’t allow any deal which drives up the public health costs for Australian taxpayers such as further subsidising important new medicines including biologics.”

During the most recent senate estimates in the past fortnight, Whish-Wilson questioned officials from the department of foreign affairs and trade about the strategic importance of the TPP to the United States.

The secretary of Dfat, Peter Varghese, said the whole purpose was to indicate a “ramped up US presence in Asia”.

“The conclusion of the TPP is important to the United States in terms of its re-balance, because it is an important step in relation to the economic engagement of the United States with the region, and the whole purpose of the re-balance was to indicate a ramped up US presence in Asia, and a recognition of the importance of Asia in broader US geostrategic thinking,” Varghese said.

“We in Australia have never seen the TPP as an instrument for locking anybody out— in fact, quite the contrary.”

The trade minister’s office was contacted for comment.

Why you should care about the Trans-Pacific Partnership

http://www.theaustralian.com.au/news/why-you-should-care-about-the-trans-pacific-partnership/story-e6frg6n6-1227386204995

WHEN Australia became the first country in the world to outlaw tobacco branding in 2011, it was hailed as a victory for the health lobby and a blow to big tobacco.

Australia’s parliament had decided that it would change the rules around what constituted acceptable marketing for an addictive product that kills people.

That seems fair.

Big tobacco did not see it that way, and Philip Morris Asia set about trying to find a way to claw back what it saw as its right to market carcinogens in a more palatable light.

It soon found a way — a trade agreement signed between Australia and Hong Kong back in 1993 that dealt with the “promotion and protection of investments’’.

Philip Morris’s case, which is ongoing, is the first ever “investor state dispute” lodged against Australia.

But the fear is that the Trans-Pacific Partnership, which the Australian Government and 11 other countries around the Asia Pacific region are currently negotiating, will open the floodgates of Investor State Dispute Settlement (ISDS), eroding our ability to set our own laws and benefiting big business to the detriment of everyday citizens.

The TPP is one of those issues that elicits dire warnings about the rise of a New World Order’, with Machiavellian business leaders pulling the strings while chomping away on Cuban cigars.

Activist group GetUp calls it “the scariest treaty you’ve never heard of’’, and this week WikiLeaks reportedly offered a $100,000 reward for all 29 sections of the agreement.

In short, the TPP is a trade deal between 12 countries, including the US and Australia, all around the Asia Pacific, covering about 800 million people and about 40 per cent of world GDP. It does not include China.

As with most trade treaties, the idea is to make trade between countries easier. The TPP wants to try to remove tariffs, but also to remove many of the “non-tariff barriers” to trade.

This means there is a push for uniformity, or recognition of the validity of a country’s regulations in areas such as labelling laws, food safety and copyright protection. These barriers can be even more damaging to international trade than tariffs, with countries able to block the entry of products if they don’t meet local guidelines.

Another benefit expected to flow from the TPP is the mutual recognition of qualifications, meaning that professionals such as architects and engineers could more easily work internationally.

But one of the concerning quirks of the TPP is that Joe Public won’t get a look at it until it’s been signed.

A treaty of extreme secrecy

Despite it having been debated back and forth for the past decade, no-one knows what’s in the TPP.

Australian politicians have been told they can view the documents, but only if they agree not to talk about what they have seen for four years. This is despite the fact that the agreement is expected to come into force within months. Trade Minister Andrew Robb has said, however, that the public will get to see the text once it is signed off, and before it comes into legislative force.

There are some key fears around the TPP, including that:

ISDS rules will erode government’s ability to make decisions and will open them up to multi-billion dollar lawsuits;

PRICES for generic drugs will increase;

JOURNALISTS could face significantly weaker whistleblower protections, and;

IT it will make sending low-wage jobs offshore easier.

The fear over ISDS is not an idle one.

ISDS basically allows companies to sue when the rules are changed and they stand to lose money, and it’s becoming more popular.

The North American Free Trade Agreement between the US, Canada and Mexico contains ISDS clauses that some consider to have been designed to protect US companies against Mexican law changes.

In her submission to the Australian Government on the TPP, Dr Kyla Tienhaara from the Regulatory Institutions Network at the Australian National University points out that by May 2010 Canada had received 27 notices of intent to launch ISDS claims, with several of them either settled or going to court.

