11 November 2017
Labour largely endorses National’s TPPA; now it’s time for consultation and review
Auckland University law professor Jane Kelsey is ‘disappointed, but not surprised’ that the Labour government has
endorsed the Trans-Pacific Partnership Agreement, with the suspension of a limited range of items, at the ministerial
and leaders’ meetings in Da Nang, Viet Nam.
The failure of the meeting to conclude the new deal – rebranded the Comprehensive and Progressive Agreement for
Trans-Pacific Partnership (CPTPP) – means there is now time for the new government to conduct in-depth consultations
over its proposal to adopt the TPPA.
To have credibility the government must also commission the robust independent analysis that Labour called for in
opposition, including realistic models that also cover the broader economic implications, especially for jobs and income
distribution. That needs to include non-economic impacts on environment, health, human rights and the Treaty of
‘If the economics don’t stack up, as Labour said they didn’t with the original TPPA-12, then the new deal should not
proceed’ said Professor Kelsey.
‘At this stage, the new government needs to give priority to its proposed full and participatory review of trade policy,
and freeze existing and future negotiations until that is done.’
The draft ministerial statement from Da Nang has annexed a list of provisions being suspended, pending any future
re-entry by the US. ‘This shows toxic items remain in almost every chapter, even if some of the worst are suspended
pending a hypothetical US re-entry. However, their mere presence will ensure they resurface in future agreements’,
Professor Kelsey said.
‘Labour came some way to recognising the systemic problems with the TPPA, not just the imbalances of power in favour of
foreign investors and investor-state dispute settlement (ISDS). But not far enough. Vietnam and Canada held out for
more. Why didn’t we?’, she asked.
Having matched the list against the texts, Professor Kelsey says the biggest relief will be for Pharmac – although the
spectre of the US returning remains a threat. Retaining those suspended measures in the text runs the risks they will
become precedents. Japan has already proposed them in the Regional Comprehensive Economic Partnership (RCEP).
There is no change to the pro-investor rules or the core investor-state dispute settlement (ISDS) mechanism. A provision
that would allow foreign investors to use the TPPA’s ISDS mechanism to enforce contracts for infrastructure or natural
resources has been suspended, as has the ability to challenge measures affecting certain financial investments. But
investors can still use ISDS to enforce their special rights under the investment chapter, and the delegitimised ISDS
process remains intact.