The full text of the Trans-Pacific Partnership agreement was released by the Government on November 5, 2015 and we asked for your help in analysing it. We received many detailed submissions, on topics ranging from copyright to Swiss cheese.
You told us what you found interesting, what has been under-reported and those issues you feel need further explanation.
We then put the Australian political debate to one side, and sought the views of experts across the world.
Whether you are a farmer, businessman, activist or concerned citizen, ABC Fact Check has consulted experts about your TPP questions.
Check out the topics that you nominated below.
The basics The Trans-Pacific Partnership, or TPP, is a trade and investment agreement that has been entered into by twelve Pacific Rim countries: Australia, the United States, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam. Negotiations began in late 2009, and were concluded with agreement on October 5, 2015. The leaders of the TPP countries claim that it will "promote economic growth, support higher-paying jobs; enhance innovation, productivity and competitiveness; raise living standards; reduce poverty... and... promote transparency, good governance, and strong labour and environmental protections". After much speculation about the content of the agreement and a leak of a draft by Wikileaks, all 30 chapters of the final text were officially released on November 5, 2015. The TPP goes further than traditional bilateral agreements between countries. It seeks to create a free trade area in the Pacific, through the reduction of trade barriers and making laws and regulations more consistent between signatory countries. Donald Robertson, a specialist in international commercial law and arbitration and a partner of global law firm Herbert Smith Freehills, tells Fact Check that: "The TPP is not just a free trade agreement, it is a regional governance document. It is a recognition that we live in a globalised economy, where goods and services are developed through cross-border collaboration. It is an opportunity for Australia to be involved in setting the rules for free trade in the Asia Pacific." The TPP lays out a set of rules that should be common to all TPP countries — it does not override local laws. Where the laws already in place differ from the TPP, the treaty requires individual governments to change those local laws so they are consistent with the TPP. How and when it starts Even though governments speak positively about the TPP, it will not take effect until it has been officially signed and then ratified by each country using local processes. In Australia, the TPP needs to be tabled in Parliament for at least 20 joint sitting days and after that it is considered by the joint standing committee on treaties. A vote in Parliament occurs if legislation is required to change existing laws (for example, on tariffs), to ensure compliance with the TPP. The Government expects that enabling legislation will be required. The TPP comes into force 60 days after one of the following occurs: all of the 12 countries have ratified the treaty, if that occurs prior to October 2017; or six of the countries (representing up 85 per cent of the combined gross domestic product of the TPP countries) have ratified the treaty, if all 12 had not ratified by October 2017. Processes vary in other signatory countries, not all of which are overseen by democratic institutions. The TPP is scheduled to come before the US Congress in 2016. Under "fast track" provisions, the Congress cannot amend the agreement (its members can only vote for or against) but has to be given at least 90 days to consider it before a vote is held. Dr Malcolm Jorgensen, a research associate at the United States Studies Centre of the University of Sydney suggests that "the White House hopes to pass the deal through the Congress as early as February 2016 to minimise possible opposition". "The more likely scenario is that the deal will not be voted on until the so-called 'lame-duck' session – after the November 2016 election, but prior to Obama leaving office in January 2017," he said. Copyright laws A number of submissions were received relating to copyright, raising concerns that the TPP will give copyright holders in the United States a longer period of copyright protection, entitling them to higher levels of royalties. The Government denies this will occur: in October 2015, the Government said that it will not need to change any of Australia's intellectual property laws (the laws that govern copyright, trademarks and patents) as the TPP's IP provisions are "consistent with Australia's existing intellectual property regime". The copyright provisions are located in Section H of Chapter 18 of the TPP agreement. Under Article 18.63, the term of protection of a "work, performance or phonogram" is calculated in one of the following ways: life of the author plus 70 years not less than 70 years after the first "authorised publication" of the work, performance or phonogram if there was no authorised publication within 25 years of its creation, 70 years after the creation of the work, performance or phonogram. Experts say this is no different from the current copyright rules in Australia — it is consistent with the requirements in sections 93 of the Commonwealth Copyright Act 1968, which says protection of a sound recording lasts for 70 years after the first publication, and section 94, which says the same for film. Historically, Australia