Elizabeth Sheargold

The Trans-Pacific Partnership

This article provides an overview of the recently concluded Trans-Pacific Partnership Agreement (TPP), a treaty the parties have described as comprehensive and ambitious, yet also representing a balance of competing interests. The article focuses on the TPP’s chapters relating to investment, services, intellectual property and regulatory coherence, each of which provides insight into the motivations that drove the conclusion of the TPP and the negotiating dynamics that determined its final content. In areas such as investment, the TPP takes a more balanced approach than many earlier agreements, providing greater safeguards for the regulatory autonomy of states while still embodying core protections for foreign investors. In relation to intellectual property and services, the TPP goes beyond earlier agreements in several key respects, such as preventing the imposition of local presence requirements for service providers or requiring longer copyright terms than those demanded by other international treaties. The TPP chapter on regulatory coherence is one of the most novel features of the treaty, as regulatory coherence is not frequently included in earlier trade agreements, demonstrating the increased focus of states on addressing regulatory barriers to trade and investment. While all of these elements of the TPP are interesting in their own right, given the number and size of the parties involved in the agreement, they also provide valuable guidance about the direction of other ongoing and future preferential trade agreement negotiations, such as the proposed Transatlantic Trade and Investment Partnership (TTIP) and Trade in Services Agreement (TiSA).

Protecting the autonomy of states to enact tobacco control measures under trade and investment agreements

Since the adoption of the WHOs WHO Framework Convention on Tobacco Control, governments have been pursuing progressively stronger and more wide-reaching tobacco control measures. In response, tobacco companies are frequently using international trade and investment agreements as tools to challenge domestic tobacco control measures. Several significant new trade and investment agreements that some fear may provide new legal avenues to the tobacco industry to challenge health measures are currently under negotiation, including the Trans-Pacific Partnership (a 12 party agreement of Asia-Pacific regional countries) and the Transatlantic Trade and Investment Partnership (an agreement between the USA and the European Union). This commentary examines different options for treaty provisions that the parties could employ in these agreements to minimise legal risks relating to tobacco control measures. It recommends that parties take a comprehensive approach, combining provisions that minimise the potential costs of litigation with provisions that increase the likelihood of a state successfully defending tobacco control measures in such litigation.

Global Governance: The World Trade Organization’s Contribution

Democracy and administrative law concern ideas of governance, legitimacy, and accountability. With the growth of bureaucracy and regulation, many democratic theorists would argue that administrative law mechanisms are essential to achieving democratic objectives. This article considers the World Trade Organization’s (WTO) contribution to governance both in terms of global administrative law and democracy. In relation to administrative law, it first explores the extent to which the WTO’s own dispute settlement process contributes to this area. Second, it considers the operation of administrative law principles embedded within the WTO Agreements on Members. For example, the WTO Agreements require that certain laws be administered “in a uniform, impartial and reasonable manner.” This obligation was recently considered by the Appellate Body, but uncertainty remains about the scope this provision has to permit WTO panels to review domestic administrative practices. In relation to the WTO’s contribution to democracy, this article first considers the challenges and limitations of the current system of decision making within the WTO and compares it to democratic theory. Second, it examines how democracies comply with the findings of WTO dispute settlement tribunals and how compliance could be improved. It concludes by speculating on the implications of this discussion for public international law more broadly.

The TPP and Good Regulatory Practices: An Opportunity for Regulatory Coherence to Promote Regulatory Autonomy?

Chapters relating to regulatory coherence or cooperation are likely to be significant features of new preferential trade agreements, including the Trans-Pacific Partnership (TPP). While the potential for harmonisation of standards or institutional cooperation to impact on the regulatory autonomy of treaty parties has been well considered, this article focuses on those elements of regulatory coherence that relate to domestic processes for the development of regulations. It examines whether the adoption of ‘good regulatory practices’ in accordance with the TPP will help to ensure that measures states enact to protect non-economic interests (such as the environment or public health) are consistent with other key obligations of international trade and investment law. Although many elements of good regulatory practice mirror the criteria used to distinguish legitimate regulatory measures from disguised protectionism, there is no guarantee that a tribunal will come to the same conclusions as those reached during a domestic impact assessment.

Good Governance Obligations in International Economic Law: A Comparative Analysis of Trade and Investment

International trade and international investment agreements typically contain provisions requiring the parties to comply with good governance principles, such as procedural fairness and transparency. These provisions are increasingly the subject of disputes before international tribunals. The scope of these obligations is often unclear, as treaty provisions usually employ broad standards rather than specific rules. For example, the requirement to accord investors ‘fair and equitable treatment’ is common in international investment agreements, while WTO agreements demand the ‘reasonable and impartial administration of measures’. This paper compares approaches in international investment and trade law to three aspects of good governance: procedural fairness, transparency, and reasonable administration of measures. Despite textual differences, the standards adopted by these two regimes are remarkably similar. Consequently, decisions from these two branches of international economic law may provide states, tribunals, market participants and scholars with valuable insights into the conduct required by good governance obligations.

Regulatory Autonomy and the Evolution of Australia’s Participation in PTAs and BITs: The Evolution of Australian Policy on Trade and Investment

In just over 30 years, from 1983 through to 2015, Australia entered into 21 BITs and 10 PTAs.1 The enthusiasm of successive Australian governments for these bilateral and regional economic agreements continues, with the TPP having been signed by 12 Pacific-rim countries including the US, Japan, Chile and Malaysia in February 2016 (although the US has now withdrawn from that agreement)2 and more PTAs under negotiation. These include: the RCEP being negotiated among the ten ASEAN member States and those countries with PTAs with ASEAN (Australia, China, India, Japan, the Republic of Korea, and New Zealand); separate bilateral PTAs with India, Indonesia and the EU; the TiSA being negotiated outside the WTO to enhance liberalisation of trade in services among 23 WTO Members including the EU representing its 28 Member States (with negotiations led by the US, the EU and Australia); and the EGA being negotiated by representatives of 43 WTO Members to reduce tariffs on environmentally friendly goods.3 Yet both concluded agreements and ongoing negotiations have met with varying levels of controversy in Australia. Apart from the fear that bilateral and regional negotiations may distract from multilateral efforts to liberalise trade, one