Trans-Pacific Partnership Agreement TPPA could hurt Developing Countries

…  local producers will have to compete with large foreign businesses. Moreover, the TPPA will give foreign companies more opportunities to sue governments, while also raising the prices of medicines – Published on Global Policy Forum GPF, by Martin Khor, July 17, 2013.

… Not much is known about the TPPA drafts.  But with some of its chapters leaked and available on the internet, and since much of the TPPA is likely to be similar to bilateral FTAs that the United States has already signed, we can have a good idea of its main points.   

As can be expected, there are many contentious issues to consider, especially for developing countries like Malaysia. (The countries involved in the TPPA negotiations are Australia, Brunei Darussalam, Canada, Chile, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam. Japan has just joined too).

Actually, only a small part of the TPPA is about trade as such.  Most chapters are on other issues, like services, investment, government procurement, disciplines on state-owned enterprises and intellectual property. Joining the TPPA or similar FTAs will mean the country having to make often drastic changes to existing policies, laws and regulations, which will in turn affect the domestic economy and society … //

… TPPA countries have agreed to allow foreign companies to sue governments in an international arbitration tribunal (usually the International Centre for the Settlement of Investment Disputes, based in he World Bank in Washington DC) for compensation for expropriation, or for not giving them fair treatment. Expropriation is defined not only as confiscation of property or breaking of contracts, but also as reduction of revenues due to a change in policies and  regulations.

These investor-to-state disputes can cost countries a lot. A tribunal awarded an American oil company US$ 2.3 billion against Ecuador’s government in 2012.  Indonesia is being sued US$2 billion for withdrawing a contract that a state government made with a UK-based company.

The TPPA will also open up government procurement, with foreigners allowed to bid on similar terms as locals for goods, services and projects of the federal government (and possibly also state and municipal governments) above a threshold value.   Existing preferences in government procurement for local companies will be affected, as will be the ability of government to use its spending and procurement policy to boost the domestic economy and as a major social and economic policy instrument.

Since government procurement contracts are considered investments, the foreign supplier can sue the government at an international tribunal by claiming unfair treatment including a renegotiation of contract.

There is also a sub-chapter on state-owned enterprises (SOEs).   The USA and Australia are proposing disciplines on the operations of SOEs, including commercial companies in which the government has a share. This would restrict the state’ ability to govern or manage government-linked companies, or provide them with incentives and preferences.  This would have serious implications for many a developing country whose success is based on the role of the state in the economy, and on public-private sector partnerships.

The chapter on intellectual property has generated public debate because it obliges the TPPA countries to have IP laws far beyond the WTO rules. Longer patent terms and restrictions on the state’s policy freedom to promote generic medicines are expected to raise the prices of medicines.  Tighter copyright rules would also affect access to knowledge, including books, journals and digital information.

Local producers in industry may also find it more difficult to upgrade their technologies and local farmers could have less access to agricultural inputs including seeds.

These are the specific issues that are or should be in the centre of the negotiations. There are many benefits to the foreign investors or companies, as contrasted to the local, as can be seen from the above.  Local companies would lose a lot of their present advantages or preferences, they cannot stake a claim to “fair and equitable treatment” nor sue the government in a foreign court, unlike their foreign counterparts.

Naturally, there are pros and cons to any agreement.  Any potential gain for a country in exports or investments should be weighed against potential losses to domestic producers and consumers, and especially the loss to the government in policy space and potential pay-outs to companies claiming compensation.

Third World Network: What to expect in TPPA talks.

A shorter version of the article was first published in The Star (Malaysia), Monday 15 July.
(full text).


South Centre: /Homepage, /About, on en.wikipedia;

Martin Khor: on South Center; on en.wikipedia;

Trans-Pacific Partnership Agreement TPPA on en.wikipedia with it’s External Links;

THIRD WORLD /Homepage; /About; on en.wikipedia.

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