The TPP: Treaty making, parliamentary democracy, regulatory sovereignty and the rule of law

In this comprehensive survey of the TPP and the road ahead, Jane Kelsey highlights not only the deep inroads the proposed treaty has made into democratic rights and national sovereignty, but also how its enforcement will reflect the vastly unequal economic power of its parties.

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NEGOTIATIONS for a Trans-Pacific Partnership (TPP) Agreement were concluded in Atlanta, USA on 5 October 2015, and the text was released on 5 November 2015. There are 12 negotiating countries: Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States and Vietnam.

The TPP has 30 chapters and many annexes, with parties also adopting bilateral side-letters. They are expected to sign the agreement on 4 February 2016 in New Zealand, which is the formal depositary for the TPP. Each party to the negotiations must complete its own constitutional processes and requirements before it can take steps to adopt the agreement. The TPP will come into force within two years if all original signatories notify that they have completed their domestic processes, or after two years and 60 days if at least six, including the US and Japan and several other larger countries, have done so.

Access to information

Following the announcement on 5 October that the negotiations were concluded, governments released their own account of the agreement and its implications. The text itself was released one month later, subject to legal verification (scrubbing), along with various side-letters. No other formal documentation from the negotiations has been made public. In March 2010 at the start of the TPP negotiations, the parties had agreed to an unprecedented pact to keep an extraordinary range of information secret:

'First, all participants agree that the negotiating texts, proposals of each Government, accompanying explanatory material, emails related to the substance of the negotiations, and other information exchanged in the context of the negotiations, is provided and will be held in confidence, unless each participant involved in a communication subsequently agrees to its release. This means that the documents may be provided only to (1) government officials or (2) persons outside government who participate in that government's domestic consultation process and who have a need to review or be advised of the information in these documents. Anyone given access to the documents will be alerted that they cannot share the documents with people not authorised to see them. All participants plan to hold these documents in confidence for four years after entry into force of the Trans Pacific Partnership Agreement, or if no agreement enters into force, for four years after the last round of negotiations.  .'

This effectively shields a comprehensive pool of information from public scrutiny until at least one election cycle after the agreement comes into force (which is likely to be at least two years after signing).

[Subsequently, a similar pact has been agreed in the negotiations for a Trade in Services Agreement (TISA), with confidentiality applying for five years after the agreement comes into force.]

In addition to concerns about democracy and accountability, the availability of a negotiating record (or travaux preparatoires) is crucial for interpreting the text. The official depositary presumably holds the authentic negotiating record, although there is no reference to one in the agreement. If there is no single authentic record, each country will rely on its own version, creating more uncertainty and contention. That is problematic for countries with limited capacity or that joined midway through the negotiations, and for non-negotiating countries that accede to an agreement they had no role in negotiating. It also means people outside government who have a concern about proper interpretation will not have access to the negotiating and background documents for around six years, if at all.

Status of the TPP

In signing the TPP, a government is indicating its intention for the state to be bound by the terms of the treaty. But it does not become binding on that state until it has completed its necessary domestic processes and the provisions set down in Article 30.5 for entry into force of the agreement have been satisfied.

There are three different ways the TPP could come into force and bind some or all of the signatories:

1. If all original signatories complete their domestic processes to approve the agreement coming into force and notify the depositary in writing within two years of signing, the TPP comes into force 60 days after the last country notifies.

2. If not all original signatories have notified completion of their processes after two years, but at least six have done so, and they account for at least 85% of the combined GDP of the original signatories (as of 2013), the TPP would come into force after 60 days (that means two years plus 60 days after signing).

3. If two years pass without the second option being met, the agreement comes into force 60 days after the date when six or more parties comprising 85% of GDP have notified. 

This formula means the US and Japan must be originating parties. Just two additional larger countries (Canada, Australia, Mexico) would be enough to meet the threshold of 85% of shared GDP. Poor and small countries are virtually irrelevant.

