13 FEBRUARY 2011: Four-day talks between Australia and Japan on bilateral trade suggest that popular Japanese oppositon to agricultural reforms will continue to stand in the way of Tokyo negotiating in the TPP.
The talks, which just ended and were the first on trade between the two countries since April last year, have been described by Australian negotiators as 'useful discussions', but it does not appear any breakthrough was reached over Japan's continued subsidies to its wheat and rice farmers.
A full piece on the talks from AFP follows below.
20 JANUARY 2011: The Sydney Morning Herald reports that Phillip Morris may be using Australia's shift to implement plain packaging on cigarettes and tobacco as an example of 'extreme and disproportionate' legislation that the TPP should be able to challenge through 'investor-state' provisions.
Australia's Labor government announced last April that cigarettes would have to be sold in plain packaging from mid-2012, which would be a world first.
In a submission on the proposed trade agreement to the US Trade Representative, Philip Morris described the plain-packaging laws as an 'initiative of concern' which would allegedly violate international law and intellectual property rights.
Australian Minister for Trade Craig Emerson has offered no committment either way on the inclusion of investor-state provisions in the TPP, but has indicated that an attempt by any tobacco company to undermine Australian anti-tobacco legislation would be so much 'whistling in the wind'.
Thomas Faunce of the Australian National University has suggested in a paper for the Medical Journal of Australia that in the event of such provisions being included, Australia and other countries could initiated an interpretative declaration limiting their effect on the area of public health. Alternatively, he suggests a clause in the agreement could require that non-discriminatory legislation in the pursuit of public health and safety not be deemed expropriatory or compensable for damages.
19 JANUARY 2010: Inside US Trade reports that the US will hold off tabling a full and formal chapter on IP rights at the next round of TPP talks in Chile because of a need to carry out intra-agency and congressional consultation on areas of potential controversy.
An official reportedly indicated 'very wide' differences of opinion among US stakeholders, and is urging private-sector ones to handle suggestions on how to best handle hotter topics.
It is understood that one such contentious area is that of 'secondary liability' on Internet firms for violations of copyright by individuals. The US was intending to include this in the Anti-Counterfeiting Trade Agreement (ACTA), but the final language of that text as of August last year made the imposition of secondary liability on Internet firms optional. Secondary liability is strongly advocated by US movie and recording industry producers.
Further complicating the issue is the May 10 2007 agreement between the then-Bush administration and House Democrats on IPR, which relaxed stringent provisions on data exclusivity, patent linkage, and patent term extension. US industry groups oppose the retention of these relaxed provisions in the TPP context.
Overall, US private-sector groups say IP has been one of the slowest progressing areas of discussion in TPP talks to date. As previously reported, NZ has already drafted a paper opposing US approaches on IP and suggesting that the protections in TPP be limited to those already established under the multilateral WTO TRIPS agreement.
However, other sources are indicating Australia may end up being an ally of the US in the push for stronger IP protections. Additionally, sources have speculated that NZ's stance on IP is a negotiating tactic which they may relent on should they get the agricultural and dairy access in the US market they desire.
Professor Jane Kelsey has criticised the bid by USTR negotiatiors to make secondary liability a part of TPP intellectual property provisions. She released the press release below the break, warning that the move could 'reignite the hugely successful international campaign against secondary liability that followed the leak of the (local) ACTA text', on January 17.
21 DECEMBER 2010: Australian fair-trade activism network AFTINET has neatly extracted and summarised the Australian Productivity Commission's findings on the shortcomings of current free-trade agreements (for reading here), while the findings have raised waves in neighbouring New Zealand.
Dr Russel Norman, co-leader of the Greens, says that the compounded effect of the recent Wikileaks showing official doubt of the benefits to NZ of any negotiated agreement and the APC report show that both the current National government and the preceding Labour government have 'over-hyped' their free-trade acheivements and back the Greens' previous stance that the TPP should contain no investor-state dispute provisions.