In one case, Dow AgroSciences launched a claim against Quebec after a particular chemical was banned for use as a pesticide on lawns.

While the regulators were being conservative and banning the chemical despite no firm evidence of harm, the company argued that it was a restraint of trade.

In 2012, the Swedish nuclear energy company Vattenfall launched an ISDS claim worth 3.7 billion euro against Germany after it decided to phase out nuclear power following the Fukushima nuclear disaster.

Locally, if the Australian government was to decide, for example, to revoke the right of companies to explore for oil in the Great Australian Bight, as is going on now, it would open itself to an ISDS claim.

Dr Tienhaara says there has been an “explosive increase” in ISDS claims in recent years and “the Government should strongly oppose the inclusion of Investor-State Dispute Settlement in the Trans-Pacific Partnership Agreement’’.

The Government, which says its “decision to participate in the TPP in 2008 followed an extensive public consultation process”, assures the public that it should not be too concerned about the issue.

“Australia would retain the ability to regulate legitimately on social, environmental or other similar public policy matters,’’ a Government presentation says.

“Australia is considering the inclusion of Investor-State Dispute Settlement (ISDS) provisions in free trade agreements on a case-by case basis.’’

ISDS is not the only cause for concern, however.

So who wins from the TPP?

Nobel prize-winning economist Joseph Stiglitz believes the TPP “will benefit the wealthiest sliver of the American and global elite at the expense of everyone else’’.

He is worried, like many others, that standardisation of regulations means we will end up with the weakest regulations, allowing corporations to do as they please.

“There are other noxious provisions,” he says. “America has been fighting to lower the cost of health care. But the TPP would make the introduction of generic drugs more difficult and thus raise the price of medicines.”

The same concern has been raised in Australia by generic drug maker Alphapharm, which says that it produces one in five of all drugs supplied under the Pharmaceutical Benefits Scheme.

There are also fears that the TPP could criminalise whistleblowers and journalists. Earlier this month, hundreds of US tech and media companies sent a letter to the US congress warning “TPP’s trade secrets provisions could make it a crime for people to reveal corporate wrongdoing ‘through a computer system’”.

“The language is dangerously vague, and enables signatory countries to enact rules that would ban reporting on timely, critical issues affecting the public.’’

There are also stronger powers in leaked elements of the TPP for copyright owners to track down people who illegally download content.

While these fears are all valid, without seeing the documents it is impossible to make an accurate judgment of what the final agreement will look like.

For his part, Mr Robb has dismissed fears that the government will be selling the nation down the river as a signatory to this deal.

“Why would I set out to make Australians materially worse off?’’ he said recently.

Mr Robb argues that sectors such as tourism, hospitality and agriculture stand to gain substantially from the TPP.

“There are enormous growth opportunities for us at the premium end of markets across the Asia Pacific on account of our reputation for ‘clean, green and safe’ produce,” he says.

“Modelling conducted by the US Department for Agriculture shows Australian exporters would be the biggest beneficiary of all 12 countries under the TPP.

“When you add these gains to the benefits that will flow from the powerful trifecta of North Asia agreements … there is cause for real optimism around Australian agriculture.”

‘This will undergo extensive scrutiny’

Mr Robb says claims about secrecy and lack of transparency are “overblown”.

“Of course there is a degree of confidentiality around the negotiations, as there is with any commercial negotiation, but there is also extensive consultation with a wide range of stakeholders throughout,” Mr Robb says.

“This consultation is invaluable in both informing and guiding our approach to what are typically complex issues. There have, in fact, been more than 1000 TPP consultations since 2011 and these continue.

“Finally, the TPP text will not be kept secret.

“Once it is agreed between parties, it will be made public and also subjected to extensive scrutiny and inquiry before implementing legislation is considered and voted on by the parliament.”

The Dean of the School of International Studies at Flinders University, Martin Griffiths, believes the need for US president Barack Obama to get the TPP through Congress will filter out many of the more contentious elements.

“The difficulty in the United States with this agreement is with the Democrats, which is Obama’s own party,” he says.

“These kinds of agreements get a lot of hostility within the Democrats because they tend to benefit wealthier workers … because they’re linked to the outsourcing of jobs.