had shorter copyright protection periods than the United States, but these were extended at around the time Australia entered into the Australia-United States Free Trade Agreement in 2004. Copyright laws vary in other TPP countries. Chris Jordan, a partner of intellectual property law firm Davies Collison Cave, tells Fact Check: "Australia's copyright laws are already essentially compliant with the relevant parts of the TPP. The effect of the TPP is to significantly harmonise many aspects of copyright law in the Asia Pacific region." Illegal downloads Concern has been raised that the TPP will allow US companies to target illegal downloaders aggressively, seeking information from internet service providers (ISPs) that allows them to identify the account holders who download copyright material. Fuelling this concern is the recent series of court cases between the owners of the copyright in the film Dallas Buyers Club and Australian ISPs. Those cases came about when the Dallas Buyers Club owners sought to use a normal court process — preliminary discovery, or pre-action exchange of information — to obtain from ISPs the details of accounts connected to illegal downloads of the film. In April 2015, Justice Nye Perram of the Federal Court found that, in principle, the Dallas Buyers Club owners were entitled to these details. But his Honour stopped the handover of the information until the court was satisfied with the type of letter that Dallas Buyers Club planned to send to the downloaders. The Dallas Buyers Club cases indicate that copyright holders can use the preliminary discovery process to get the information they want, but the court still can restrict access depending on how the copyright holders plan to use the information. Article 18.82(7) of the TPP says the following: "Each Party shall provide procedures, whether judicial or administrative, in accordance with that Party's legal system, and consistent with principles of due process and privacy, that enable a copyright owner that has made a legally sufficient claim of copyright infringement to obtain expeditiously from an Internet Service Provider information in the provider's possession identifying the alleged infringer, in cases in which that information is sought for the purpose of protecting or enforcing that copyright." Fact Check asked Gary Cox, chairman of intellectual property law firm Wrays, about whether the TPP imposes more onerous requirements for online copyright infringement than the existing Australian law. If it does, then the Australian government will have to make changes to local laws. "The enforcement provisions of the TPP are generally in line with Australian law, and therefore are unlikely to provide a basis on which potential infringers can be targeted more aggressively than before," Mr Cox said. However, Mr Cox also noted that while the process used in the Dallas Buyers Club cases arguably satisfies Australia's obligations under the TPP "others may take the view that the TPP imposes an obligation on Australia to allow copyright owners to obtain this information from ISPs in a more straightforward and customised manner". David Webber, partner of Davies Collison Cave holds the view "the TPP does not change anything in relation to online copyright violation in Australia". For its part, the Government says that the TPP does not "include criminal penalties for downloading music, movies or TV shows, or making temporary copies". It also says that the agreement "does not require internet service providers to monitor, report and penalise breaches of copyright infringement". Sources also point out to Fact Check that Australian content producers may benefit from the TPP if it requires countries with weaker copyright protection to improve their local laws. Medicines There has been concern that the TPP will require a change to Australian law that may increase the cost of pharmaceutical products. The Government says that the TPP "will not require any changes to Australia's Pharmaceutical Benefits Scheme and will not increase the price of medicines for Australians". Developers of new medicines usually obtain a patent that protects their rights in the drug for a certain period. In Australia, it is usually 20 years but an extension of up to five years can be granted under some circumstances. Given that a patent can be obtained early in the development process, in some cases the patent may be close to expiry by the time a medicine is approved for sale. In addition to the patent system, in Australia drug companies are also granted a period of "data exclusivity" of five years from the date of approval for sale. During this period, the trial data that the government used to approve the drug cannot be used by a generic manufacturer to justify the approval of its product. Why does data exclusivity matter? According to Gary Cox, chairman of intellectual property law firm Wrays, a data exclusivity period "can theoretically prolong a manufacturer's monopoly beyond the life of the patent if the patent expires before the data exclusivity period" which could delay the introduction of cheaper generic medicines. However, Mr Cox also notes that with a standard patent term of 20 years, it is "much more likely" that the data exclusivity period will expire before the patent does. While the TPP provides a data exclusivity period of 5 years for standard pharmaceutical products (consistent with Australian law), the debate is centred around the treatment of "biologics" in the