Speaking to Radio New Zealand's Morning Report about Norman's comments, Trade Minister Tim Groser said the Australian body's report was of no relevance to New Zealand, although he admitted that analyses of some previous FTAs, such as NZ-Singapore, would have shown fewer economic benefits.
He also defended the notion of having investor remedies against governments in trade partnerships:
TG: "A lot of New Zealand investors are always worried about...if we put our money into China, or...India. or into Brazil, what protections have we got around arbitrary law changes?...Investor disputes are very important to New Zealand...we have what we call in trade negotiations an offensive interest."
"I think it's perfectly plain that all New Zealand needs to know is that New Zealand has suffered from an inability to crack open markets, and any trade agreement that moves us in the right direction is worth doing, and frankly, whether it's a benefit of half a billion, or three-quarters of a billion, doesn't alter my judgment on that underlying issue one bit."
15 DECEMBER 2010: Australia's Productivity Commission has released its final version of a report on the benefits and drawbacks of free trade agreements, after releasing a draft for consultation in July.
The 392-page report says that "businesses have provided little evidence that Australia's bilateral and regional trade agreements have generated commercial benefits".
Specific criticisms of existing models have been that:
- Selection of prospective partner countries is not prioritised or co-ordinated strategically;
- Other options were not adequately assessed before bilateral trade agreements were entered into;
- Modelling results pre-negotiation were used to oversell the benefits of the agreements;
- Consultation once negotiations had started were inadequate;
- Parliament is often poorly placed to handle the outcome of talks.
Furthermore, the Commission recommended that agreements should not guarantee foreign investors special provisions 'over and above those already provided by the Australian legal system', should not contain IP provisions as a matter of course, and that the government should be cautious about including labour standards and exclusions on cultural grounds.
It has also recommended that bilateral deals be subject to independent analysis after they are completed and before they are signed, a suggestion which has attracted the ire of some other negotiating partners who believe this could undermine Australia's negotiating position in future talks.
The full report can be read here. Canadian IP law expert Michael Geist has summarised the relevant areas of the Commission's report relating to intellectual property provisions on his blog, while Aftinet has issued a press release heralding the report. The transcript of an ABC news report about the Productivity Commission's findings appears below.
4 DECEMBER 2010:
Ahead of the commencement of the fourth round of TPP talks at Auckland’s SkyCity convention centre, Australian and New Zealand civil society groups have issued a press release urging Prime Ministers Julia Gillard and John Key to adopt a progressive and balanced approach to foreign investment during the talks.
A joint letter signed by 43 organisations urges Australian and NZ negotiators to reject anticipated US demands for the sort of investor-state enforcement mechanisms included in previous US FTAs.
Australia previously refused to incorporate such agreements in its 2005 FTA with the US. Professor Jane Kelsey, who coordinated the open letter on New Zealand’s side, has applauded the steps already taken to dismiss the idea of such provisions by both governments, but suggests that Australia and NZ go further by negotiating an agreement that “that rebalances investor rights with enforceable responsibilities and restores the primacy of national sovereignty and democratic control over investment-related decisions”.
The letter can be read here. A press release covering the rationales behind the letter appears below.
13 OCTOBER 2010: Inside US Trade reports that USTR, following the recommendations of a business coalition draft document, may be putting forward the US's own central co-ordinating body on regulation forward as a model to other TPP partners.
Currently, the US Office of Information and Regulatory Affairs (OIRA) takes a primary role in the US rule-making process - a federal agency wanting an issue a rule or regulation must comply with its requirements, including that a cost-benefit analysis of the rule is undertaken, and that the value in not regulating is also considered.
The US business coalition say the adoption of an OIRA-style body by other TPP partners would help regulate the decisions and reforms made across their government agencies and departments, ensuring they abided by the requirements of a TPP treaty.