The formula raises a conundrum in relation to US certification that other TPP countries have implemented the US understanding of those countries' obligations (see following article). The agreement cannot come into force for any country until the US notifies the TPP Commission (see below) that its domestic processes have been completed. Article 30.5 assumes a single notification by each signatory. However, US practice has been to certify compliance by other parties to a plurilateral agreement bilaterally and differentially. Presumably this was discussed during the negotiations, but there is nothing in the text to indicate whether that would be permitted. If the US cannot notify the Commission until it has completed certification for all signatories, and the agreement cannot come into force until it provides that notification, the process could take a long time and the pressure on other countries from US certification would be intense. Requiring single and full certification by the US would also contradict the intention of the provision that the agreement can come into force for only some parties.

Becoming parties to the TPP

There are incentives for being in the first tranche of parties, and potential penalties for not being one. Any original signatory who is not in that first group must give notice that it intends to become a party, to those who are. However, its acceptance is not automatic. The TPP Commission (made up of all the existing parties) needs to agree. The text is not explicit that the Commission or any one of its members may require further concessions, probably by side-letters, but that is implicit. The US has particular leverage because the President will need to go back to Congress for approval. Assuming the country is accepted, the agreement comes into force for it after 30 days, unless all agree to a different date.

A signatory country's later entry also raises questions about phase-in periods, especially for tariff cuts that are implemented over time. There is a presumption that an original signatory who joins later must immediately implement all the tariff cuts it would have made to that date if it was in the first tranche, unless another country wants to delay its own reciprocal cuts to the new party (Annex 2-D).

Any other member of the Asia-Pacific Economic Cooperation (APEC) forum is automatically allowed to seek to join the TPP, but there needs to be consensus for any non-APEC country to even begin the process. Any country wanting to join must be prepared to accept not only the terms of an agreement they had no role in negotiating, but also any additional terms that existing parties require of them (Article 30.4.1). This accession process is presumably confidential and could take a very long time.

The process will be similar to countries joining the World Trade Organisation (WTO) and to when Japan, Mexico and Canada joined the TPP negotiations. The country will have to negotiate bilaterally with each of the existing members and get that approval - which means they can be required to make more extensive commitments than existing members, which may include rules that are not in the TPP. A working group of all TPP parties who want to participate must then agree on the accession. Just one existing party can block the establishment of a working group for a non-APEC country (Article 30.4.3bis). The working group reports to the TPP Commission in writing, setting out any terms and conditions. The group decides by positive consensus or the lack of a written objection by a group member within seven days. The Commission still needs to adopt the working group recommendations.

Most of the terms agreed bilaterally will end up being shared across all the parties, but the TPP already sets the precedent for different market access between parties and side-letters setting out special bilateral arrangements.

Trans-Pacific Partnership Commission

There is no formal institution created to oversee the agreement. Instead, a TPP Commission is established, comprising all the parties to the agreement at the level of ministers or senior officials. The Commission will be the vehicle through which the TPP members meet yearly. The chairing of meetings will rotate among the parties, although New Zealand will presumably continue to be the official depositary.

The Commission is the vehicle through which the TPP becomes a 'living agreement', with functions to:

 consider any matter relating to implementation or operation of the agreement;

 review within three years and at least every five years after that the 'economic relationship and partnership' among the parties;

 consider any proposal for amendment or modification;

 supervise the committees and working groups;

 establish model procedural rules for arbitral tribunals;

 consider how to enhance trade and investment between the parties;

 review the roster of panel chairs for state-state disputes;

 decide whether an original signatory can join the agreement;

 change institutional arrangements;

 consider changes to schedules on tariffs, rules of origin or government procurement;

 consult with non-government actors (including corporate interests) on a matter within its responsibility; and

 seek to resolve disputes over interpretation and application of the agreement and issue interpretations of provisions.

All decisions of bodies established under the TPP are by consensus unless the text or the parties say otherwise (Article 27.3). This takes the form of 'negative consensus', requiring no objection from any party present at a meeting. If one country is absent and would have objected, it is bound by the decision of the others. There is no provision for proxies. In situations where the Commission's functions require an actual consensus, that is deemed to exist if a party that dissents during the discussion does not table an objection in writing within five days.

