Author: Jane Kelsey

Reflections on the Regional Comprehensive Economic Partnership (RCEP) Round in Jakarta

These are some reflections on RCEP round in Jakarta for those who weren’t there. Japan has become the US in drag, asserting its commitment to implementing the TPPA no matter what and pushing TPPA positions (and sometimes worse) even in areas it initially opposed in those negotiations, such as SOEs and intellectual property. Presumably this is to impress Trump in the hope the TPPA can be resurrected or a bilateral US Japan deal can rise from its ashes, with Japan surrendering once again to the American superpower. Australia and New Zealand continue their mantra that RCEP must be a ‘high quality’ agreement and continue to demand massive commitments from developing countries. They got a lot of pushback this week. Problem is they have nothing to offer in return.  Tariffs into Australia and NZ will be zero by 2020 under the ASEAN NZ FTA. India is hardly fussed with potential access to their markets in return for massive concessions. Both countries have agreements with China and South Korea.  But they have no TPPA. Trying to sell a muted RCEP as a credible substitute would be a further blow to their ideological aspirations, reinforcing the impression they are fighting for a lost cause while leaving their commercial lobbies skeptical and unsatisfied. China as always plays a subtle game. While this is branded as an ASEAN-led agreement, there can be no deal...

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Further evidence of risks from US Certification in TPP: Australia’s experience in the Australia-US Free Trade Agreement

US demanded additional legislation on copyright before it would certify Australia’s FTA compliance  In August 2014 a memorandum and supporting documents published on the website www.tppnocertification.org exposed how the United States uses a process called ‘certification’ to require other countries to implement the US’s interpretation of those other countries’ obligations under their free trade treaties. Unless those countries’ comply, the US will not exchange the diplomatic notes that are necessary to bring the agreement into force. A number of examples showed how the US has used certification to intervene actively in other countries’ legislative processes in recent years. A new memorandum published on http://tppnocertification.org/australias-experience/ sets out how the US demanded additional legislation on copyright before it would certify Australia’s compliance with the Australia US Free Trade Agreement (AUSFTA). That legislation was the subject of an exchange of letters between the trade ministers of each country. The responsible parliamentary committee was given only twenty-four hours to consider, receive submissions and report on the Bill. Stakeholders had three hours in which to make submission. The Bill Digest prepared by Australia’s Parliamentary Library said ‘Parliament might note with concern the process that has preceded this Bill. Through the Vaile–Zoellick correspondence, the Government has effectively created new obligations for Australia. … The lack of Parliamentary involvement or scrutiny of the negotiations leading to the Vaile–Zoellick correspondence stands in sharp contrast to the involvement...

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Website Documents How US Could Use ‘Certification’ to Write TPPA Countries’ Laws

A new website has been launched today (www.tppnocertification.org) that documents the extraordinary process of ‘certification’ through which the United States claims the right to vet and approve other countries laws before it will allow a trade and investment treaty to come into force. This process has existed for many years, but it has been used more intensively in the past decade because Congress was dissatisfied with how some countries had been implementing their US free trade agreements. The draft Fast Track legislation introduced to Congress several months ago contains a new and extensive certification provision: CONSULTATIONS PRIOR TO ENTRY INTO FORCE – Prior to exchanging notes providing for the entry into force of a trade agreement, the United States Trade Representative shall consult closely and on a timely basis with Members of Congress and committees as specified in paragraph (1), and keep them fully apprised of the measures a trading partner has taken to comply with those provisions of the agreement that are to take effect on the date that the agreement enters into force. Very little has been known about certification, even by negotiators. A comprehensive memorandum on certification explains the certification process and how it has been used. The website also reveals the extraordinary degree of intervention by the US Trade Representative (USTR) in the drafting of Peru’s laws as part of the certification process for the...

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TPPA Ministers Set to Make Crucial IP Decisions This Weekend in Singapore

The intellectual property chapter of the Trans-Pacific Partnership Agreement that Wikileaks posted in November signaled over 100 areas of disagreement. Those ‘square brackets’ have been rapidly disappearing in the lead-up to the ministerial meeting in Singapore this weekend, according to Professor Jane Kelsey, who is in Singapore monitoring the negotiations. ‘By the start of the officials’ meetings on Monday the 100-plus points of disagreement in last year’s intellectual property text had already been whittled away. I understand there have been further major decisions already this week, even before the ministers meet’, Kelsey said. ‘There is talk about the US making compromises and showing flexibility. This is an old trick. They set the original threshold outrageously high. Then they agree to “concessions” that are still far beyond the status quo. The result is new rules that profit Big Pharma at the expense of access to affordable medicines and protection of public health’. One of the most crucial remaining decisions for TPPA ministers is the US demand for new rules that would give the pharmaceutical companies longer monopoly terms, including for patents, and delay the entry of new generic medicines to treat diseases like cancer and diabetes. News reports say the US presented a proposal in Salt Lake City that sought 12 years of exclusivity, as applies in the US. Other countries laws currently allow for 8 years, as in Japan,...

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Crunch Time for TPPA at Salt Lake City Meeting 19-24 November

For immediate release: 11 November 2013 ‘Every ounce of political pressure will come on the negotiators during a special round of talks on the Trans-Pacific Partnership Agreement (TPPA) that are scheduled for Salt Lake City from 19 to 24 November’, according to Professor Jane Kelsey from the University of Auckland. The meeting comes two weeks before the TPPA trade ministers will reportedly convene in Singapore from 7th to 9th December, immediately following the World Trade Organization ministerial conference in Bali. The US Trade Representative has billed this as a meeting of ‘chief negotiators and key experts’ from the 12 countries. That is an euphemism for the entire negotiating teams on three main chapters where there are still major unresolved issues – intellectual property, state-owned enterprises and investment – and possibly others, such as government procurement, rules of origin, and legal issues. Those groups have already met during the last month and most have made limited progress. ‘This is clearly crunch time’, Professor Kelsey said. ‘The meeting aims to present the ministers with a platform for making political trade-offs, including on agriculture.’ ‘The chapters on intellectual property and state-owned enterprises are still stuck. The US continues to make extreme demands. Countries who believe this will impose an unacceptable price on their countries are still holding out.’ ‘A breakthrough on any of these areas would either mean the other countries have...

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