We Can Finally See the TPP For Ourselves

Now that it has been released, it will take a while to dig through all 30 chapters, plus annexes, and side letters that constitute the Trans-Pacific Partnership (TPP). I’ve only taken a quick look at a few chapters and, so far, my take is not much different from what it was when the summary of the deal was released back in October. In this blog post at the time, I highlighted four areas of potential improvement:

• investment chapter
• an option to exclude tobacco control measures from the investor-state dispute settlement mechanism
• the elimination of export subsidies, and
• the environmental chapter, especially provisions to prohibit some fisheries subsidies

I’m still not convinced that the investor-state dispute settlement is really necessary or helpful for lots of reasons (more on that another time), but there do seem to be improvements in transparency, access to the process for civil society, and discouraging frivolous lawsuits. And maybe I missed something on the tobacco exception, but I didn’t detect any loopholes. I assume that agricultural export subsidies were eliminated as promised, but I haven’t checked yet

The environment chapter covers a lot of territory so that will definitely take some time to wade through, but it may not be as far-reaching as I had hoped. The language on prohibited fishery subsidies is pretty narrowly drawn:

“subsidies for fishing that negatively affect fish stocks that are in an overfished condition”

And I’ve left out three footnotes in that one phrase that define specific terms. As with everything, the ultimate impact of the provisions on fishery subsidies depend on how they are implemented and enforced. But just the precedent could be important if it contributes to this issue being addressed globally.

I asked my colleague Jonah Busch if he had a quick take on the language relating to forests, and he was not overwhelmed:

On forests, there’s nothing new. The references below are pretty generic and weak. “Addressing” deforestation and forest degradation sounds squishier than “reducing emissions from” which is what’s been long agreed in the UNFCCC.

If there is no side letter on forests with Malaysia, as there was in the earlier bilateral FTA with Peru, that would be disappointing. This will also be something to watch if Indonesia signs up in the future, as President Jokowi pledged during his recent visit to Washington.

On the development chapter, my take hasn’t changed from last month: “sounds like jobs for bureaucrats and lots of talk with little action.”

On intellectual property, my concerns have not been mollified at all. The effective period of market exclusivity for newer, biologic drugs appear to be 8 years instead of 5. Australia may not have to change its domestic law granting 5 years, because it got some face-saving language. But the 5+3 alternative is still expected to provide the minimum 8 years through “other measures.” Vietnam and Peru were able to get a 10 years transition period before they have to implement that provision, Malaysia and Mexico got five. The agreement also appears to include WTO+ provisions on patent linkage, patent protection, and test data protection. Vietnam has to eventually implement the same intellectual property protections as all the other parties, but has an extra 10 years to do so for key provisions.

When I asked my colleague Amanda Glassman for her quick take, she sent a link to this article on the drug patents and access issues that is well worth reading. She also noted the role that limited budgets and high prices play in access to medicines for the poor even in middle income countries:

Of course, there are many ways to deal with monopoly [drug] prices from a public policy and purchasing point of view, but longer periods of exclusivity do not help. The evidence is clear that generics are much cheaper and the flip to generics is the main determinant of access and adoption of new medicines in many middle-income countries.

Of the other concerns I raised a month ago, it’s going to take a deeper analysis to figure out whether Vietnam got much in the way of new market access, and what that in turn might mean for other poor countries in the region. But on my key concern, seeing the full text of the agreement has no impact on the potential for the TPP to seriously undermine the multilateral trade system.