Imperator Fish on TPPA

Scott at Imperator Fish blogs on the TPPA:

The Trans-Pacific Partnership Agreement has a lot of people talking, particularly over the fear many people have that New Zealand will agree to an investor-state dispute provision that would allow foreign companies to take legal action in some circumstances, if our government passed legislation those companies didn’t like. Environmental and health groups worry that the provisions could be used by tobacco companies to challenge anti-smoking regulations, or by multinationals to toss out environmental protections they don’t like.

Critics have claimed the measures would amount to our handing over our sovereignty. Legally this is a nonsense. What right, if any, we give to multinationals we will give because our Parliament adopted legislation ratifying the agreement. Parliament could theoretically the very next day repeal that legislation, rendering the agreement provisions unenforceable. People, we don’t lose our sovereignty.*

It is also worth pointing out that investor-state provisions work two ways. They protect NZ companies from (for example) having their assets nationalised in another country, purely because they are NZ owned.

For me the issue is not the existence of investor-state provisions, but how they are crafted. You want them crafted in a way which does protect your country’s right to make laws and policies in the public interest.

That’s not to say the deal’s a good one, and there is plenty to be deeply concerned about. However, the nature of free trade negotiations is you win some battles and lose others. If we ratified the thing it wouldn’t be all bad. It might be more bad than good, and that might be enough reason to say no to the deal, but it’s not true to say that the TPPA offers New Zealand nothing.

I am a supporter of free trade agreements, but the chapter proposed by the US on intellectual property is deeply flawed and its inclusion in any deal would be a bad thing.

Most people following the TPPA negotiations would agree there should be more transparency in the deal-making process. But we cannot expect officials to disclose everything to the public, because if our officials did that no country on Earth would want to enter into discussions with us. Clearly there has been too much secrecy, but it isn’t realistic to expect no secrecy. However, the broad condemnation across the board suggests officials haven’t got the balance right.

There’s plenty not to like about the TPPA and the secrecy surrounding the negotiation process. The opposition parties should continue to put pressure on the Government, to ensure that if the deal proceeds it provides more opportunities than costs for New Zealand. But we can’t do a deal without any trade-offs. The challenge is to find concessions we can live with, a challenge that is looking increasingly difficult.

The reality with negotiations is you need all parties to agree to do anything – including made draft texts public. NZ can push for this, but it can not dictate to the other parties.

Scott is right that there are always trade-offs. But these need to be from all countries – including the US. It’s IP chapter is basically opposed by every other negotiating country. If they want a deal, they need to come up with a chapter that won’t make Internet caching illegal, won’t ban parallel importing, won’t stifle software innovation with patent wars, won’t extend copyright terms for decades more, and won’t force on countries laws where people lose Internet access upon unproved accusations.