However, civil society groups are wary of the effects of establishing such bodies. Sean Flynn of American University's Washington College of Law has warned that the US's current regulation oversight model was 'decades' in the making, and that the effect of imposing such an advanced model on developing countries in the talks, such as Vietnam, would be potentially destabilising.
A further concern is that there are currently no undertakings on whether the cost-benefit analyses envisaged would extend beyond trade costs (ie: to health, safety, labour and environmental concerns). Additionally, some groups have warned that strict regulatory coherence provisions would limit the ability of TPP members to regulate in the national interest - noting that Australia and New Zealand, both parties to TPP, have taken an aggressive stance on regulatory coherence in the multilateral Doha talks. As noted last week, New Zealand will be preparing a document on regulation for the fourth round of talks in Auckland, in December.
In comparison, the US approach to regulatory coherence at Doha has been less strict - it has opposed the 'necessity test' (requiring that regulations passed be 'no more burdensome than necessary') proposal that the two Australasian partners have previously supported.
21 SEPTEMBER 2010: The Sydney Morning Herald reports that a survey of a number of businesses by the Australian Chamber of Commerce and Industry has found that a number of them no longer see the benefit in the federal government negotiating free trade agreements.
The survey suggested that many businesses feel they have gained little in the way of market access and measurable benefits from the agreements ratified to date. Furthermore, they believe they are gaining more from direct trade measures (ie: grant schemes for exporters) than from the intricacies of multiple trade deals.
The Chamber's survey comes as part of a submission to to the Australian Productivity Commission, who were asked by the government last November to inquire into the benefits of bilateral and regional trade deals. In July, the Commission released a draft report of their findings suggesting future national income flowing from such deals was likely to be 'modest'.
The response from the Chamber comes as the newly appointed Trade Minister, Dr Craig Emerson, travels to Washington DC to meet with his US counterparts and attend the Global Services Summit. Trade Ministers from New Zealand and Malaysia will also be in attendance. Dr. Emerson has announced that he hopes to promote both global services trade reform and new support for the Doha Round during his visit.
10 SEPTEMBER 2010: Following the TPP intersessionary talks in Peru, where the US indicated its preference for leaving existing FTAs in place while negotiating afresh with new trading partners, the NZ Minister of Trade, Tim Groser, has expressed concern about New Zealand's ability to gain the most advantageous deal out of the talks.
Australia's original FTA with the US was considered less than ideal, due to the exclusion of areas such as dairy and sugar. Groser told Radio New Zealand that he believed that under the preferred US arrangement, it would be harder for NZ to negotiate an agreement with the US that improved on the Australia-US FTA.
15 SEPTEMBER 2010: Following its recent general election, Australia's Labor government has reshuffled its Cabinet, replacing Simon Crean as Minister of Trade with Dr. Craig Emerson. Dr. Emerson, who previously worked as an economic adviser to the United Nations, and served as the Minister for Competition and Consumer Affairs in Kevin Rudd's government, has previously strongly criticised the Howard-era system of bilateral trade-agreements, especially the Australia-US FTA, as "a paperwork nightmare for exporting and importing businesses". He has also advocated continued multilateral negotiations through the WTO system, saying that "trade policy should revert to the principle of non-discrimination that formed the cornerstone of the world trading system before the rise of preferential deals".
Speaking to Sydney's 2GB radio station on September 14, Dr. Emerson indicated that Labor policy would not re-erect any of the tariff barriers removed on imports since Bob Hawke's 1980s government, and indicated continued strong support for foreign investment into Australia:
“We live in a global economy, and we do need foreign investment…we want Australia to remain an attractive place for foreign investment. We still get a lot of benefit out of big projects and enterprises that are partly or even wholly foreign-owned in this country… Of course there are some areas, Ross, in the economy, where people are more sensitive about foreign investment, that’s natural, but I think as a general presumption, we should be in favour of foreign investment, not against it.”
19 JULY 2010: A draft research report by the Australian government's independent Productivity Commission has suggested that the national income flowing from future bilateral and regional trade agreements 'is likely to be modest'.
