The TPP: A Living Agreement

President Obama has called the TPP a “trade agreement for the 21^st century.”  The implication is that this agreement goes a step beyond past trade agreements.  And in at least one critical way this appears true.

As Stan Sorscher explains, the TPP appears to be a “living” agreement, by which he means that the parties to the agreement are not bound by the specific terms of the agreement but in fact enjoy mechanisms that allow them to extend its reach as desired:

The recently released text establishes roughly 20 committees to manage trade in agriculture, government procurement, the Internet, food safety, financial regulation, and other topics covered in the deal. Some committees have narrow authority, but others have open-ended scope, such as the Committee on Trade in Goods which will “…undertak[e] any additional work that the Commission may assign to it.”

So, what is this “Commission,” established under TPP? It coordinates work among the Committees. It also interprets provisions of the agreement. In our tradition, that authority belongs to courts.

The Commission may also “take such other actions as the Parties may agree.” If we are unclear on what that means, we can let the Commission explain to us exactly what it has the authority to do. . . .

The charge and work of the Commission is described Chapter 27 of the agreement.  Here are its first two articles:

Article 27.1: Establishment of the Trans-Pacific Partnership Commission

The Parties hereby establish a Trans-Pacific Partnership Commission (Commission) which shall meet at the level of Ministers or senior officials, as mutually determined by the Parties. Each Party shall be responsible for the composition of its delegation. 

Article 27.2: Functions of the Commission

1. The Commission shall:

(a) consider any matter relating to the implementation or operation of this Agreement;

(b) review within 3 years of entry into force of this Agreement and at least every 5 years thereafter the economic relationship and partnership among the Parties;

(c) consider any proposal to amend or modify this Agreement;

(d) supervise the work of all committees and working groups established under this Agreement;

(e) establish the Model Rules of Procedure for Arbitral Tribunals referred to in Article 28.11.2 and Article 28.12, and, where appropriate, amend such Model Rules of Procedure for Arbitral Tribunals;

(f) consider ways to further enhance trade and investment between the Parties;

(g) review the roster of panel chairs established under Article 28.10 every 3 years, and when appropriate, constitute a new roster; and

(h) determine whether the Agreement may enter into force for an original signatory notifying pursuant to paragraph 4 of Article 30.5.1 (Entry into Force).

2. The Commission may:

(a) establish, refer matters to, or consider matters raised by, any ad hoc or standing committee or working group;

(b) merge or dissolve any subsidiary bodies established under this Agreement in order to improve the functioning of this Agreement;

(c) consider and adopt, subject to completion of any necessary legal procedures by each Party, any modifications of ¹:

(i) the Schedules contained in Annex 2-D (Tariff Elimination), by accelerating tariff elimination;

(ii) the rules of origin established in Annex 3-D (Specific Rules of Origin); or

(iii) the lists of entities and covered goods and services and thresholds contained in each Party’s Annex to Chapter 15 (Government Procurement);

(d) develop arrangements for implementing this Agreement;

(e) seek to resolve differences or disputes that may arise regarding the interpretation or application of this Agreement;

(f) issue interpretations of the provisions of the Agreement;

(g) seek the advice of non-governmental persons or groups on any matter falling within the Commission’s functions; and

(h) take such other action as the Parties may agree.

3. Pursuant to paragraph 1(b), the Commission shall review the operation of this Agreement with a view to updating and enhancing this Agreement, through negotiations, as appropriate, to ensure that the disciplines contained in the Agreement remain relevant to the trade and investment issues and challenges confronting the Parties.

4. In conducting a review pursuant to paragraph 3, the Commission shall take into account:

(a) the work of all committees, working groups and any other subsidiary bodies established under this Agreement;

(b) relevant developments in international fora; and

(c) as appropriate, input from non-governmental persons or groups of the Parties. 

In short, if this agreement is approved, governments can transform its terms and reach at will, including adding new countries.  And the operating principles are clear: more privatization and freedom of action for corporations, resulting in more opportunities for private profit.