Today, Wikileaks released the Intellectual Property chapter of the secret TPP [TransPacific Partnership] trade agreement. I am going to give excerpts from two articles on this subject, and although they may be lengthy, I think they are important reading. I do not believe that there is any such thing as being “too alarmist” over the TPP and its sister trade agreement in the Atlantic areas, the TTIP.
Breaking: Pivotal Trans-Pacific Partnership Section Revealed
Wednesday, 13 November 2013 09:39
By Staff, PopularResistance.org| Press Release
The TPP has been shrouded in secrecy from the beginning because the Obama administration knows that the more people know about it, the more they will oppose the agreement. The release of the full Intellectual Property chapter today by Wiikileaks confims what had been suspected, the Obama administration has been an advocate for transnational corporate interests in the negotiations even though they run counter to the needs and desires of the public.
This is not surprising since we already knew that 600 corporate advisers were working with the US Trade Representative to draft the TPP. This means that for nearly four years some of the top corporate lawyers have been inserting phrases, paragraphs and whole sections so the agreement suits the needs of corporate power, while undermining the interests of people and the planet.
Now from these documents we see that the US is isolated in its aggressive advocacy for transnational interests and that there are scores of areas still unresolved between the US and Pacific nations. The conclusion: the TPP cannot be saved. It has been destroyed by secret corporate advocacy. It needs to be rejected. Trade needs to be negotiated with a new approach — transparency, participation of civil society throughout the process, full congressional review and participation, and a framework that starts with fair trade that puts people and the planet before profits.
Congress needs to reject Fast Track Trade Promotion Authority as these documents show the Obama administration has been misleading the people and the Congress while trying to bully other nations. This flawed agreement and the secrecy essential to its becoming law need to be rejected.
Secret Trans-Pacific Partnership Agreement
Today, 13 November 2013, WikiLeaks released the secret negotiated draft text for the entire TPP (Trans-Pacific Partnership) Intellectual Property Rights Chapter. The TPP is the largest-ever economic treaty, encompassing nations representing more than 40 per cent of the world’s GDP. The WikiLeaks release of the text comes ahead of the decisive TPP Chief Negotiators summit in Salt Lake City, Utah, on 19-24 November 2013. The chapter published by WikiLeaks is perhaps the most controversial chapter of the TPP due to its wide-ranging effects on medicines, publishers, internet services, civil liberties and biological patents. Significantly, the released text includes the negotiation positions and disagreements between all 12 prospective member states.
The TPP is the forerunner to the equally secret US-EU pact TTIP (Transatlantic Trade and Investment Partnership), for which President Obama initiated US-EU negotiations in January 2013. Together, the TPP and TTIP will cover more than 60 per cent of global GDP.
Leaked Documents Reveal Obama Administration Push for Internet Freedom Limits, Terms That Raise Drug Prices in Closed-Door Trade Talks
U.S. Demands in Trans-Pacific Partnership Agreement Text, Published Today by WikiLeaks, Contradict Obama Policy and Public Opinion at Home and Abroad
WASHINGTON, D.C. – Secret documents published today by WikiLeaks and analyzed by Public Citizen reveal that the Obama administration is demanding terms that would limit Internet freedom and access to lifesaving medicines throughout the Asia-Pacific region and bind Americans to the same bad rules, belying the administration’s stated commitments to reduce health care costs and advance free expression online, Public Citizen said today.
WikiLeaks published the complete draft of the Intellectual Property chapter for the Trans-Pacific Partnership (TPP), a proposed international commercial pact between the United States and 11 Asian and Latin American countries.
The Wikileaks press release is here: https://wikileaks.org/tpp/pressrelease.html
Within this press release, Wikileaks gives a link from which you can download the complete text of the Intellectual Property chapter of the TPP as a pdf.