The report, released online last Friday, suggests that the Commission has received little evidence from Australian business to show that preferential agreements of this sort have provided substantial commercial benefits, and that current processes for assessing and prioritising such agreements "lack transparency and tend to oversell the likely benefits". Among its recommendations, it suggests Australia continue to pursue progress in the Doha Round, while carrying out full and public assessments of proposed agreements after negotiations have concluded, and that a cautious approach be taken to provisions on IP, investor-state dispute settlement, labour standards and cultural matters.
The government is expected to receive the Commission's final report in November 2010. The draft, meanwhile, can be read here.
17 JUNE 2010: Australian unions, health and environment groups have joined forces to warn of the potential consequences for the Australian Pharmaceutical Benefits Scheme (PBS) and for the regulation of tobacco advertising if the TPP goes through. AFTINET say that submissions from US pharmaceutical companies to the USTR are seeking changes that could raise the whole sale price of medicines, and that the introduction of an investor-dispute mechanism to a settled agreement would mean tobacco companies could challenge moves that retrict access to or visibility of their products. Their full press release follows below the break. A launch was held at noon on Wednesday for an accompanying pamphet outside the NSW Parliament House, featuring speeches from investor-state dispute academic Dr Kyla Tienharra, as well as Greenpeace and the Australian Manufacturing Workers Union.
10 JUNE 2010: Though the escalating Gulf of Mexico oil crisis has seen Barack Obama cancel his engagement in Indonesia and cast doubt upon a subsequent visit to Australia, TPP and 'spaghetti bowl' sceptic Bernard K. Gordon wrote at length about both destinations at the start of the month on East Asia Forum. He focuses on US and Indonesian trade relations, but also notes that recent incidents in North Korea will be shifting the Obama Administration's focus above the Equator of late.
On the TPP, Gordon is more strident (the full article may be read here):
"...Other US trade venues, the WTO Doha Round, the Korea FTA, and possible FTAs with ASEAN members, are not being forgotten and will be pursued if opportunities arise. But the TPP effort –representing Australia, Brunei, Chile, New Zealand, Peru, Singapore, the US and Vietnam – now tops Washington’s trade agenda. Singapore and Australia have long been important American trade partners, but as a group the TPP is no heavyweight. Its merchandise trade with the United States last year was US$110 billion, while total American exports and imports combined represented US$2.6 trillion. The TPP, in other words, accounted for just 4.2 per cent of America’s trade, and no partner is even in the top 10 of US export markets. Why then is Washington so energetically promoting the concept?
13 APRIL 2010:
The Australian Department of Foreign Affairs and Trade (DFAT) have released a formal briefing on the first round of TPP negotiations. It solicits further comment from 'stakeholders' on the areas of Financial Services, Investor-State Dispute Settlement, Regulatory Coherence, and ensuring benefit accrues to small-to-medium sized enterprises from the TPP. It also describes the March round as being 'productive', while confirming further rounds of negotiations in June, October and December 2010, with the aim of completing negotiations by the end of 2011. The DFTA briefing can be read here
APRIL 2 2010: The possibility of a broad regional trade agreement in the Pacific is reportedly leading Australia, New Zealand and Singapore to consider reopening the market access arrangements in their own existing bilateral trade agreements. While sources are suggesting this is being done with an intention of creating a single, unified market access schedule to eliminate a 'spaghetti bowl' effect ahead of a TPP Agreement, a USTR official has already expressed doubts about reopening these agreements at a sensitive time. An Inside US Trade story follows below the break...
The Office of the United States Trade Representative has just released its annual 'hit list' for 2010 on subsisting trade barriers in its trading partner countries. All seven of its current negotiating partners in the TPP are reviewed, with all having particular areas where the US argues further reform, liberalisation, or transparency is needed. These include pharmecutical goods, audiovisual and media services, tariff barriers, investment rules, e-commerce, and legal services. All 2010 USTR profiles can be found on the respective country page on this site, and below.