“It’s a very political document and because it is political I suspect we won’t have much to worry about.”

Mr Griffiths says Japan is very protective of its sovereign rights, and the US agriculture lobby will not stand for an agreement that seriously erodes protections.

Mr Griffiths says the US could be using the TPP as “bait” to attract China into a closer relationship with the region and the US, and this also weighed against an agreement that would seriously reduce sovereign rights.

“I would suspect that our biggest fears, despite the secrecy, are unfounded,” he says.

Many remain unconvinced however, including the 85,551 signatories to GetUp’s online petition.

WikiLeaks releases secret TISA docs: The more evil sibling of TTIP and TPP

http://arstechnica.co.uk/tech-policy/2015/06/wikileaks-releases-secret-tisa-docs-the-more-evil-sibling-of-ttip-and-tpp/

The new agreement that would hamstring governments and citizens even further.

WikiLeaks has released 17 secret documents from the negotiations of the global Trade in Services Agreement (TISA), which have been taking place behind closed doors, largely unnoticed, since 2013. The main participants are the United States, the European Union, and 23 other countries including Turkey, Mexico, Canada, Australia, Pakistan, Taiwan and Israel, which together comprise two-thirds of global GDP.

Significantly, all the BRICS countries—Brazil, Russia, India, China, and South Africa—are absent, and are therefore unable to provide their perspective and input for what is essentially a deal designed by Western nations, for the benefit of Western corporations. According to the European Commission’s dedicated page: “TiSA aims at opening up markets and improving rules in areas such as licensing, financial services, telecoms, e-commerce, maritime transport, and professionals moving abroad temporarily to provide services.”

TISA’s focus on services complements the two other global trade agreements currently being negotiated in secret: the Transatlantic Trade and Investment Partnership (TTIP), and the corresponding deal for the Pacific region, the Trans-Pacific Partnership (TPP), which deal with goods and investments. Like both TTIP and TPP, one of the central aims of TISA is to remove “barriers” to trade in services, and to impose a regulatory ratchet on participating nations. In the case of TISA, the ratchet ensures that services are deregulated and opened up to private companies around the world, and that once privatised, they cannot be re-nationalised.

The 17 documents released today include drafts and annexes on issues such as air traffic, maritime transport, professional services, e-commerce, delivery services, transparency, and domestic regulation, as well as several documents on the positions of negotiating parties. The annexe on e-commerce is likely to be of particular interest to Ars readers, since, if adopted, it would have a major impact on several extremely sensitive areas in the digital realm.

Thou shalt not…

For example, the question of data flows—specifically the flow of European citizens’ personal data to the US—is at the heart of disputes over the EU’s proposed Data Retention rules, the Safe Harbour agreement, and TTIP. Here’s what Article 2.1 of TISA’s e-commerce annexe would impose upon its signatories: “No Party may prevent a service supplier of another Party from transferring, [accessing, processing or storing] information, including personal information, within or outside the Party’s territory, where such activity is carried out in connection with the conduct of the service supplier’s business.”

What that means in practice, is that the EU would be forbidden from requiring that US companies like Google or Facebook keep the personal data of European citizens within the EU—one of the ideas currently being floated in Germany. Article 9.1 imposes a more general ban on requiring companies to locate some of their computing facilities in a territory: “No Party may require a service supplier, as a condition for supplying a service or investing in its territory, to: (a) use computing facilities located in the Party’s territory.”

TTIP explained: The secretive US-EU treaty that undermines democracy

A boost for national economies, or a Trojan Horse for corporations?

Article 6 of the leaked text seems to ban any country from using free software mandates: “No Party may require the transfer of, or access to, source code of software owned by a person of another Party, as a condition of providing services related to such software in its territory.” The text goes on to specify that this only applies to “mass-market software,” and does not apply to software used for critical infrastructure. It would still prevent a European government from specifying that its civil servants should use only open-source code for word processing—a sensible requirement given what we know about the deployment of backdoors in commercial software by the NSA and GCHQ.

Without WikiLeaks, the presence of these far-reaching proposals would not have been revealed until after the agreement had been finalised—at which point, nothing could be done about them, since the text would be fixed. With the publication of these documents, civil society has an opportunity to find out what is being discussed behind those closed doors, and to analyse and discuss the implications. Whether the negotiators will take account of what ordinary people think is another matter.