agreement. A biologic is "a type of highly complex medicine created by biotechnology processes" and a generic version of a biologic medicine is called a "biosimilar". In the United States, there is a 12-year data exclusivity period for biologics, which is a clear contrast to Australia's five-year period. Fact Check understands that the United States pushed for the 12-year period to be adopted by all countries. However, Article 18.52 in the final text instead provides for data exclusivity period for biologics of: eight years or five years if accompanied by "other measures" and recognition "that market circumstances also contribute to effective market protection". Michael Caine, a patent attorney with Davies Collison Cave, tells Fact Check that: "It is unlikely that Australia [has] to change the existing law. We already comply with the second option of five years plus other measures. For 'other measures' the Government already compensates patent owners for delays in the drug approval process by extending the patent term when appropriate. This scheme for extending patent terms provides special extension opportunities limited to patents relating to biologics. The time it takes for a biosimilar (generic) to be approved may also be taken into account when considering how long the market exclusivity period is in practice." However, some commentators, such as Deborah Gleeson, a lecturer in public health at Latrobe University, suggest that "the legal language provides room for the United States to continue to pressure the other TPP countries" to keep biosimilars off the market for eight years. Moving to an eight-year period would require a change in Australian law. The Government says it does not need to make such a change to comply with the TPP. Climate change Some have queried why the TPP's Chapter 20 on the environment does not mention climate change. Craig Applegate of the University of Canberra tells Fact Check: "It would not be normal for a preferential trade agreement to consider carbon emissions and global warming. These issues would be more properly dealt with at a global level such as the Paris meeting." Gary Hufbauer, senior fellow at the Peterson Institute for International Economics in Washington DC and an international trade specialist, said that the TPP negotiators would have been aware that the United Nations Conference of the Parties (the group of Kyoto signatories that held the recent Paris conference on Climate Change) was dealing with an agreement on climate change. Australian Joshua Meltzer, a Senior Fellow in Global Economy and Development at the Brookings Institution in Washington DC, recently testified to the US House Ways and Means Committee about the TPP, where he put the following view: "The TPP environment chapter does not mention climate change. This does not mean however that the TPP does not include commitments that are good for the climate... Because the TPP reduces most tariffs on all goods to zero over time, the TPP will increase access to climate change technologies. The TPP will also addresses non-tariff barriers, including those applying to climate change goods and services." Corporations suing governments Perhaps the most controversial part of the TPP is the Investor State Dispute Settlement (or ISDS) mechanism. It will allow an "investor" in a foreign country to bring arbitration proceedings against the foreign government, if certain investor protections in Chapter 9 of the TPP on investment are not complied with. The ISDS process is set out as follows: Attempt is made at resolving the issue through consultations; If a dispute has not been resolved within six months of a written request for consultations, the dispute can proceed to arbitration. A written notice of intention to submit an arbitration claim must be delivered at least 90 days before submitting a claim to arbitration Arbitration can occur under the rules of the International Centre for Settlement of Investment Disputes (ICSID) Convention, the arbitration rules of the United Nations Commission on International Trade Law (UNCITRAL) or, if both sides agree, other arbitration rules. The Government says that ISDS provides "an opportunity for investors, including Australian investors, to protect their investments overseas against expropriation and to ensure that they are afforded a certain minimum standard of treatment, and treated in a non-discriminatory manner". Professors Luke Nottage and Leon Trakman, of the Universities of Sydney and NSW respectively, say that: "If the host state discriminates, seizes a foreign investment or renders it largely worthless without paying adequate compensation, or denies justice in local courts, the investor can use ISDS to bring a direct claim. ISDS helps depoliticise disputes and encourages a rules-based framework for investment, especially in developing countries." In submissions made to the ABC, your criticisms of the ISDS provisions centred around three points: Arbitrators are not independent and are not bound by legal precedent. Foreign companies will be able to take action against Australia's laws on health, the environment and other public policy areas. Claims will be brought to put pressure on the Government. Fact Check has examined each of these in separate sections. Jeremy Sharpe, a London-based partner of US Law firm Shearman & Sterling and a former chief of arbitration at the US State Department, tells Fact Check: "To bring a successful TPP claim, it is not enough for the investor to