BREAKING: release of full text of Trans-Pacific Partnership Agreement (TPPA) fuels concern over potential loss of sovereignty for TPPA member countries
5 November 2015
[Updated for clarity and correctness on 5 February 2019 — changes shown in square brackets]
The full text of the Trans-Pacific Partnership Agreement (TPPA) has just been released and is available for download here.
Background on TPPA
The TPPA is a wide-ranging agreement between the following 12 countries around the Pacific rim:
The negotiation process, steered by the US, has been secretive. Rumour has it that various large corporations have played a big role in determining the content.
A threat to sovereignty?
One of the main concerns has been a potential loss of sovereignty for participating countries (perhaps other than the US) through the mechanism invoked for settling disputes between a member country and any corporation.
This mechanism for settling country vs corporation disputes is known as Investor-State Dispute Settlement (ISDS). An ISDS court is already set up and operating in Washington DC, USA.
Text on ISDS
Today, for the first time, the role and scope of ISDS in the TPPA can be assessed from the official text. The most relevant text is found in Chapters [9. Investment,] 27 and 28.
[Chapter 9 relates to ISDS tribunals (courts), while Chapter 28 relates to a separate State-to-State Dispute mechanism.]
In my view, two key conclusions can readily be drawn from the text:
1. The scope of disputes falling under the ISDS [and State-to-State] mechanism[s] is enormous
The scope [for the State-to-State mechanism] is set out in Article 28.3:
To first consider Article 28.3.1(c), it appears to be in accordance with the persistent rumours that a corporation can sue a country for loss of any anticipated revenue due to the country changing its laws. Obviously, that is an ominous threat to the ability of the TPPA countries to continue to regulate their own affairs.
Article 28.3.1(a) and (b) are also concerning as, on the face of it, they appear to give a ‘bootstrap’ jurisdiction to the [State-to-State] court to decide the scope of its own jurisdiction! That is, the [State-to-State] procedure must be invoked in order to determine whether or not any given dispute falls under the [State-to-State] procedure.
The broad scope of the ISDS mechanism could have a chilling effect on member countries considering law changes that might disfavour the ongoing or intended operations of a large corporation.
For completeness, I note there is a caveat at the start of Article 28.3.1: “Except as otherwise provided in the agreement.” As of this draft, I have not fully explored how much that might reduce the scope.
2. the setup and jurisdiction of the [ISDS and State-to-State] courts (and indeed, the TPPA as a whole) are not yet fully prescribed and are anyway fluid and will be expected to evolve in a manner that is not readily predictable
Chapter 27 relates to the Trans-Pacific Partnership Commission (TPPC), which is the executive body that will in practice control the operation and evolution of the TPPA as a whole and its ISDS [and State-to-State dispute] mechanism[s] in particular:
The TPPC’s executive role over the TPPA as a whole is established in Article 27.2.1(a):
Article 27.2.1(e) prescribes the TPPC’s control specifically over the [State-to-State dispute] mechanism:
The TPPC will meet regularly to steer the evolution of the TPPA.
Two details on ISDS courts
As one further observation, further detail on the operation of the [State-to-State] courts is set out elsewhere in the TPPA text including, for instance, later in Chapter 12. As two examples:
- if earlier steps seeking reconciliation fail then the final decision on a dispute falls to a Panel convened of 3 officials chosen from a roster of 15 law experts, the Roster Members (see Articles 28.9 and 28.10); and
- Those hearings will normally take place in the capital city of the defending country (see Article 28.12(h)).
Conclusions
To put this text release in context, the TPPA has not yet been formally signed by any of the member countries and it is possible that the TPPA may not come into being after all.
But this release of the full text appears to confirm fears of an agreement broadly in favour of large corporations at the expense of the participating countries.
[END]
My more recent articles on the TPP:
UPDATED on 2019–01–22: Canada, Australia, New Zealand, Singapore, Mexico, Japan, and now Vietnam, have recently fallen under a TPP Federal Government — 7 November 2018
To the Rt Hon Jacinda Ardern, Prime Minister of New Zealand: please call a national referendum on the CPTPP treaty — 25 October 2018
New Zealand’s democracy hangs by a thread as Parliament’s consideration of TPPA treaty enters its final day — 24 October 2018
We have one hour! Or New Zealand will be overthrown by a Trans-Pacific Partnership (TPP) Super-Government — 23 October 2018
We have 5 hours to save New Zealand from overthrow by a Trans-Pacific Partnership (TPP) super-Government; here’s how — 23 October 2018
How New Zealanders can win a referendum on the (CP)TPPA treaty — 9 October 2018
CPTPP Treaty with ISDS now an Existential Threat to New Zealand — 18 August 2018
Superb upcoming anti-TPPA events in New Zealand — 25 January 2016
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