We will know on 3 October (2 October US time) whether the Trans-Pacific Partnership Agreement (TPPA) will conclude or faces collapse. According to a calculated drip-feed of unofficial information, chief negotiators from the 12 countries will resume talks in Atlanta, USA on 26 September, with the ministers now scheduled to meet in for 3 days from 30 September to 2 October, and the chiefs continuing on until 4th.
This is absolute make-or-break time for the text to beconcluded and processed through Congress under Obama. A new President and Congress, especially a Republican, will seek to rewrite the deal.
Three main obstacles remained after the Maui meeting in late July: market access on automobiles (US, Japan, Canada and Mexico) and dairy(NZ, Japan, Canada and US), plus the monopoly rights of Big Phrma over biologic medicines. All attention has focused on autos, with no resolution so far and the major players due to reconvene this week.
Holding another ministerial that fails is a political risk and destroy the dwindling credibility of claims they can conclude the deal; but not having a ministerial at all would concede that by default.
The meeting is now scheduled several days later than originally proposed, and comes straight after the political leaders are in New York for the UN Sustainability Development Summit at the end of September. Expect a gathering of the TPPA leaders, where Obama can combine charm and pressure to secure the US’s outstanding demands. Game of golf, anyone?
Groser must be feeling cornered and desperate. Contrast his statement on the weekend that ministers will only meet if there is progress on the outstanding issues with that if his Japanese counterpart – failure to agree a deal at the September ministerial means TPPA could be put off for years.
The only and shifting bottom line for New Zealand is something ‘commercially meaningful’ on dairy. Groser says there have been ongoing bilateral talks, but there is no talk of any ‘progress’. Why would Canada, Japan and the US make concessions to New Zealand? We have nothing they need and they will bet that Groser is not going to hold up a final deal. Remember his arrogant – and for us ominous – statement to the press at the failed Maui ministerial that the TPPA was his brainchild and New Zealand would never walk away? I have predicted all along that Groser will swallow the rat and leave it to Key to do damage control at home. “Trust us” – yeah, right.
We all need to keep the pressure on both Groser and Key.
There is now an increasingly active propaganda machine trying to sell the deal. The latest was a very poor piece of work from the NZIER claiming that concern over the right of foreign investors to sue under the TPPA (investor-state dispute settlement or ISDS) was a big beat-up. Some of it was legally wrong or made questionable interpretation of the data. Majorissues, including preferential protections for foreign investors over locals, inconsistent legal interpretations, conflicts of interest among the arbitrators, no right of appeal, and implications for the domestic courts were simply ignored. We can expect much more of that in the next few weeks.
Fortuitously, the spotlight will shine brightly on thesecrecy of the negotiations bang in the middle of the Atlanta meeting. On 28 September the High Court in Wellington will hear our challenge to Groser’s blanket refusal to release any information from a range of categories I requested under the Official Information Act back in January. We are seeking judicial review of those decisions and declarations that the Minister acted unlawfully.*
There is an impressive list of co-applicants: Consumer NZ, Ngati Kahungunu, Oxfam, Greenpeace, Association of Salaried Medical Specialists, NZ Nurses Organisation and NZ tertiary Education Union. Matthew Palmer QC is counsel.
Not much can be said about the details of the case until after the hearing, although basic documents for this case and the Waitangi Tribunal claim are on http://tpplegal.wordpress.com. I will write a blog setting out the issues and arguments as soon as the hearing is over. There is a Give-a-Little page where you can help cover the costs and build a fighting fund for the (almost inevitable) appeals – https://givealittle.co.nz/cause/tppnosecrecy.
*(To those who have asked whether we could make a similar legal challenge to the one being brought in Japan, the answer is ‘no’. Their case is based on Japan’s constitution).