A treaty that placed the needs and rights of citizens on an equal footing with those of corporations would be much more deserving of the 'gold standard' label so frequently bestowed upon the TPP, writes Kyla Tienhaara.

After a month of speculation about the content of the deal reached in Atlanta, the 6,000+ pages of the Trans Pacific Partnership (TPP) were finally released on Thursday night.

We already knew from the limited information provided on the DFAT website in early October that Australia has abandoned its opposition to investor-state dispute settlement (ISDS) in the agreement. Big corporations use ISDS to challenge government measures, such as Australia's plain packaging legislation.

The release of the text allows us to scrutinise the Government's claims that the inclusion of ISDS in the TPP is not a threat to Australian public policy.

As has been widely reported, the TPP allows countries to exclude challenges made over tobacco-control measures from ISDS. As such, we won't see another Philip Morris case under the TPP. States are still permitted to bring cases against each other over tobacco-related trade disputes.

What about the claim that "there is explicit recognition that TPP Parties have an inherent right to regulate to protect public welfare, including in the areas of health and the environment"?

There is mention of a "right to regulate" in the preamble of the whole agreement, but this is not legally enforceable. In the investment chapter itself, a provision indicates that parties can maintain and enforce environmental and health measures that are "otherwise consistent" with the agreement. Translation: environmental and health measures (other than those related to tobacco control) can still be challenged under ISDS.

Then there are the 'safeguards', also meant to prevent challenges to public policy - are they 'robust', as argued by DFAT?

Since the last leak of the investment chapter, the TPP parties have added further clarifying language to one of the most contentious provisions on the so-called 'minimum standard of treatment'. This is likely a result of both continued public pressure, and tribunal decisions in cases like Bilcon v Canada that demonstrate that the safeguards in existing agreements have proven insufficient.

However, while the additional language may plug some holes, there is no guarantee that creative lawyers won't open up new ones. This is because the parties have chosen to continue with the US practice of linking the standard to 'customary international law' and have thus left it relatively open to interpretation. This is something that Europe has rejected in favour of "a clear, closed text which defines precisely the content of the standard without leaving unwelcome discretion to arbitrators".

Other 'safeguards' are also insufficient. For example, a large loophole that was identified in leaked drafts - the caveat that environmental or health regulation might be considered in breach of the TPP in "rare circumstances" - remains in the final text. An investor challenging measures taken by Costa Rica to protect sea turtles is currently trying to exploit this loophole.

The government has also touted the TPP's 'procedural safeguards'. These are meant to improve the investment arbitration system, which has been exposed as fundamentally flawed. There is actually very little that is new here. While the TPP adopts the standard level of transparency of documents and proceedings for American investment treaties (which is considerably higher than that found in ChAFTA), other structural deficiencies remain. The TPP parties have been tinkering around the edges while other countries and the European Commission are contemplating more significant changes.

The text commits the parties to provide 'guidance' on the application of a (yet to be developed) 'code of conduct' for arbitrators before the deal comes into force. But this is a very weak response to the concerns about arbitrators - who can also act as legal council in ISDS cases - having conflicts of interest. Europe's approach, which has been to propose a permanent investment court with a standing roster of arbitrators, demonstrates a stronger commitment to procedural reform.

All technicalities aside, one of the most striking aspects of the TPP investment chapter is its lack of balance. This isn't anything new, but it bears mention given that the parties have chosen to pay lip service to the issue of 'corporate social responsibility' (CSR). A toothless provision suggests parties should 'encourage' investors to 'voluntarily' adopt CSR standards and principles.

So on the one hand, the TPP provides extensive rights to foreign investors to challenge government measures. On the other hand, it provides no mechanism for those same investors to be held accountable for any environmental harm or human rights abuses they are responsible for.

If foreign investors really 'need' the additional protection that ISDS offers (as governments claim), why shouldn't that special privilege be conditioned upon their compliance with stringent rules of corporate conduct?

A treaty that placed the needs and rights of citizens on an equal footing with those of corporations would be much more deserving of the 'gold standard' label so frequently bestowed upon the TPP.

Kyla Tienhaara is a research fellow at the Regulatory Institutions Network (RegNet), Australian National University.