NEWS
10 Obiter Dicta
Trans-Pacific Partnership
Some Areas of Concern
continued from front page.
henry limheng
Chapter 24 – Small and
Medium-Sized Enterprises (SMEs)
A key achievement of the TPP is its recognition of
the importance of SMEs. TPP nations have agreed to
make the provisions of the TPP accessible to SMEs
and encourage them to participate in international
trade. A Committee on SMEs will be established to
recommend ways to assist SMEs, allowing them to
take full advantage of their commercial opportunities. Although some guarantees are provided in
relation to government procurement contracts, it is
hoped that the Committee establishes further measures to spur development in this critical economic
sector.
Chapter 20 – Environmental
The TPP recognizes that commerce, when conducted
in an unsustainable manner, leads to a multitude of
environmental concerns and encourages corporate social responsibility to minimize future risks.
Unfortunately, the TPP does not address the underlying environmental issue: climate change. The TPP
discusses many concerns, such as the protection of
the ozone layer and transition to low-emission fuel
sources, but these address mere side effects of climate change and do not tackle the root problem. An
Environmental Committee will be established which
will review public submissions and provide a forum
to discuss environmental matters. Any consultations made with the Committee are only applicable
to the parties at dispute rather than an environmental standard to be adhered to by all TPP nations.
Chapter 15 Government Procurement
Government procurement represents a significant portion of government’s annual expenditure
and includes projects such as infrastructure development, equipment purchases, and large research
projects. Due to the expensive and complex nature
of these projects, contracts for these projects are
awarded through tendering processes. The TPP standardizes the tendering process and identifies which
goods and services are to be covered. The tendering
process is required when the government procurement is above a monetary threshold, and is to be
non-discriminatory to all TPP party suppliers. The
procuring entity must issue an intent to procure and
give sufficient time for interested suppliers to submit
bids. Transparency, accountability, and procedural
fairness is enhanced for government procurements
as TPP nations must establish an independent tribunal that is responsible for reviewing any complaints.
Limited transitional rules are available for developing nations. These provisions only come into effect
when individual nations reach agreements amongst
themselves, with Canada already making agreements with Australia, Brunei, Malaysia, Vietnam,
Mexico, and the US.
ê Countries participating in the TPP negotiations.
While these provisions would give access to
Canadian firms to participate in lucrative government contracts, these provisions can be damaging
to a nation’s economic health.
Expansionary fiscal policy comes in the form of tax
cuts and increased government spending. For the
policy to be effective, spending must be targeted to
domestic firms. In doing so, the government would
stabilize business profits, preventing domestic job
loss during economic downturns. If a government
cannot discriminate between domestic firms and
foreign firms when awarding contracts, the only
expansionary fiscal policy the government can rely
on is decreases to domestic taxation. Developing
nations have infantile taxation regimes and are thus
reliant on government spending to spur economic
growth. In the Canadian context, the loss of a critical economic policy may be more detrimental than
the benefits of increased transparency and quality of
government procurements.
Chapter 18 – Intellectual Propert y
Since the widespread adoption of the internet, intellectual property has become a source of economic
prosperity for developed nations. While many of
the provisions of the TPP appear similar to the
Comprehensive Economic and Trade Agreement
(CETA), there are a number of potential concerns.
Extension of Copyright Protection
Term
Copyright protection under the TPP is extended
from 50 years after the creator’s death to seventy
years after the creator’s death. While the international standard for copyright protection is fifty years
after the creator’s death, it is questionable what
gains can be achieved by extending protection for
another twenty years, given that most revenues are
earned within a few years of the content’s creation.
Regardless, this extension will result in many works
not entering the public domain for another twenty
years.
Access to Health Care
While Articles exist in the TPP regarding the promotion of public health, Doctors Without Borders
voiced strong criticism, noting that the TPP “will
raise the price of medicines for millions by unnecessarily extending monopolies and further delaying
price-lowering generic competition.” Many nations
that are part of the negotiations (such as Canada), or
are contemplating whether to join the TPP, do not
have universal drug coverage regimes. For people
in these nations, access to affordable medications
or generic drugs may be restricted, compromising public health. Given that many international
organizations recognize the right to health care to
be a fundamental human right (eg. UN, WTO), this
may continue to be a controversial point during the
ongoing negotiations of the TPP.
Fair Use
Both NAFTA and CETA require enforcement of intellectual property but neither agreement go to the
extent of the TPP. The TPP mandates that parties
establish and enforce criminal and civil procedures
for infringements of intellectual property rights,
and details these procedures at length. A limited
exception is provided for fair use of trademarks but
none is provided for copyrights, potentially stifling
the creation of derivative works as they continue to
be subj ect to the domestic law of the original creator’s nation instead of being covered by a standard
fair use regime. Demands for the release of software
source code by a TPP nation are banned under the
TPP, making future frauds—like the Volkswagen
‘defeat device’ scandal—possible under the TPP’s
intellectual property regime.