allege that a government measure hurt its bottom line. Rather, an investor has to establish that the state breached a specific substantive obligation contained in the investment chapter and that the state's unlawful measures actually caused the investor's damages." "Even if the state is found in breach of an international law obligation in the TPP, an arbitral tribunal cannot require the government to change any laws or regulations," Mr Sharpe adds. The ISDS provisions are also available to Australian businesses, which can potentially bring arbitration proceedings against other TPP countries. Setting precedents Remy Davison of Monash University says that Investor State Dispute Settlement (or ISDS) provisions "are not a new phenomenon", noting there "are more than 2,700 international agreements that include ISDS provisions". There are already ISDS provisions in trade agreements between Australia and China, South Korea, Chile, Singapore, Thailand and ASEAN and in investment protection and promotion agreements between Australia and 21 other countries and territories. Luke Nottage and Leon Trakman, of the Universities of Sydney and NSW say that "other TPP partners are generally comfortable with ISDS, as are countries like Korea and even China, which may eventually join this [agreement]. Present TPP partners supportive of ISDS include major outbound investors like Japan and especially Singapore, and to a lesser extent Brunei and Malaysia". "Overall, the TPP's ISDS-backed commitments are quite similar to those in Australia's free trade agreements since 2003. These, in turn, are largely modelled on treaties between third parties and the US, which has never been subject to a successful ISDS claim," they say. International arbitration specialists Audley Sheppard QC and Sam Luttrell of international law firm Clifford Chance tell Fact Check that it is harder to bring actions under the TPP than under ISDS-like provisions in earlier treaties. They say: "The TPP has been carefully negotiated to ensure that member states are well positioned to defend themselves against ISDS claims. The TPP contains a wide array of exceptions, carve-outs and reservations that condition and limit investors' recourse to ISDS and protect the rights of states to take measures for legitimate public purposes — more so than earlier generations of investment treaties (particularly those of the bilateral variety — "BITs" — that have formed the basis of most of the ISDS decisions against states in the past decade). Any investor claiming against Australia under the TPP will have to overcome these barriers before the state will be held liable for a breach of the treaty, and, at least in marginal cases, this will be quite a challenge." Settling disputes In a presentation to Australian Opposition and cross bench parliamentarians on November 30, 2015, Patricia Ranald, coordinator of the Australian Fair Trade and Investment Network, suggested there are significant flaws in the arbitration system, including the potential for arbitrators to have a conflict of interest. Whereas court judges are normally appointed on a permanent basis, an arbitrator in one dispute may be an advocate in a different one. According to Dr Ranald, arbitrations do not generally involve consideration of decisions made in previous cases, and there is no scope for appeal. Donald Robertson, a specialist in international commercial law and arbitration and a partner of global law firm Herbert Smith Freehills, says: "It is true that legitimate questions have been raised in relation to the independence of tribunal members and how they operate. Of course, those concerns pale into insignificance in relation to the legitimate concerns of host state court systems in some countries." Leon Trakman of UNSW, an arbitration expert, tells Fact Check that "no system is perfect". "However, institutions responsible for investor state arbitration, not limited to the International Centre for the Settlement of Investment Disputes (ICSID), have and are addressing concerns raised about it; and have not stood still in the face of legitimate criticism, " he said. Professor Trakman points to a move to public hearings and the publication of written reasons for a decision, the ability of a party to seek judicial review of a decision and the growing endorsement of the International Bar Association's rules on conflict of interest. On the issue of abiding by previous determinations, Professor Trakman says: "While arbitration awards do not lead to judicial precedent, many national legal systems do not adhere to judicial precedent either. Instead, law develops through the opinio juris, the opinion of jurists. That is the way in which international investment law develops in significant measure, not unlike civil law across Europe, South America and parts of Asia. The same is the case in international law where institutions such as the appeal body of the World Trade Organisation does not subscribe to a strict system of precedent." Similarly, international arbitration specialists Audley Sheppard QC and Sam Luttrell of international law firm Clifford Chance tell Fact Check: "For some time now, there has been a trend towards transparency in ISDS [Investor State Dispute Settlement]... The TPP is at the forefront of these developments: it contains comprehensive transparency rules which are designed to ensure that, subject to limited exceptions, ISDS proceedings are conducted in the open. In terms of the arbitrators, the question of