Tania S.L. Voon

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).

Australia-United States Free Trade Agreement

In this chapter, we explain and evaluate the AUSFTA primarily from an Australian perspective, given that most countries will be in a more or less analogous position to Australia when negotiating an FTA with the US. AUSFTA provides an illustration of the outcomes that countries with relatively little bargaining and economic power can expect from such an FTA. It also serves as a warning of how even an economically successful developed country may end up sacrificing its welfare, public policies and democratic processes in a dogged pursuit to cement relations with the US, in a manner that would be unlikely in the vigorous negotiating environment of the WTO. We begin by examining the way in which the AUSFTA was negotiated, before turning to some of the substantive outcomes of those negotiations in key areas such as goods, services, investment and intellectual property. Finally, we consider the impact of the AUSFTA to date and its future implications.

Implications of WTO Law for Plain Packaging of Tobacco Products

The Australian federal government recently released an exposure draft of legislation to introduce a scheme for the mandatory ‘plain packaging’ of cigarettes and other tobacco products from 2012. The scheme will prohibit the use of brand logos, graphics and colors on tobacco products and packaging manufactured or sold in Australia or imported into Australia. All packages will be the same dark olive brown color, largely taken up by graphic and textual health warnings, with brand names appearing in the same font and limited size. As Australia is set to become the first country in the world to implement such a scheme, its outcome will establish a critical precedent for both tobacco control interests and tobacco companies. Unsurprisingly, the scheme is already coming under attack through extensive advertising campaigns funded by tobacco companies and allegations of domestic and international legal violations, some of which have reached the level of formal complaints in bilateral and multilateral fora. This chapter critically analyses claims that plain packaging as envisaged by Australia would breach various agreements of the World Trade Organization. We explain in particular why the scheme is consistent with the TRIPS Agreement, the TBT Agreement, and the GATT 1994, and not covered by the SPS Agreement.

EC-Seal Products: The Tension between Public Morals and International Trade Agreements

The dispute in EC – Seal Products raises fundamental questions about the relationship between publicmorals and international trade. Can WTO members impose trade restrictions based on moral or ethicalconcerns? Under what conditions can these concerns trump existing trade liberalization commitments?The dispute was filed in 2009 by Canada and Norway against the EU, which in the same year had bannedseal products from being imported and placed on its market. According to the EU, the policy wasintroduced in response to European moral outrage at the inhumane killing of seals. The EU seal regimeincluded a series of exceptions. In particular, it allowed imports of seal products hunted by Inuit or otherindigenous communities, as well as imports of seal products processed and re-exported by EU producers.This article discusses the Appellate Body’s ruling in EC – Seal Products and some of the key legal andeconomic issues raised by this dispute.

Public Health and the Trans-Pacific Partnership Agreement

Twelve-country negotiations towards the Trans-Pacific Partnership Agreement (‘TPP’) are drawing to a close. The treaty has an ambitious agenda and could radically reshape trade in the Asia-Pacific region. At the same time, the TPP obligations have the potential to significantly restrict the ability of governments to regulate in the interests of public health. This article examines the impact that the TPP could have on two areas of public health regulation — tobacco control and access to medicines. It concludes that a number of legitimate concerns arise from the known content of the TPP, that the inclusion of a general health exception would be the preferable means of safeguarding the regulatory space of governments in relation to public health, and that United States proposals for stronger intellectual property protections that could restrict affordable access to medicines should be resisted. With negotiations shrouded in secrecy, TPP parties’ desires to promote international trade and investment must not overshadow the need of governments to be able to implement sensible and effective public health policy.

Eliminating Trade Remedies from the WTO: Lessons from Regional Trade Agreements

As the global financial crisis threatens to manifest in enhanced protectionism, the economic irrationality of dumping, countervailing, and global safeguard measures (so-called ‘trade remedies’) should be of increased concern to the Members of the World Trade Organization (‘WTO’). Long tolerated under the WTO agreements and perhaps a necessary evil to facilitate multilateral trade liberalisation, elimination of trade remedies is far from the agenda of WTO negotiators. However, a small number of regional trade agreements offer a model for reducing the use of trade remedies among WTO Members in the longer term, consistent with WTO rules and broader public international law.