USTR report on NZ's Foreign Trade Barriers, 2010
USTR report on Australian Trade Barriers, 2010
USTR report on Chilean Trade Barriers, 2010
USTR report on Brunei's Trade Barriers, 2010
USTR report on Singapore's Trade Barriers, 2010
USTR report on Peru's Trade Barriers, 2010
USTR report on Vietnam's Trade Barriers, 2010
Senior columnist for the Melbourne Age Kenneth Davidson has written of his general concerns for the repercussions free trade agreements have on domestic democracy and the commodification of labour, while also expressing concern about the secrecy and lack of engagement surrounding the initial round of negotiations. The article can be found online here, or below the break.
26 MARCH 2010 -
John Ballingall, the deputy chief executive of the New Zealand Institute For Economic Research
, has responded to the NZ Herald
opinion piece by Bernard Hickey
on the disadvantages of a free trade agreement with the United States. He argues that the agreement is between multiple countries rather than one between the United States and New Zealand alone, and that while dairy will be a matter of tough negotiation, it cannot be absolutely blocked in any final agreement. The full, annotated version of Ballingall's article is available online here
MARCH 19 2010:
In sidetalks to the first round of TPP negotiations, Australian Trade Minister Simon Crean has met with his Colombian counterpart, with indications it wishes to become the ninth nation involved in the Partnership Agreement.
MARCH 16, 2010: At the start of the month, Australian Ambassador to the US and former PM Kim Beazley indicated that negotiations to to create a TPP agreement would put all issues 'on the table' and not retain exemptions from market access they have kept in existing agreements to date. According to Beazley, all countries that are currently participating in
the TPP talks shared the view that all issues will be open for discussion at the outset of the talks. Now his words are being echoed by Australian Trade Minister Simon Crean, as this Sydney Morning Herald article (also featuring comment from Aftinet's Dr Pat Ranald) reports...
MARCH 15, 2010: Trade unions from across the Pacfic have called for a fairer trade agreement network today, fearing the possible outcomes of an 'everything on the table' agreement. New Zealand's Council of Trade Unions has been keeping counsel with its counterparts in the US and Australia. The joint declaration of the combined TPP unions (Australia, NZ, Singapore, USA) can be read here. The individual unions, including CTU have issued their own statements.
MARCH 15, 2010: Barack Obama is due to meet with his Australian counterpart, Kevin Rudd, on March 26. The whirlwind stop in Canberra is likely to cover the by-then complete negotiation rounds in Melbourne for the TPP agreement. While Obama is quick to hail the 'model alliance' between the US and Australia, serious doubts are rising in Rudd's capital about the lack of consultation and analysis going ahead into the negotiations, as an excellently-argued Canberra Times op-ed by Professor Thomas Faunce expresses today...
Officials from Australia, Brunei, Chile, New Zealand, Peru, United States, Vietnam have begun talks toward the TPP in Melbourne, a move pro free-trade commentators are marking as a push for the APEC group of nations toward the long-term goal of an Asia-Pacific free trade zone. The talks are estimated to cover 470 million people, with a combined GDP of USD$16 trillion. New Zealand is sending a delegation of 15 to the talks. More below the break...(Radio New Zealand's report can be accessed here
MARCH 14, 2010 - With TPP Negotiations set to commence in Melbourne on March 15, over 30 community and union groups have combined to make an appeal to the Australian government and Trade Minister. They ask that any completed agreement safeguard the Pharmaceutical Benefits Scheme, Australian local content in media, regulation of GE food, regulation of foreign investment and industry policies that support local employment. The joint statement follows below the break.
Inside US Trade, March 2 2010
Australian Ambassador Kim Beazley today (March 2) signaled that
negotiations to create the Trans-Pacific Partnership (TPP) agreement
should put all issues on the table and not automatically keep in place
exemptions from market access commitments contained in current free
trade agreements the U.S. has with some of the countries now
participating in the TPP negotiations.