Fix fundamental TPP flaws to fit 21st century

http://www.japantimes.co.jp/opinion/2015/06/03/commentary/japan-commentary/fix-fundamental-tpp-flaws-fit-21st-century/

SCARSDALE, NEW YORK – The Trans-Pacific Partnership negotiations have been hijacked by lobbyists from America’s biggest manufacturing and agribusiness corporations, Silicon Valley high-tech firms and Wall Street’s “too-big-to-fail” banks.

Under the TPP, Wall Street will be able to circumvent the U.S. government regulations that discourage the fraudulent financial games that bankrupted more than 15 million Americans in 2008. The TPP will let large pharmaceutical firms and Silicon Valley IT firms prolong their patent monopoly profits. Manufacturing firms will more freely send their jobs abroad. Large agribusiness will fatten its profits and small family farmers in the U.S. and abroad will suffer.

In 1993, under the North American Free Trade Agreement (NAFTA), a precursor to the TPP, American supermarket chains rushed into Mexico and pulled in the produce of American big agribusiness. Mexico’s small farmers lost their domestic markets to American supermarkets’ imports of American agribusiness produce. Displaced Mexican peasants became undocumented migrant workers in the United States. U.S. manufacturing firms moved over 1 million jobs to Mexico, widening the income gaps between the top 1 percent and the rest of American households.

The Trade Adjustment Assistance (TAA) that was touted as a boon to American workers’ job retraining turned out to be a meager “burial insurance” for the abandoned workers. There were no new jobs available for the retrained workers. The “job protection rules” of the TPP are no better.

The TPP will have an international tribunal of private attorneys outside any sovereign nation’s legal system. This tribunal will compensate multinational firms for “unjust expropriation” of their foreign assets and profits deemed lost due to a sovereign host nation’s laws. Philip Morris is already claiming that Uruguay’s anti-smoking regulations have diminished its profits.

Under the TPP, global corporations will challenge any host government’s regulations and laws protecting consumers from unsafe products or unhealthy foods, investors from fraudulent securities or predatory lending, or the environment from toxic emissions.

The TPP promoters are using an obsolete 19th-century trade theory concocted by David Ricardo. He was a wealthy merchant in the British parliament and represented the rising industrialist class against the traditional landed gentry. Britain protected English wheat from cheaper French grains. The landed gentry wanted to continue the protectionism, but the industrialists wished to keep their wage payments low by importing cheaper French wheat.

To show the benefits of “free trade,” Ricardo argued, with an unrealistic numerical example, that even if Britain could produce both cotton and wine more cheaply than Portugal, both nations would benefit economically if Britain specialized in cotton and Portugal in wine and exchanged mutually their production surplus.

Immediately, an astute opponent replied, “Ricardo’s theory is relevant perhaps only to the man who was suddenly planted on a different planet where no ignorance, no restriction of trade, no taxes, no idle workers and no individual rivalry existed.”

In the 21st century, the three ingredients of a nation’s economic growth — namely capital, technology and information — travel around the globe at the speed of light. Wall Street’s financial economy is increasingly separated from the real economy and is destroying manufacturing jobs. Tax cuts to the wealthy and big business simply fuel their financial games. Import tariffs are already low. The international flows of manufacturing are determined by technological innovation, quality of labor, taxation systems, fluctuating rates of currencies, the natural environment, management attitude toward labor, labor laws and industrial policies, and quality of social infrastructure.

President Barack Obama says the TPP would help export U.S. cars to Japan. However, Japanese drivers are not buying American cars because of high tariffs or import quotas. Rather, they’re seen as too big for narrow Japanese roads and their quality and dealer services are considered inferior.

On the other hand, Obama’s rescue of Detroit was a resounding success only because Ford, GM and Chrysler emulated Toyota’s manufacturing skill and customer service. American import quotas on Japanese automobiles persuaded Japanese auto and parts manufacturers to make their products in the U.S. and train American labor to become just as productive and quality conscious as their Japanese counterparts. Japanese auto plants in America are exporting their products to Asia. Selective “protectionism” is necessary to protect labor, technological innovation and manufacturing skill of a nation’s strategic industry.