arbitrator ethics is one of the big issues in the ISDS community, and has been for the past decade. The TPP reflects this as well: in the ISDS provisions, the TPP States agree to develop a code of conduct for ISDS arbitrators. The TPP also makes allowance for the establishment of an appellate mechanism for the review of awards issued by ISDS tribunals – a mechanism that, if activated, will add a further check on the system... It is also worth noting that there is not one reported instance in which an ISDS arbitrator has been removed for corruption, a record few countries can claim for their judiciary." Protecting the public interest Under the ISDS, foreign companies with investments in Australia can bring a claim if Australia has breached its obligations under the investment chapter of the TPP in relation to that investor. Experts consulted by Fact Check suggest that actions cannot be taken against Australia for public policy legislation such as tobacco control or alcohol warning labels. Jeremy Sharpe, a London-based partner of US Law firm Shearman & Sterling and a former chief of arbitration at the US State Department, tells Fact Check: "The TPP investment chapter has been carefully calibrated to provide strong protections for investors while seeking to ensure that governments can regulate in the public interest, including with respect to health, safety, and the environment." Critics often point to the claim made against Australia by Philip Morris about tobacco plain packaging legislation under an agreement between Australia and Hong Kong. Mr Sharpe tells Fact Check that: "Many older bilateral investment treaties, including the Australia-Hong Kong treaty at issue in the Philip Morris case, were drafted in minimalist terms. These older agreements often contain little specific guidance for their interpretation. The TPP, by contrast, defines the substantive obligations far more precisely and clearly, along with various exceptions and qualifications. This should lead to greater predictability and consistency in TPP awards, to the benefit of investors and governments alike." The TPP text contains a specific exclusion for tobacco regulation in Article 29.5: "A Party may elect to deny the benefits of Section B of Chapter 9 (Investment) with respect to claims challenging a tobacco control measure of the Party. Such a claim shall not be submitted to arbitration under Section B of Chapter 9 (Investment) if a Party has made such an election. If a Party has not elected to deny benefits with respect to such claims by the time of the submission of such a claim to arbitration under Section B of Chapter 9 (Investment), a Party may elect to deny benefits during the proceedings. For greater certainty, if a Party elects to deny benefits with respect to such claims, any such claim shall be dismissed." Beyond that exclusion, Article 9.9 states that measures in the public interest such as the protection of "human, animal or plant life or health" and the "conservation of living or non-living exhaustible natural resources" cannot be taken to be contrary to the investment chapter, so long as those measures "are not applied in an arbitrary or unjustifiable manner" or "do not constitute a disguised restriction on international trade or investment". Experts also referred Fact Check to Article 9.15 as a broad public policy exemption and Article 9.16 on corporate social responsibility. Article 9.15 "Nothing in this Chapter shall be construed to prevent a Party from adopting, maintaining or enforcing any measure otherwise consistent with this Chapter that it considers appropriate to ensure that investment activity in its territory is undertaken in a manner sensitive to environmental, health or other regulatory objectives." Article 9.16 "The Parties reaffirm the importance of each Party encouraging enterprises operating within its territory or subject to its jurisdiction to voluntarily incorporate into their internal policies those internationally recognised standards, guidelines and principles of corporate social responsibility that have been endorsed or are supported by that Party." Donald Robertson, a specialist in international commercial law and arbitration and a partner of global law firm Herbert Smith Freehills, tells Fact Check that such exceptions "make it clear that governments can legislate for public interest issues without infringing on the rights of the investor". Gary Hufbauer, senior fellow at the Peterson Institute for International Economics in Washington DC and an international trade policy specialist, tells Fact Check that "a plain meaning would include the right to require alcohol warning labels (those are now standard) and disclosure of nutritional values on all kinds of food labels (again, standard)". Dr Hufbauer adds that investors are not be able to take action under the ISDS simply because their expectations of a profit might be dashed by a change in Australian laws. He points to Article 9.6(4) which states: "For greater certainty, the mere fact that a Party takes or fails to take an action that may be inconsistent with an investor's expectations does not constitute a breach of this Article, even if there is loss or damage to the covered investment as a result." Pressure from big business Some have suggested that the mere threat of costly proceedings under the ISDS provisions could make governments more wary of making legislation that may harm corporations. Donald Robertson, a specialist in international commercial law and