In this article, the negotiation process behind the Trans-Pacific Partnership (TPP) is explained. Negotiated for five years behind closed doors, the full and final text of the TPP agreement was released on 5 November to be deliberated upon in member countries. The controversial trade agreement is slated to be signed on 4 February 2016 in New Zealand, and will come into effect if more than 6 countries with at least 85% of the GDP of the original signatories ratify it.

This series is brought to you by TPPDebate.org based on a recent NGO briefing on the Trans-Pacific Partnership (TPP) in Malaysia by Ms Sanya Reid Smith, an expert on Trade and Investment Rules. She has been monitoring the Trans-Pacific Partnership Agreement (TPPA) since 2011, and is also the resource expert for Bantah TPPA Malaysia. The entire talk is uploaded on YouTube in a seven part series and can be accessed here; this article is drawn mainly from Part 4 of the talk. The index of the series is attached at the end of the article.

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Secret negotiation is not the norm

The 12 TPP countries have been negotiating in secret, literally behind closed doors. This is different to how the climate change convention is negotiated, or the WHO Framework Convention on Tobacco Control, or environmental treaties. In those ones, as NGOs, we can go in. We can go into the room, we can receive the copies of the negotiation text, we can make interventions, we can talk to the government.

But not in the TPP. Now, the governments say that this is because trade is secret. If I’m showing my cards, we cannot conclude. But actually this is not true. Because when the same issues are negotiated in the World Trade Organization, such as trade facilitation, tariffs, government procurement… the texts are regularly released. The negotiating text. With all the square brackets where they cannot agree. So we can see what is happening. We can’t be in the room, not quite as good as the UN, but at least you see the negotiating text.

The TPP, no. Until the text was released in November last year, for five plus years of negotiations, all we had were the Wikileaks and leaks on other websites for some of the text.

Reason: the TPPA is too unpopular

And it was interesting to hear that the former US trade minister – one of the ones who started the TPP negotiations – he actually admitted something. Because, in the US, they were negotiating the Free Trade Agreement of the Americas. It was all of North, Central and South America except Cuba. But it never concluded, because they released the negotiating text.

There was uproar. All the countries, kelam kabut, everybody was opposing. They couldn’t conclude, there was so much opposition. So the US trade minister admitted this. People were asking him why he wasn’t releasing the text, because the US was demanding for it to be in secret. And he said, you know, we tried that. We released the text in the FTAA and we couldn’t conclude because there was so much opposition. So, he admitted that it was so unpopular that it had to be done in the dark. If anybody knows about it, they won’t want it.

Now, of course, the negotiation is finished. We cannot change the text. Once the text is done, then we release it to the public. We saw it in November last year. 6000 pages.

Negotiating history is needed to interpret TPPA text

But, even though it’s 6000 pages, it’s still not clear exactly what it means. Often in these agreements, when you can’t get all the countries to agree, you deliberately use an ambiguous word.

Like this biologics medicine five-year monopoly, it was very controversial. US wanted longer. So it says, ‘five years to deliver a comparable market outcome’. What does ‘comparable market outcome’ mean? Does it mean that you have to give a longer monopoly? You don’t know as a lawyer, as a matter of legal interpretation until you see the negotiating history. What was discussed in the room, even orally agreed – for example, we all agree, ‘comparable market outcome’ means 8 years. We don’t put it in the text, but we are legally bound.

Negotiating history will not be released until 4 years later.

That negotiating history, what the text means, will not be released, until four years after entering into force. So, six years from now. So we still won’t know for six years what this thing means. Because that negotiating history won’t become public.

So, the process was secret until now. Unnecessarily secret. Then it was concluded in October, text released in November, going to be voted on by the Malaysian parliament 26, 27, 28 January this year. Going to sign on the 4th of February. And then the process is ratification.

Index of the Series

This series contains 20 articles on the TPP, and can be read in any order:

• Introduction
• TPP Basics
  • Before signing – the negotiation process (you are here)
  • After signing – ratification and certification process
  • What-ifs – if we do not sign, or violate the agreement, or withdraw
  • Investment Chapter/Investor State Dispute Settlement (ISDS) – what it means for the country
  • Export Taxes on Goods – may restrict Malaysia’s movement up value chain
  • Liberalisation of services – is binding across all levels of government (federal, state and local)
• TPP Stakeholders
  • Taxpayers and citizens – who will pay for lawsuits against Malaysia
  • Business owners and investors – local businesses and Malaysian investments overseas
  • Students – intellectual property rights in education
  • Patients – intellectual property rights in medicine
  • Farmers – agriculture and food security
• TPP Impacts
  • On sovereignty – regulation, colonisation, ISDS
  • On governance – different levels of government (federal, state and local), corruption, separation of power
  • On economy – trade balance, GDP
  • On environment – environmental regulations and the environment chapter
  • On society – human rights, labour, privacy
• TPP Miscellaneous Topics
  • Geopolitics – the link with China, and TPPA as a geopolitical tool of the US
  • Corporate dominance in the US – corporate influence in US FTAs, cleared advisors within the TPPA
  • Yarn Forward Rule – How zero tariffs may still mean less exports

Transcriptions are kept chiefly ad verbatim, with some minor edits for readability. The text has also been checked by Ms Smith for accuracy.