Consolidating International Investment Law: The Mega-Regionals as a Pathway Towards Multilateral Rules

Pessimism abounds in international economic law. The World Trade Organization (‘WTO’) faces an uncertain future following its Ministerial Conference in Nairobi in 2015. International investment law is under attack in countries around the world, while mega-regional agreements such as the Trans-Pacific Partnership and the Trans-Atlantic Trade and Investment Partnership are beset by world events, from the United States’ federal election to the unexpected Brexit outcome. Yet the appetite of numerous States to continue forging plurilateral trade and investment deals provides some cause for hope. Viewed alongside other institutional developments including consensus-building work at the United Nations Conference on Trade and Development and the United Nations Commission on International Trade Law, the potential arguably now exists for credible movement towards multilateral rules in investment law. While the WTO’s current negotiating stalemate highlights the difficulties in reaching agreement among 164 Members, international trade law offers lessons for working towards multilateralism in the international investment law field. Alongside informal discussions about a world investment court, mega-regionals provide a vehicle for future multilateral investment rules, particularly through the Comprehensive Economic and Trade Agreement between Canada and the European Union, and the Regional Comprehensive Economic Partnership currently under negotiation in Asia.

Exploring the Meaning of Trade-Restrictiveness in the WTO

Trade-restrictiveness is a familiar concept across various provisions and agreements of the World Trade Organization (WTO), but its precise meaning remains vague. In many WTO disputes, the existence or degree of trade-restrictiveness of a challenged measure is simply assumed or addressed in a few brief sentences. Yet whether a measure is more trade-restrictive than necessary, or more trade-restrictive than a proposed alternative measure, is crucial to the legality of a range of measures currently in place around the world, some under challenge in the WTO. A careful analysis of the existing caselaw and treaty text — focusing on Article 2.2 of the Agreement on Technical Barriers to Trade and the general exceptions in the General Agreement on Tariffs and Trade 1994 and the General Agreement on Trade in Services — demonstrates that while the existence of discrimination is likely to restrict trade, discrimination is not necessary to establish trade-restrictiveness, which also necessarily arises from direct barriers to market access such as import bans. In the absence of an explicit barrier to imports, a WTO panel is likely to focus on the extent to which a challenged measure negatively affects the competitive opportunities of imported products vis a vis domestic products.

Implications of International Investment Law for Tobacco Flavouring Regulation

Several countries now restrict the use of particular ‘flavours’ in cigarettes and other tobacco products. Various flavours may make cigarettes more attractive to consumers in general (for example by making them easier to smoke) or to particular groups such as children and young people. Domestic regulatory measures restricting tobacco flavouring therefore have a clear health objective. Nevertheless, tobacco companies may threaten to challenge these measures under international investment law, as they have done recently in relation to other tobacco control measures. Understanding the nuances and complexities of bilateral investment treaties (and investment chapters of preferential trade agreements) is therefore crucial for governments in designing flavouring measures and withstanding complaints in the context of foreign investment. Investment obligations do typically incorporate flexibility for governments to implement public health and other public policies, but governments must carefully craft flavouring measures for the relevant health purpose, avoiding unnecessary discrimination against foreign investors or investment. Governments should also take care in making any representations to existing or potential investors about the future of tobacco regulation in their territory. An analysis of flavouring measures under international investment law is vitally important as the Fourth Conference of the Parties to the WHO Framework Convention on Tobacco Control gets underway.

The TRIPS Waiver as a Recognition of Public Health Concerns in the WTO

Patent protection for pharmaceutical products as mandated in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO) represents a potentially signicant obstacle to public health measures, particularly for developing countries seeking to import medicines to deal with serious public health concerns, such as the HIV/AIDS crisis. Since 2001, WTO members have acknowledged this tension while working slowly towards a formal amendment of WTO rules that would facilitate compulsory licensing of pharmaceuticals for the benefit of least-developed country (LDC) members, as well as other members lacking sufficient manufacturing capacity to use the existing flexibilities in the TRIPS Agreement in respect of public health. As the first shipment of drugs from Canada to Rwanda under the new arrangements has recently taken place (in September 2008), we take opportunity to reflect on the steps taken to date within the WTO to resolve the patent/public health tension.In section 2, we explain why WTO members needed to reform the TRIPS Agreement in order to improve access to medicines for public health reasons, before turning in section 3 to the temporary solution reached in the form of a waiver of certain TRIPS obligations. In section 4 we then consider the more permanent solution of a formal amendment that is envisaged for the future. This chapter then turns in section 5 to consider how the waiver remains underutilized, suggesting that members need to re-evaluate their commitment to affordable medicines and test the workability of the waiver before making it permanent. Finally, in section 6 we examine the additional limited exceptions to patent protection granted in the waiver for bilateral free trade agreements and regional patent systems. However, we conclude that the potential of this use of the waiver is also not being realized.