Countries that have transition periods must report their plans and progress towards implementation at each meeting (Article 27.7). Where a transition period is less than three years, a written report must be tabled six months before it expires; for more than three years, reports must be annual after the first three years, and six months before the period expires. Any other party can ask for more information about progress and must be provided with it promptly. At the end of the transition period, the country must report on what it has done. If a country fails to meet these requirements, that automatically goes on the agenda for the next Commission meeting, or a special meeting can be called to discuss it. 

 

Amendments and withdrawal

Any changes to the text (including general or country-specific annexes, such as rules on foreign investment, appendices and footnotes) must have the consent of all the other parties (Article 27.7), which will involve their domestic processes. Again, the US Congress would need to approve. If an amendment is approved, it comes into force 60 days after all parties have notified their approval, or otherwise if agreed.

As with most treaties, any party can withdraw from the whole agreement by giving written notice to the depositary and other parties (Article 30.6). Withdrawal takes effect after six months unless the parties agree otherwise. Recently, South Africa, Indonesia and a number of other countries have begun withdrawing from standalone bilateral investment treaties, which are the equivalent of the investment chapter of the TPP. Doing so in the TPP would mean terminating participation in the entire agreement. It is not possible to withdraw from just one chapter or rule, such as on intellectual property on medicines, investor-state dispute settlement or state-owned enterprises. That would be an amendment that requires the consent of the other parties.

Complete withdrawal from the TPP would be unprecedented and bring with it reputational and diplomatic ramifications, with threatened or actual investor flight and strike and credit ratings downgrades. Other states in the TPP and beyond would be likely to express a lack of confidence to enter into future treaties with that country.

There is a complex web of existing bilateral and regional agreements among the negotiating parties to the TPP, and all are also members of the WTO. Some of those agreements have different, and conflicting, terms and obligations from the TPP, and frequent vague wording makes their compatibility more uncertain.

Normally in international law the later agreement between the same parties that involves the same subject matter supersedes the prior agreement, to the extent that they are not compatible. The TPP says they are meant to co-exist and both continue to apply (Article 1.2). Significantly, it is terms that are more favourable to commercial interests - not to the right to regulate, or social and environmental objectives - that prevail. The relevant parties are meant to consult where there is a perceived inconsistency.

Where a dispute could arise equally under the TPP and another agreement involving the disputing parties (including the WTO), the complainant can choose which dispute forum to use, but that decision is final (Article 28.4).

External influence over domestic decisions

The TPP rules constrain the actions of states, not private individuals. Some public entities, such as central banks, are excluded when performing specific functions. The 'right to regulate' appears as rhetoric in the preamble and in several places throughout the text of the agreement. But the TPP is the antithesis of that right, because its very purpose is to constrain governments' future actions. In addition to requiring that a government's laws, policies and practices comply with substantive rules in the TPP, the agreement imposes many procedural obligations. A feature of the 'behind the border' reach of the TPP is its focus on the processes and commercial orientation of domestic decision-making in the name of 'transparency' and 'regulatory coherence'. Cumulatively these can be both intrusive and burdensome, and provide the means for states and investors from other TPP countries to build an evidence portfolio to use, if necessary, in an eventual dispute.

The generic rules on transparency (Chapter 26) cover public disclosure of existing and proposed measures and prior consultation with other parties and interested persons, but are largely exhortatory. There is a stronger obligation to maintain independent tribunals or procedures for prompt review and, if necessary, correction of administrative action covered by the agreement.

Individual chapters impose more specific and onerous transparency requirements that give foreign states and commercial interests more opportunities to influence government decisions. These apply to export licensing procedures, sanitary and phytosanitary measures, technical barriers to trade, cross-border services, financial services and investment, telecommunications, competition policy and intellectual property. The chapter on state-owned enterprises has particularly onerous requirements to respond to requests for information that do not require the party making the request to meet any objective and challengeable test.

