The Trans-Pacific Partnership Agreement (TPPA) contains 30 chapters of legal text and technical language involving 6000 over pages and two million plus words. The chapters in the agreement ranges from issues involving tariff’s, government regulations, workers, environment, medicine, government procurement, investor-state dispute settlement, state owned enterprise etc.
The Malaysian parliament will debate the trade agreement on the 26th and 27th January, 2016. The debate in the country on the agreement has been quite limited However, the government, political parties, NGOs, think-tank including academics have opined on the agreement. And it appears there are divergent and sometimes outright contradictions in their response to the TPPA.
The citizen asks whether prices of medicine will increase in a post TPPA environment. The Malaysian government says, prices will not increase. However, the Prime Minister of New Zealand says price will increase and patents extension will happen in a post- tppa environment.
This, and other matters relating to the TPPA have remained unanswered despite Datuk Seri Mustapha Mohamed’s best efforts in trying to convince Malaysians.
I have posited two sets of five questions in the last two days. This is the third and final set of questions for MITI and will bring it to a total of 15 questions. My FB friends and Twitter followers have contributed to these questions.
I hope the trade minister would reciprocate with answers.
- Robert French, Chief Justice of Australia’s Supreme Court, has labelled ISDS as a system which cuts into the democratic power of Australian courts after Philip Morris dragged the Australian government to a private arbitration tribunal.
- In the Intellectual Property Rights and E-Commerce chapters, Internet Service Providers have been given extrajudicial powers to unilaterally remove any file, (image, video, document) that Malaysians upload. Furthermore, the personal account (e-mail, etc) of that particular user can be removed if there is a complaint of a breach of copyright. However, neither the complainant nor the ISP need to prove that an actual breach has taken place, only an allegation is sufficient.
- Has Malaysia fully considered the impact of the Most Favoured Nation (MFN) clause in the investment chapter? MFN requires foreign investors to be treated no less favourably in like circumstances to investors from third countries. It gives foreign corporations from TPP states the rights accorded to investors under any other trade deal that Malaysia has signed, no matter which country it was signed with. Hence, no matter how carefully the provisions in the TPP are drafted and the exceptions won, parties to the TPP are in fact not confined to the TPP but can choose the treaty that has the most favourable provisions for it.
- Is the Government aware that under the US Bipartisan Congressional Trade Priorities and Accountability Act of 2015, the US President is legally required to certify other TPPA countries’ compliance with the agreement? This means that the US must be satisfied with the laws, regulations and amendments Malaysia enacts to implement that TPPA, and opens the door to interference with our sovereign law- making processes, as has been documented in other cases. For example, in the case of Peru, US officials were directly involved in drafting Peru’s laws, in order to meet the certification requirements for the entry into force of the Peru-US FTA.
- Has the Government assessed the implications of the TPPA on our ability to meet our climate change obligations under the Paris Agreement, in particular, our Intended Nationally Determined Contribution (INDC)?
He says that “Arbitral tribunals set up under ISDS provisions are not courts. Nor are they required to act like courts. Yet their decisions may include awards which significantly impact on national economies and on regulatory systems within nation states”. Elsewhere in his article, he notes that “the significance of ISDS arbitral processes is global. They have general implications for national sovereignty, democratic governance and the rule of law within domestic legal systems”[French RS (2014) ‘Investor-State Dispute Settlement — A Cut Above the Courts?’ Supreme and Federal Court Judges Conference. Darwin.].
Why would the Malaysian government sign on to an agreement that could undermine national sovereignty, and its policy making space – necessary for governments to manage the affairs of the nation?
Why is the Malaysian government agreeing to a trade pact that potentially violates rule of law and that individuals should be given the right to a fair trial. Would the government consider doing a Human Rights Impact Assessment on the TPPA?
The government needs to state its positon on the US Certification process. Would the Malaysian government to US to dictates on changes to laws and regulation resulting from certification.
The right of foreign corporations to challenge any changes – including environmental measures, policies and regulations – that might negatively impact their profits are strongly entrenched in the investment chapter and ISDS provisions of the TPPA. In other words, the power of corporations to use ISDS could strongly undermine our INDC, if corporations decide to fight the necessary resulting regulatory changes in favour of addressing climate change.