The emerging TPP is fundamentally flawed because its U.S. negotiation processes have excluded labor, environmentalist and citizens’ groups, and because its primary framework is the destructive private tribunal.

Furthermore, its hidden agenda is to contain China, the second largest economy of the world. But without China’s membership in the TPP, the trade and navigation route from the South China Sea to Northeast Asia — Japan, Taiwan and South Korea — will be exposed to China’s “saber-rattling.”

As shown by U.S.-China cooperation over global warming problems, the TPP must be built on the tripartite cooperation of the U.S., China and Japan. This framework would finally help Prime Minister Shinzo Abe acknowledge Imperial Japan’s wartime atrocities and reset its relations with China and South Korea. Then, the new TPP should be crafted to help the U.S. rebuild its manufacturing skill, employment and social infrastructure, and to help Japan modernize its agricultural sector.

US-Asia trade deal in tatters after senators target Chinese currency manipulation

US President Barack Obama’s ambitions to pass sweeping new free trade agreements with Asia and Europe are in tatters after Senate Democrats rebelled, having been rebuffed on their demands to curtail Chinese currency manipulation.

A vote to push through a bill on the trade deals failed on Tuesday as 45 senators voted against it, to 52 in favour. Obama needed 60 out of the 100 votes for it to pass.

Failure to secure so-called “fast track” negotiating authority from Congress represents a huge blow to the president’s top legislative priority.

White House officials dismissed the Senate vote against fast-track as a “procedural snafu” but without this crucial agreement from lawmakers to give the administration negotiating freedom, it is seen as highly unlikely that international diplomats can complete either of the two giant trade deals currently in negotiation: the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP).

The Senate fast-track legislation, known as Trade Promotion Authority or TPA, was facing even tougher opposition in the US House of Representatives.

Opponents have been emboldened by the growing influence of liberal senators Elizabeth Warren and Bernie Sanders and were joined by all but one Senate Democrat in voting against moving forward with TPA.

Even Hillary Clinton, the Democratic frontrunner for the 2016 presidential race and historically a supporter of free trade, has been cautious amid growing concern over the effect of globalisation on middle-class jobs, warning against “trade for trades sake”.

But the failure to persuade even the half-dozen Democrats needed to join Republicans in the Senate is a shock reversal from earlier consensus in the finance committee, which had included an agreement to soften the impact on US jobs with Trade Adjustment Assistance (TAA).

Oregon senator Ron Wyden, who had led Democrat efforts to find a compromise with Republicans on the committee, said he had withdrawn his support because they refused to guarantee passage of another additional bill to prevent currency manipulation by China.

White House trade negotiators fear that provisions in this bill would prove impossible to introduce into trade talks at this late stage and Republicans have dismissed the issue as a wrecking tactic by Democrats.

Utah senator Orrin Hatch, the Republican sponsor of the TPA bill, accused Wyden and other Democrats of betrayal in a speech on the Senate floor.

“I am shocked that after all we have done, the bipartisan vote in committee and the importance of TPA and TAA to the president that, we now have damaging procedural mechanics that can make this impossible,” he said. “It is hard for me to believe. We had an agreement and I am concerned about that agreement being broken.”

Hatch later told reporters the issue must be resolved quickly but was uncertain of the pathway forward. The congressional drama over the TPA, he added, “creates a whole new monster set of arguments and debates that we don’t need” in negotiations over the broader Trans-Pacific Partnership.

But Democratic critics heralded the vote as a breakthrough moment.

“We need to fundamentally renegotiate American trade agreements so that our largest export doesn’t become decent paying American jobs,” said Sanders.

Business leaders expressed disappointment in the vote. The Business Roundtable, Washington’s top business lobby group, had urged the Senate to pass TPA “without delay” arguing the trade pact would support US jobs and spur economic growth.

Last week Obama chose Nike’s headquarters to call for Congress to support the deal. Nike chief executive Mark Parker has claimed the deal would allow it to create 10,000 new jobs in the US.

Source URL (modified on May 13th 2015, 8:21am): http://www.scmp.com/news/world/article/1794855/us-asia-trade-deal-tatters-after-senators-target-chinese-currency