Domestic decision-making processes and priorities are also targeted in Chapter 25 on 'Regulatory Coherence'. Each government can decide the scope of regulatory measures covered by the chapter, but they must be 'significant', and be published within a year. Governments promise to use 'good regulatory practices' in relation to those measures to promote trade and investment, economic growth and employment.

The regulatory coherence chapter is much less directive than the version leaked in 2011, which would have realigned governments' institutional arrangements and imposed presumptions of light-handed and least-burdensome regulation. After a backlash from developing-country governments, the final chapter affirms the sovereign right of governments to set their regulatory priorities, but then 'encourages' them to use regulatory impact assessments and facilitate inter-agency coordination when creating and reviewing regulation. The chapter is not enforceable per se, although investors could cite the expectations it creates when challenging a government measure.

Beyond the TPP Commission and the dispute processes, virtually every chapter creates a specific committee to consider matters arising under the chapter and, in some cases, to review implementation and compliance.

In addition to the potential for the Commission to revisit aspects of the TPP, several specific rules and matters of coverage are flagged for further negotiations. Significantly, the rules on new-generation biologics medicines, which were the subject of a controversy that was eventually resolved by providing two options, will be renegotiated after 10 years. The regulatory coherence chapter is to be reviewed every five years in light of developments in 'good regulatory practices'. There are inbuilt negotiations for sub-central government coverage in the chapters on state-owned enterprises and government procurement. Some chapter-specific committees may decide on future negotiations (as with government procurement).

State-state enforcement

A party to the TPP can dispute an interpretation or application of the agreement by another party or enforce the rules where it considers they have been breached, unless the chapter or rule is specifically excluded from enforcement.

In addition to enforcing the rules, a party can bring a dispute if it believes that benefits it expected from the TPP have been 'nullified or impaired' by the actions of another party, even if the rules were not broken. This possibility creates uncertainty where the text is vague, as often occurs with compromise solutions to a contested issue, and opens the door to pressure and the 'chilling effect' where a government is threatened with a dispute if it proceeds with a proposed action. Lack of public access to the negotiating history, or travaux preparatoires, will make it difficult for policy advocates outside government to anticipate or advise on interpretations. Nullification and impairment applies only to certain chapters, and significantly not those on investment and intellectual property.

Notable exclusions from state-state enforcement are the Annex on Transparency and Procedural Fairness for Pharmaceutical Products and Medical Devices, and the competition policy and regulatory coherence chapters. Governments are still required to comply with those rules and will be held to account by the TPP Commission and any subject-specific committees. Non-compliance could still form the basis for a nullification and impairment complaint.

State-state dispute process

The framework for state-state disputes is standard for free trade agreements (FTAs): it begins with consultations, and availability of 'good offices', followed by requests to establish an arbitral panel. Each step has a time limit (although similar timelines are increasingly deviated from in the WTO).

Each party to a dispute chooses an arbitrator from a list of experts in law, international trade or matters covered by the agreement that has been submitted by the various TPP parties. The disputing parties, and failing that their panellists, are meant to agree on a chair. The arbitrators must have appropriate expertise where a dispute involves the labour, environment or anti-corruption chapters, but there is no similar requirement for a health-related dispute. Special arrangements apply for some financial services and investment disputes.

Where the same matter could be enforced through the WTO or another FTA involving the parties, the complainant can choose the forum, but that choice is final. The panels are only required to refer to WTO jurisprudence where the rule has been imported from the WTO, such as the general exceptions. Changes to the wording of WTO provisions and other agreements mean there is no clear jurisprudence, adding to legal uncertainty. Where there is a minority decision, the identity of the dissenting panellist is not disclosed.

Other parties that claim a 'substantial interest' can seek to join the dispute as an interested party. Non-state actors with an interest, whether a corporation or non-government organisation, can ask the panel to consider accepting written submissions to help evaluate the submissions and arguments - by implication limited to the issues being pleaded. Panels can also call on experts where the parties agree.