arbitration and a partner of global law firm Herbert Smith Freehills, says: "The ability to put pressure on the government does not come from the TPP or ISDS provisions but from the willingness to take action to raise doubt.The TPP, unlike many other investment agreements, in fact has a number of provisions are intended to deter frivolous claims or abusive claims. In total, these are more than typically available in court proceedings." These limitations include the requirement to negotiate before bringing a claim ( articles 9.17 and 9.18), a limitation period (article 9.20) and the ability to award costs against a company if there is a frivolous claim (article 9.22). Similarly, Jeremy Sharpe of US Law firm Shearman & Sterling tells Fact Check: "The TPP allows a respondent state to request early dismissal of frivolous claims and to recover the state's legal fees. This provision should help deter investors from bringing clearly non-meritorious claims." The US State Department says that foreign investors "rarely pursue arbitration against the United States and have never been successful when they have done so". Ian Gault, partner of New Zealand law firm Bell Gully, tells Fact Check that even though such provisions are in a number of trade agreements entered into by New Zealand, arbitration proceedings have not been brought against that country. Mr Gault says: "It is typically quite difficult for foreign parties to prove a breach of relevant standards by a government. In our view, the doomsday scenarios tend to be propagated by interest groups strongly opposed to the concept of free trade and are not firmly grounded either in experience or legal analysis Sugar and dairy We have been asked about how the TPP benefits agribusiness and particularly the sugar and dairy industries. Phin Ziebell, National Australia Bank's agribusiness economist, notes a number of benefits but adds: "As a multilateral agreement, the TPP will likewise reduce tariffs and improve market access for other agricultural exporters within the TPP region. In certain circumstances this could see Australia's competitive position left steady or even eroded by the agreement, although lower tariff rates overall remain advantageous." Agribusiness lawyer and Partner of Clayton Utz, Andrew Hay, has looked into what the TPP means for the agricultural sector. He says that the TPP will lead to the elimination of tariffs "on more than $4.3 billion of Australia's exports of agricultural goods" and "preferential access through increased quotas and a reduction of tariffs on another $2.1 billion worth of agricultural goods". In relation to sugar, Mr Hay says the TPP will lead to an "effective doubling of access into the US" and an elimination of tariffs of certain types of sugar into Japan and Canada. Mr Ziebell also noted changes for the treatment of sugar in Mexico and Vietnam. "While positive, these developments fell short of some industry participants' expectations" he said. The Australia Sugar Industry Alliance noted that the increase in access to the US came from a very low base and has said: "There are some clear wins, however the major disappointment is with the USA maintaining their protectionist stance on market access for Australian sugar." Dominic Nolan, chief executive of the Australian Sugar Milling Council, says: "Overall, this agreement is a net positive result for the Australian sugar industry. We certainly were pushing for a substantially better result from the US market, and had hoped for much greater leadership from the United States in this regard." When it comes to the impact on the dairy industry, NAB's Mr Ziebell says that almost 40 per cent of Australia's dairy exports went to TPP countries in 2014. Mr Hay notes that tariffs will be eliminated from $100 million worth of cheese exports to Japan and from milk powders, ice cream, infant formula and some cheese exported to the United States. There will also be some other changes to the treatment of dairy exports to the US, Canada and Mexico. The Australian Dairy Industry Council says that the agreement promises "modest but important gains made for the Australian dairy industry in improving access to global markets". The council provided Fact Check with a statement from chair Noel Campbell: "The ADIC looks forward to reviewing the agreement in its entirety to fully quantify the benefits for dairy but early analysis indicates the TPP will improve opportunities in key export markets including Japan." Can we get out of it? We received a submission asking whether Australia can easily exit the TPP. There is a clear withdrawal procedure set out in Article 30.6 of the TPP: Australia can exit the TPP but needs to provide six months' written notice. A withdrawal does not have retrospective effect, meaning any arbitration claims under the ISDS can still be made for conduct that occurred prior to withdrawal. Some South American countries, most notably Venuzuela, have been able to withdraw from international dispute resolution systems following some unfavourable decisions. Donald Robertson, a specialist in international commercial law and arbitration and a partner of global law firm Herbert Smith Freehills, says: "Withdrawal can be, and has been, done. It is not legally hard as the South American withdrawals from the International Centre for Settlement of Investment Disputes have shown." Article 30.2 of the TPP, also allows the parties to agree to amend the TPP.
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