News from the TPP Stakeholder Briefing

The TPP chief negotiators took questions from stakeholders this morning in Lima, Peru. There were some elements of news scattered among numerous refusals to discuss, verify or explain any proposals or positions in the negotiations. One irony in the secrecy of this process has been the negotiation rules defining what can be transparent have themselves been kept secret. But that may soon change.

We know from the cover pages of the leaked US proposals that there is a memorandum of understanding banning release of discussion drafts until four years after the conclusion of the agreement. That is a baffling rule — essentially meaning that the first four years of implementation, interpretation and dispute settlement cannot benefit from any official legislative history.

At the Chicago round, KEI’s Krista Cox asked Barbara Weisel if the US could share a copy of the memorandum of understanding on secrecy. Weisel confusedly responded that only New Zealand had the instrument. Interestingly, she did not say it is itself confidential.

Here in Lima, Cox asked New Zealand whether it would release the confidentiality memorandum. New Zealand explained that it wants to release a consolidated version of the agreement to the public. (He said the actual instrument is a collection of letters from each country). It thus seems possible that the public will at least get to know the rules of secrecy in this negotiation, even if they can’t see the actual proposals that would trump the laws that are of and for them.

In response to questions about whether each country could choose to release its own proposals, as the US does through its cleared adviser system, the negotiators explained that every Party has the right to establish its own “confidential” system for releasing its proposals. It appears that the secrecy rules would prohibit a country from choosing to release its proposals to the general public.

One cleared adviser from the US chemical industry, industry lobbyist and counsel Robert E. Branand, spoke out in favor of the US system, explaining that all one needed to do to become a cleared adviser and receive all the texts was to “go to USTR and tell them that you represent an industry, company or trade association. It is really very open. I don’t know what you are complaining about.”

Barbara Weisel of USTR confirmed that Canada, Japan and Philippines are in the initial stages of joining TPP. She made it sound quite certain that they would be included some time in the future. This would shift the balance of negotiating countries to a 50%/50% split between OECD and developing countries. Thus far, the alliances forming around IP issues are not along the development axis, however. The US appears to be alone in its pursuit of very high (KORUS+) IP standards for the region. New Zealand and Chile are proposing alternatives for which they hope to attract the support of others. But it is unclear whether they are crafted to fully protect the flexibilities enjoyed by Peru in its current FTA or Vietnam as a LDC. Singapore and Australia may be the closest US allies, but appear to have little appetite to re-write their existing IP agreements with the US, whcih are not at the KORUS level and certainly not at the KORUS+ and ACTA+ level being proposed by the US currently. Peru, Brunai, Vietnam and Malaysia may have not have taken many positions thus far, but appear highly skeptical of the US offers. Philippines would be an interesting addition to this debate as it has a current patent law that contains a provision modeled on India’s Patent Act section 3(d), directly contrary to the new scope of patentability standard in the US offer.

Barbara Weisell refused to answer Sharon Treat, a Maine State Legislator, on whether the US will propose to carve Medicaid out of the pharma pricing chapter. The leaked US proposal does not contain a similar Medicaid carve out as was included in the similar chapter in the KORUS agreement. This was somewhat surprising since Stan McCoy and others at USTR have repeatedly told US stakeholders that the US will not propose to regulate Medicaid by this agreement.

TPP negotiators made no commitment to release any text at any time. They even refused to commit to release a final text before signing the agreement, in response to a question by Margot Kaminski.