Hearings will be in public and will be held in the country of the party, unless the parties to the dispute agree otherwise. This is a major advance as it will make it easier for locals to monitor. Parties must also make 'best efforts' to publish submissions as soon as possible, but no later than the final panel report (i.e., when it is over). The right to protect confidential information could undermine this new openness.

The rules of procedure are required to include a code of conduct for arbitrators, but that does not have to be ready until the TPP comes into force, meaning it is not part of the text that is subject to domestic approval. A panellist who breaches the code can only be removed if both parties agree.

There is no appeal.

Compliance and enforcement

The objective of enforcement is that a party found in breach of its obligations will revoke the impugned law, policy, decision or action.

There is a drawn-out process for resolving a standoff if a losing respondent fails to implement the panel's decision (Article 28.19). Ultimately, there are two options: (i) paying temporary monetary compensation so long as the breach continues; and (ii) sanctions by the withdrawal of benefits equivalent to the loss the other party faces from the breach. These sanctions should target the same subject matter as the breach (e.g., agriculture), and only where that is not practicable can there be resort to a different subject matter (e.g., Internet services or investment). There are limits on using withdrawal of intellectual property and financial services concessions for a breach involving goods. This retaliation can have serious impacts, especially on poor and small countries, so the aggrieved party has to consider the breach is serious and is meant to consider the economic consequences.

However, enforcement will reflect the vastly unequal economic power of the different TPP parties, as both complainants and respondents. Some novel moves are presumably meant to mitigate the impact of sanctions on poor countries. If a party plans to suspend benefits against another party, they can agree to a short-term (12 months) compromise where the country in breach pays half the assessed economic loss, in instalments, into a fund that can be used for 'initiatives to facilitate trade between the parties' including further reducing 'unreasonable trade barriers'. This will do little to address the power asymmetries, especially when a rich country is in breach.

Investor-state dispute settlement (ISDS)

Investors from a TPP country have new, more extensive rights in the investment and financial services chapters, and the controversial power to enforce these special entitlements through international arbitration using ad hoc tribunals from which there is no appeal. The ISDS process is also made available for a dispute on an investment contract involving natural resources, various public services and infrastructure, and for a dispute over an authorisation to invest.

Section B of the investment chapter, which provides for ISDS, attempts to address some problematic practices of investors and arbitral tribunals. There is a 3.5-year time limit on bringing a claim from when the action complained of should have been known. Challenges that a dispute manifestly lacks merit are to be heard expeditiously. Investors must waive the right to pursue a legal dispute on the same measure in another legal forum, or to invoke more favourable procedural rules in other investment treaties using the most-favoured-nation rule. The burden of proof is explicitly placed on investors for alleged breaches of the minimum standard of treatment. The TPP Commission can issue a binding interpretation of a provision, or a non-conforming measure listed in a party's investment annex; however, the parties may not agree, and even though this is said to bind investment tribunals they have disregarded parties' interpretations in past disputes under other investment treaties (e.g., Railways Development Corporation v Republic of Guatemala, ICSID case no. ARB/07/23, award 29 June 2012). Special rules apply to interpreting exceptions relied on as defences to a dispute on financial investments.

None of this addresses the fundamental objection that ISDS lacks the characteristics of a credible and independent legal process and effectively subordinates national judicial processes as the appropriate legal forum for a privileged class of foreign investors. Investment tribunals are still ad hoc, with the 'judges' selected by the parties. Consideration of the proposed code of conduct for arbitrators is not required until the agreement comes into force, so it is impossible to assess whether it will even attempt to address the conflicts of interest that arise when practising investment lawyers also act as arbitrators. Decisions of domestic courts can be challenged under ISDS, and domestic appeal processes bypassed. There is no system of precedent and no appeal.

