Overnight, thousands of pages of text of the Trans-Pacific Partnership have been released, ending months of secrecy. As experts around the world begin the task of poring over the detail, here are four key issues to watch.



Environment



The language in this chapter of the TPP covers objectives ranging from protecting the environment from ship pollution, protecting the ozone layer, dealing with “invasive alien species” and implementing voluntary mechanisms to enhance environmental performance. But green groups and trade experts including Matthew Rimmer, professor of intellectual property and innovation at the Queensland University of Technology, have been surprised to learn the chapter doesn’t actually use the words climate change. “Instead [of climate change], there is some weak language on the transition to a low emissions economy,” Rimmer says.

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The “low emissions” language in the text is not so much weak as artfully non-specific. It says parties to the TPP recognise “each party’s actions to transition to a low emissions economy should reflect domestic circumstances and capabilities”. It presages cooperation between the signatories on energy efficiency, renewable energy investment, sustainable urban infrastructure development, addressing deforestation and forest degradation, conducting emissions monitoring, developing market and non-market mechanisms, and pursuing low-emissions, resilient development (whatever that might mean). It also says the parties shall, “as appropriate”, engage in cooperative and capacity-building activities related to transitioning to a low emissions economy.

On the omission of the words “climate change” from the TPP, the Australian trade minister, Andrew Robb, says: “Well, this is not a climate change policy. It’s not an agreement to do with climate change, it’s a trade agreement.” Environmental group Greenpeace says the chapter as a whole is very disappointing. “There are no new enforcement mechanisms to ensure that countries uphold their own environmental standards, and the mechanisms to enhance environmental performance are only voluntary,” said Emma Gibson, head of program for Greenpeace Australia Pacific.

Labour rights

This chapter draws on the declaration of the International Labour Organisation to articulate labour standards and regulations within signatory countries. It says parties to the TPP should engage in cooperative activity to “enhance opportunities to improve labour standards and to further advance common commitments regarding labour matters, including workers’ wellbeing and quality of life and the principles and rights stated in the ILO declaration”. It also notes “each party recognises the goal of eliminating all forms of forced or compulsory labour, including forced or compulsory child labour”.

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In Australia, trade unions will be paying close attention to the labour rights chapter, particularly in the wake of controversy over comparable provisions in the recent bilateral Australia/China free trade agreement. Looking globally, Rimmer says there will be a lot of discussion as to whether the TPP’s labour rights enforcement regime will be effective and workable. The enforcement provision says this: “No party shall fail to effectively enforce its labour laws through a sustained or recurring course of action or inaction in a manner affecting trade or investment between the parties after the date of entry into force of this agreement.” Rimmer predicts the global labour movement will be unconvinced by the wording. “There will remain much disquiet about the inclusion of Vietnam, Brunei and Malaysia in the agreement. There will continue to be concerns about labour rights, freedom of association, and human trafficking,” he says.

Intellectual property

Any non-lawyerly person contemplating reading the TPP’s intellectual property chapter before they’ve downed a stiff whiskey or some other mind clearing substance is a very brave soul indeed. But read we must, because the IP chapter has been one of the biggest fight clubs of the TPP. In summary, the chapter delivers a stronger regime in copyright protection, trademark and patent law, and sets out rules for “biologics” – pharmaceuticals, in layperson’s terms. The Australian trade minister Andrew Robb says 40 straight hours of negotiation were required at the final meeting to settle the treatment of biologics to Canberra’s satisfaction. The US wanted at least eight years of data exclusivity for biologics, when the Australian standard is five years. The US demand would have meant Australians waiting longer before cheaper versions of pharmaceuticals became available. “We haven’t moved one iota on any of that health area,” Robb says.

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But Patricia Ranald, coordinator of the Australian Fair Trade and Investment Network says the TPP text isn’t open and shut. It opens up the prospect of a review, and further consultations. “Five years is a minimum standard but the text also refers to eight years and to ‘other measures’ which would ‘deliver a comparable market outcome,’ and to a future review. It is not clear how this will be applied in Australia,” Ranald says. But trade consultant Alan Oxley plays down the risk. “That’s called a negotiation, I really don’t think that is significant. Robb had a brief and he held it.”

Rimmer also points to another area of potential controversy in the IP chapter: criminal procedures and penalties in respect of disclosure of trade secrets, computer crimes and espionage. “Such provisions could have a significant impact upon journalists, whistleblowers, and civil society,” he says.

Investment

The TPP aims to free up investment between signatory countries. But the controversy in this chapter will be focussed squarely on the inclusion of an investor state dispute settlement clause. Trade agreements with ISDS clauses are increasingly controversial both in Australia and around the world. These clauses allow foreign investors to sue governments over policies that harm their interests. On Friday, the shadow trade minister Penny Wong said Robb should have “rejected the inclusion of ISDS provisions in the TPP”. Greens leader Richard Di Natale said it was “remarkable that what we are prepared to do is to see big foreign multinational corporations given the power to sue governments for protecting people’s health and the environment”.

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But trade consultant Oxley is unmoved by the backlash. He says the current opposition to ISDS clauses is merely a new focal point for anti-trade liberalisation activists. “Business supports ISDS clauses – no-one in Australian business thinks these are a bad idea. The onerousness of them is significantly misrepresented.” But Ranald cites an often quoted case – the Philip Morris case – as a reason ISDS clauses should be a no go zone. The tobacco firm is taking legal action against Australia’s plain packaging laws. “The general ‘safeguards’ in the TPP text are qualified, and similar to those in other recent agreements which have not prevented cases against health and environmental laws,” she says.

The TPP text recognises it is legitimate to protect “public welfare objectives” and this activity does not constitute “indirect expropriations, except in rare circumstances”. Robb has pointed to these exclusions as significant, preventing potential abuse of the ISDS process. Rimmer points out the general exceptions chapter in the TPP text provides the opportunity for countries to elect to protect tobacco from the investment regime for tobacco control measures. There’s a “but”, though. “However, this is not a complete carve-out for tobacco control measures. Moreover, the agreement does not necessarily provide protection for tobacco control measures from attack under other regimes.”