The NY Times editorial board has endorsed the TPP; Maira Sutton of the Electronic Frontier Foundation writes that the Times endorsement “[…] raises two distressing possibilities: either in an act of extraordinary subservience, the Times has endorsed an agreement that neither the public nor its editors have the ability to read. Or, in an act of extraordinary cowardice, it has obtained a copy of the secret text and hasn’t yet fulfilled its duty to the public interest to publish it. […]”
The excerpt below is from Yves Smith at Naked Capitalism. Yves writes and summarizes the subject so well that I couldn’t stand to cut much. She does her usual great job here:
[…] Word has apparently gotten out even to Congressmen who can normally be lulled to sleep with the invocation of the magic phrase “free trade” that the pending Trans Pacific Partnership is toxic. This proposed deal among 13 Pacific Rim countries (essentially, an “everybody but China” pact), is only peripherally about trade, since trade is already substantially liberalized. Its main aim is to strengthen the rights of intellectual property holders and investors, undermining US sovereignity, allowing drug companies to raise drug prices, interfering with basic operation of the Internet, and gutting labor, banking, and environmental regulations. […]
“Fast track” authority limits Congress’s role in trade negotiations. The Administration presents a finished deal, and individual members have only an up or down vote. At that point, because the pending agreements have been misleadingly presented as “pro trade,” dissenters will be depicted as anti-growth Luddites. […]
Let’s give more detail on how heinous this deal and its ugly sister, the Transatlantic Trade and Investment Partnership [TTIP], aka the Trans Atlantic Free Trade Agreement, are. They would extend the authority of secret arbitration panels to hear cases against governments and issue awards. Mind you, the premise of these panels is that some of the signatory nations have banana republic legal systems that might authorize the expropriation of assets, like factories, so foreign investors need recourse to safe venues to obtain compensation. This is a ludicrous proposition to most of the signatories, not only to signatories of the Atlantic agreement (all advanced economies with mature legal systems) as well as potential signatories like Singapore, Japan, Canada, and Australia (and while America’s judicial system leaves a lot to be desired, it can hardly be accused of being unfriendly to commercial interests).
A post in Triple Crisis by Martin Khor gives a good overview:
In the public debate surrounding the Trans-Pacific Partnership Agreement (TPPA), an issue that seems to stand out is the investor-state dispute settlement (ISDS) system. It would enable foreign investors of TPPA [e.g., the TPP] countries to directly sue the host government in an international tribunal.
In most US free trade agreements (FTAs) with investor-state dispute provisions, the tribunal most mentioned is the International Centre for Settlement of Investment Disputes (ICSID), an arbitration court hosted by the World Bank in Washington.
ISDS would be a powerful system for enforcing the rules of the TPPA, which is currently being negotiated by the US and 11 other Pacific Rim countries. Any foreign investor from TPPA countries can take up a case claiming that the government has not met its relevant TPPA obligations.
If the claim succeeds, the tribunal could award the investor financial compensation for the claimed losses. If the payment is not made, the award can potentially be enforced through the seizure of assets of the government that has been sued, or through tariffs raised on the country’s exports.
ISDS is related to relevant parts of the TPPA’s investment chapter. One of the provisions is a broad definition of “investment” which includes credit, contracts, intellectual property rights (IPRs), and expectations of future gains and profits. Investors can make claims on losses to these assets.
Under the “national treatment” provision, a foreign investor can claim to be discriminated against if the local is given preference or other advantage.
Under the clause on fair and equitable treatment, which is contained in many existing trade and investment treaties, investors have sued on the ground of non-renewal or change in the terms of a licence or contract and changes in policies or regulations that the investor claims will reduce its future profits.
Finally, investors can sue on the ground of “indirect expropriation”. Tribunals have ruled in favour of investors that claimed losses due to government policies or regulations, such as tighter health and environmental regulations.