Other countries are recognising the need to address these concerns at a more fundamental level. The European Union has proposed replacing ISDS with an investment court, including in the Transatlantic Trade and Investment Partnership it is negotiating with the US. South Africa has proposed domestic legislation that would substitute for ISDS commitments from which it is withdrawing. India is developing a new, more balanced model investment treaty. The TPP is not only a missed opportunity, but one that places regulatory sovereignty and the integrity of the rule of law at greater risk.                                         

Jane Kelsey is Professor of Law at the University of Auckland in New Zealand. For several decades her work has centred on the interface between globalisation and domestic neoliberalism, with particular reference to free trade and investment agreements. Since 2008 she has played a central role in the international and national campaign to raise awareness of, and opposition to, the Trans-Pacific Partnership Agreement. She is the author of Hidden Agendas: What We Need to Know About the TPP (Bridget Williams Books, 2013).

US Congressional process for the TPP1 THE US's Bipartisan Congressional Trade Priorities and Accountability Bill (otherwise known as the Fast Track or Trade Promotion Authority legislation) required the President to give 90 days' notice of intention to sign the TPP. That notice was given on 5 November 2015, the same day the text was released. The notification of intention to sign also triggered a 30-day period for reports on the TPP from 28 trade advisory committees, including 16 industry trade advisory committees, whose 600 members are overwhelmingly drawn from the corporate sector.2 The International Trade Commission (ITC) is a US government body, one of whose tasks is to prepare economic analyses of international trade agreements to be provided to Congress alongside the implementing legislation. The assessment includes the estimated impact on US GDP, exports and imports, employment, and the production, employment and competitive position of industries likely to be significantly affected by the agreement. Section 105(c) of the Fast Track law says the ITC must deliver its report to the President and Congress 105 days after the President signs the TPP, although it could do so before. Fast Track Fast Track or Trade Promotion Authority was signed into law in June 2015. The Bill delegates to the US President the right to sign and enter into a trade agreement before Congress approves the contents of the pact. It then guarantees both houses of Congress - the House of Representatives and the Senate - will vote on the legislation to implement the agreement within 90 days of submission of the implementing legislation. Under Fast Track, that legislation circumvents normal Congressional committee review/amendment processes and is also not subject to any floor amendments. Both houses of Congress are restricted to a 'yes' or 'no' vote. Debate in each chamber is limited to 20 hours and Congress must complete the process within 90 legislative days. In return for the surrender of some Congressional control over trade, which constitutionally belongs to the House of Representatives, the Fast Track bill contained a long list of substantive and procedural requirements for the TPP. Most of the procedural requirements are binding; the substantive content may become a matter of contest. There are already signs of discontent on both sides of Congress. The administration of President Barack Obama needs a majority in each chamber. In 2014 the first attempt to move the Fast Track legislation in the Senate failed, as it needed a super-majority in the initial vote. After legislative manoeuvring and deal-making, the second vote succeeded by a single vote. The Fast Track legislation itself was then blocked on a first attempt in the House of Representatives. After further deal-making and legislative manoeuvring, it passed narrowly by a 218-208 majority in the House and 60-38 vote in the Senate. The Democratic Party President relied on Republican votes. Only 28 Democrats supported the bill in the House. If five House votes shift, the TPP will not pass, and there are warnings that could well happen. Congressional vote on implementing legislation Once the TPP is signed, there is no specified date on which the implementing legislation must be tabled in Congress. Technically, the final legal text and a draft statement of administrative action must be submitted to Congress 30 days before the legislation and statement of administrative action is submitted to Congress. Normally the administration would wait until the ITC report is completed to present the bill, but that is not strictly required. The timing will be tactical - the administration will not want to present the legislation unless they know it will pass. It could be extremely fast if the votes are there, or if the deal does not enjoy majority support it could be delayed more than four years, as with the US-Korea FTA. If all corners were cut, the bill could be submitted shortly after the President signs the TPP in early February 2016. But that would be during the election campaign when all members of the House are up for re-election and can be held accountable by the electorate. Any moves to satisfy what the Republicans demand are likely to lose Democrat votes and vice versa. As soon as the text became available, Democrats on key Congressional committees began consulting with constituents