A Requiem for the Trans-Pacific Partnership: Something New, Something Old and Something Borrowed?

Journal article by Rodrigo Polanco and Sebastian Gomez Fiedler in Melbourne Journal of International Law 18/2

ABSTRACT: On 4 February 2016, after almost seven years of negotiations, the Trans-Pacific Partnership Agreement (‘TPP’) was signed by 12 negotiating countries. The TPP was then labelled by all signatory countries as a ‘new’, ‘high standard’, and ‘21st century agreement’. However, the ratification process of the agreement was stalled and most likely in a definitive way, after the United States decided to withdraw from the TPP in January 2017. Before regretting this development, looking back to the halt of the ratification process of the TPP one can ask how much innovation this treaty really had and the usefulness of mourning the failure of having a TPP agreement, either in terms of future usage of TPP text, or in terms of political relevancy. This article aims to describe the level of novelty of the TPP, specifically in comparison with existing trade and investment agreements between TPP signatory countries, notably the United States. For that purpose, we have focused on the core disciplines of the agreement that were highlighted as novelty parts of the TPP, or that generated debate during the negotiation of the treaty. As a benchmark, we have compared the texts of the previous treaties concluded between TPP signatory states, with the TPP chapters on investment, government procurement, regulatory coherence, sustainable development, intellectual property, cross-border trade in services, telecommunications, electronic commerce, competition, and state-owned enterprises, small and medium-sized enterprises (‘SMEs’), transparency and anti-corruption. The article concludes that the TPP was largely ‘Made in America’ — the same country that triggered its demise — as the structure and content of the treaty clearly follow the texts of previous agreements concluded by the United States. However, the influence of other TPP signatories is also perceived in the final text, notably Australia, Canada, Chile and Peru. We also conclude that some parts of the TPP were not particularly novel for signatory countries, as the treaty built on existing trade and investment agreements, offering a consolidation of commitments already present in treaties in force between TPP signatories. However, the TPP also delivered innovation, by including certain disciplines that have not been traditionally established in preferential trade agreements (like regulatory coherence and e-commerce) and others that have benefited from a larger development compared to existing agreements (like intellectual property and sustainable development). Both consolidation and innovation features can be useful for a TPP 11 or for future preferential trade agreements.