TPPA-11 Negotiations Headed for Constitutional Collision – Professor Jane Kelsey

Events in Sydney this week mean the New Zealand government is now facing a renegotiation of the Trans-Pacific Partnership Agreement (TPPA) text on the eve of an election.

‘It is simply unacceptable that a caretaker National party would continue to make decisions in secret on such a sensitive matter in the midst of an election campaign’ says Auckland University law professor Jane Kelsey.

‘Other political parties must now be consulted in the lead up to the next round of negotiations in September. Bill English considered it appropriate to consult on a minor change in a deployment to Afghanistan, so a renegotiation of the TPPA text demands at least the same.’

Australian and Japanese media are reporting from negotiations just concluded in Sydney that all eleven countries remaining in the TPPA have agreed to suspend some parts of the agreement unless and until the US re-joins, and some are demanding that parts of the text are reopened, according to Professor Kelsey.

Canada and Mexico want a quick decision to suspend various TPPA provisions that the Trump administration will demand in its renegotiation of the North American Free Trade Agreement (NAFTA).

Other countries will insist on reopening parts of the text to withdraw concessions they agreed on tariffs in the expectation of access to the US market. Vietnam will want to drop the chapter on state-owned enterprises. Malaysia will undoubtedly seek to revisit the restrictions on government procurement.

The news reports say that the controversial monopoly period of marketing exclusivity for biologics medicines and patent term extensions for delays in processing applications are also among the provisions to be suspended.

This follows an open letter from the international health community, including the World Public Health Association and the New Zealand Medical Association, to trade and health ministers of the eleven countries earlier in the week. They called for a complete renegotiation of the agreement, but failing that for the suspension, at least, of provisions that would cause the most harm to people’s health.

‘A number of countries made it clear they weren’t prepared to give US pharmaceutical companies the benefits of TPPA for free. Sadly, the National government wasn’t among them. At least they eventually joined the consensus’, Professor Kelsey said.

However, the fate of other controversial provisions, especially relating to investment and the right of foreign companies to sue governments in offshore tribunals, has not been resolved.

Each country is meant to bring a list of changes it wants to the next meeting of the TPPA-11 chief negotiators in Japan later in September to finalise proposals for their ministers when they meet in in Vietnam in November.

‘National cannot do this in the midst of the election in secret. It must include the public and the other political parties in preparing New Zealand’s list of requests for changes to this deeply unpopular agreement’, Professor Kelsey said.