to assess it against core policies, including the May 2007 bipartisan deal they brokered with then President George W Bush for the FTAs with Peru, Colombia, Panama and South Korea. This focuses on labour, environment and medicines. Republican support is likely to become more difficult in an election year. Influential members of Congress, including the Republican chair of the Senate Finance Committee Orrin Hatch, say the agreement does not live up to the requirements of the Fast Track law and have called for renegotiation of provisions, especially on biologics medicines and the option to exclude tobacco from investor-state dispute settlement (ISDS). Alternatively, the implementing bill could be tabled during the 'lame duck' period between the outgoing Obama administration and the incoming new president and members of Congress. Doing so would be politically difficult, especially if the incoming president opposed the deal, which is the current position of the entire Democratic slate of candidates and several prominent Republican candidates. If a candidate who opposes the TPP is elected, there will be much pressure to not hold a vote so as to preserve the opportunity to seek more concessions through renegotiation in the next administration. If the implementing legislation has not been passed, it is possible that a new president might decide, or be prevailed upon, to seek to reopen aspects of the text. The FTAs with Panama, Colombia and South Korea that were negotiated and signed by President Bush were not voted on during the Bush administration. They then languished for several years while the Obama administration negotiated an additional 'Labour Action Plan' with the Colombian government and required the Korean government to make a series of further concessions on automobiles and agriculture. It was only after those additional concessions were secured that Congress voted to approve those agreements. A change in the political balance across both houses of Congress in either political direction could also affect the outcome of the vote. US certification of another party's compliance In addition, the new administration could use the certification process to secure changes to other parties' commitments and domestic laws that are favourable to the US. Certification is a legally binding obligation on the US President, set out in Section 4(a) 1 and 2 of the Fast Track legislation: 'Prior to exchanging notes providing for the entry into force of a trade agreement, the United States Trade Representative shall consult closely and on a timely basis with Members of Congress and [relevant committees] ... and keep them fully apprised of the measures a trading partner has taken to comply with those provisions of the agreement that are to take effect on the date that the agreement enters into force.' US government officials will transmit a list of the changes to the other country's domestic laws and policies that the US government requires before it will allow the TPP to go into force. They will then monitor compliance and pressure the government of the trading-partner country to alter its laws and policies until they satisfy the US view of the changes required. The US use of certification in the past has been controversial as it involves foreign interference in sovereign lawmaking processes. Examples of US certification practices are available on www.tppnocertification.org. In many instances the US has focused on intellectual property laws, especially affecting medicines. In Australia's case the US insisted that further amendments to copyright laws be passed before it would certify compliance under the Australia-US FTA. In May 2015 current and former legislators from TPP countries sent an open letter to their political leaders calling on them to resist such pressures. Members of Congress have already indicated they will call for side-letters or proof that the other country has complied with US demands in areas of medicines, especially biologics, the tobacco exception from ISDS, dairy, and currency controls. A Japanese official has suggested side-letters as a creative way to address objections from US lawmakers without renegotiating the formal text. The other parties cannot effectively constrain certification, as it is a unilateral US process. However, the formula for bringing the agreement into force raises some uncertainties about how certification may work in practice. Under the TPP the US President must provide formal written notification that the US has satisfied its domestic approval processes before the agreement can come into force (Article 30.5). That will not occur until the US certifies that the other parties have altered their domestic laws and policies to satisfy US expectations of what is needed to comply with the TPP. This is distinct from the US's domestic process of passing the implementing legislation. The formula adopted in the TPP means the US must be an original party to the agreement. Until the US certifies another party's compliance, the US process will not have been completed for that party. It is unclear from the TPP text whether the US could deliver partial notification in relation to only some parties, but the US is expected to argue so. - Jane Kelsey                                    Endnotes 1   See, generally, Public Citizen, 'TPP Vote Calendar', https://www.citizen.org/documents/TPP-vote-calendar.pdf 2   'The Insider List', https://sojo.net/articles/insider-list

*Third World Resurgence No. 303/304, November/December 2015, pp 31-37