Even though no one has seen the exact language of the text, since it is being kept under wraps, both deals are believed to strengthen and extend investor rights, which means give them easier access to the courts. Consider this description from a July presentation by Public Citizen:
What is different with TAFTA [pending Trans Atlantic Free Trade Agreement] (and the TPP) is the extent of “behind the border” agenda:
• Typical boilerplate: “Each Member shall ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the annexed Agreements.” …
• These rules are enforced by binding dispute resolution via foreign tribunals with ruling enforced by trade indefinite sanctions; No due process; No outside appeal. Countries must gut laws ruled against. Trade sanctions imposed…U.S. taxpayers must compensate foreign corporations.
• Permanence – no changes w/o consensus of all signatory countries. So, no room for progress, responses to emerging problems
• Starkly different from past of international trade between countries. This is diplomatic legislating of behind the border policies – but with trade negotiators not legislators or those who will live with results making the decisions.
• 3 private sector attorneys, unaccountable to any electorate, many of whom rotate between being “judges” & bringing cases for corps. against govts…Creates inherent conflicts of interest….
• Tribunals operate behind closed doors – lack basic due process
• Absolute tribunal discretion to set damages, compound interest, allocate costs
• No limit to amount of money tribunals can order govts to pay corps/investors
• Compound interest starting date if violation new norm ( compound interest ordered by tribunal doubles Occidental v. Ecuador $1.7B award to $3B plus
• Rulings not bound by precedent. No outside appeal. Annulment for limited errors.
And that’s alarming in light of some of the cases already brought before these panels in existing trade agreements like NAFTA. For instance:
Eli Lilly is suing the Canadian government for not having the same extremely pro-drug-company patent rules. It is seeking $500 million in damages for two drugs that Canada approve to be sold as generics. If Eli Lilly prevails, other drug companies are sure to follow suit.
Vattenfal, a Swedish company, is a serial trade pact litigant against Germany. In 2011, Der Spiegel reported on how it was suing for expected €1 billion plus losses due to Germany’s program to phase out nuclear power…
Now consider what this means. These companies are not suing for actual expenses or loss of assets; they are suing for loss of potential future profits. They are basically acting as if their profit in a particular market was guaranteed absent government action. […]
So this is the time when it is REALLY important to call or e-mail your Representative and let him or her know how terrible this deal is and how firmly opposed to it you are. Use the link to the Public Citizen overview (http://www.citizenstrade.org/ctc/wp-content/uploads/2013/07/GlobalTradeWatch_TAFTAslides_070913.pdf) or cite other posts or articles you think they should see. […]
“These companies are not suing for actual expenses or loss of assets; they are suing for loss of potential future profits. They are basically acting as if their profit in a particular market was guaranteed absent government action.”
“If the claim succeeds, the tribunal could award the investor financial compensation for the claimed losses. If the payment is not made, the award can potentially be enforced through the seizure of assets of the government that has been sued, or through tariffs raised on the country’s exports.”
Thus is the Great Taking revealed in all its plastic elastic glory. (As is Obamacare and the continuing bank bailouts and all the austerity crap, but those are subjects for another time). The loss of any potential and theoretical future profits may be sued for, and will be adjudicated by a tribunal of corporate attorneys, in secret. The compensation for losses, both in the present and in the misty imaginary future, may include seizing the assets of the government being sued. Those are your assets, people. Those assets might be buildings, lands, any amount of taxpayer monies paid to the IRS (in the USA) in the form of taxes, tariffs on our (admittedly few) exports, or – who knows what the corporations might demand? – the funds held in the social security system.
This is not “free market capitalism”. This is simply an oligarchic/corporate taking; a shake-down of nations in a magnificent and breathtaking coup. Started by former President
Cheney Bush. Carried forward, fully supported, and gleefully promoted by President Obama. And although about 170 members of the House have signed letters objecting to the fast-track method of cramming this thing through, that does not necessarily indicate an objection the TPP per se. This number also indicates that there is a large set of House members who don’t object to fast-tracking (or, presumably, again, to the trade agreement itself).
Occucards has an informative card on the TPP; you may read it and/or buy copies to pass around here: