As the ink began to dry on the Trans-Pacific Partnership (TPP) trade deal, signed in Atlanta this week, talk in Asia turned to the winners and losers it would create.
Encompassing 40% of global trade, the TPP is viewed as the most significant development in global trade negotiations for a generation and has been hailed by many as “a game changer” after decades of failed World Trade Organisation (WTO) talks. It will remove an estimated 98% of tariffs in a bloc that accounts for about one-third of global trade and has been hailed as “a blueprint for future trade and investment agreements”.
“The academic in me is a bit disappointed as the academic would say you should hit 100%,” Deborah Elms, chair of the Asian Trade Centre tells GTR. “But the reality is that will never happen, so the question is: how far off 100% are you? I think we’re looking at 97% or 98% overall. Even sectors that didn’t get everything they want for the most part got more than they have now.
“The agreement as a whole is definitely a game changing agreement, even with a few gaps – a couple of agricultural items, we allowed more state-owned enterprises [SOEs] to be carved out than we might have expected, but that’s about it. Almost all of the objectives people had early on have been largely met.”
In trade finance terms, the TPP is likely to galvanise the flow of capital around the Pacific Rim. While there were no provisions in the deal to counter perceived currency manipulation, the overall perception of Asia as a predictable and secure place to do business will likely increase, with harmonisation and regulatory consistency increasing in line with transparency in the 12 member states.
Numerous studies have singled out Vietnam as the country likely to enjoy the most benefit from the TPP, coming as it does from the lowest point of economic development of the member states.
“However, this should be a win-win agreement for all parties and every member state will be able to benefit from the agreement. In the final analysis, this is a win for global trade at a time when an impetus for growth is badly needed,” says Eugene Lim, chair of the Asia Pacific commerce practice at law firm Baker & McKenzie
Meanwhile, as Asia Pacific leaders queued up to hail the significance of the breakthrough, Australia’s new Prime Minister Malcolm Turnbull can arguably be most satisfied with what he has achieved. In a seeming volte face from US negotiators that had previously been opposed to such a move, the tobacco industry was exempt from the investor-state dispute settlement (ISDS) clause in the TPP, meaning companies will not be able to sue governments for anti-tobacco legislation.
Protestors in Australia, with its plain packaging regulations, had feared a series of lawsuits under the provision, with the tobacco industry already pursuing the Australian government in the WTO through lawsuits brought by other governments, over loss of earnings.
Furthermore, Australia also managed to curtail intellectual property protection on biologics – a form of medicines – to five years, with the US government keen to extend the IP protection. This, it is hoped, will allow certain patients to access cheaper treatments.
“After the Hawaii talks, the US asked for a compromise of eight years. Australia remained steadfast in defending five years of protection. This was pretty gutsy by Robb and Turnbull,” Dr Matthew Rimmer, an IP expert at the Queensland University of Technology, tells GTR.
“This is why the TPP is not called a ‘free trade agreement’. There are hundreds, even thousands, of special cases where the move to freer terms of trade take place only over a period of years,” Fred Burke, Baker & McKenzie
While the final text is yet to be seen, it’s anticipated that carve outs for certain SOEs will also be made in order to assuage governments in Malaysia, Singapore and Vietnam, while tariffs have been allowed to remain on certain “sensitive” groups, such as rice imports to Japan.
“This is why the TPP is not called a ‘free trade agreement’. There are hundreds, even thousands, of special cases where the move to freer terms of trade take place only over a period of years, or they are subject to strict Rules of Origin (ROO) requirements, or deemed too sensitive to open up to foreign competition. In these and other cases the results fall short of ‘free trade’,” Fred Burke, managing partner at Baker & McKenzie, Vietnam said in an email exchange.
While a general sense of satisfaction permeates through the trade sector, there’s a realisation that in some respects, the real work starts now. Much has been made of the difficulty the US government is likely to face in forcing the deal over the line in Washington DC, but neither is it likely to pass without a whimper in many parts of Asia Pacific. Concerns over the transparency of the negotiations have been felt around the bloc.
“Interestingly, having spoken with members of Vietnam’s National Assembly about this just weeks ago, I found their concerns and objections similar to those being voiced in the US Congress,” Burke says. “They are worried, since they have not seen the text yet and they are hearing all kinds of sensationalist warnings in the media, that the impact will be to hurt household farmers as protective duties on the import of industrialised foreign agricultural products are reduced.”
In Malaysia, with anti-government protests dominating politics, it is unlikely to face an easy passage. Issues around the impact on dominant SOEs will be tough to overcome, while Prime Minister Najib Razak’s promise of a “rigorous debate” in parliament could potential hamper its progress.
“The IP Chapter is loaded in favour of pharmaceutical companies and biotechnology developers,” Matthew Rimmer, Queensland University of Technology
In Australia too there has been a palpable negative swell around the TPP and the various trade agreements the country is negotiating, mainly around transparency, but also on particulars such as the potential impact on healthcare and the deleterious effect on the labour market.
“The IP Chapter is loaded in favour of pharmaceutical companies and biotechnology developers. Médecins Sans Frontières is deeply concerned that the deal will raise the cost of medicines. The Investment Chapter still enables drug companies, food and drink manufacturers, and alcohol vendors to challenge government regulations in foreign investment tribunals. The exceptions for public health under ISDS could be seen as too narrow and limited,” Rimmer says.
While no deadline has been set on formal ratification, it is likely that the TPP contains a mechanism to allow it to pass into effect without the participation of all 12 member states, so long as a certain quota is satisfied.
“You don’t have to have all 12 economies there at the start. The rules have been drafted so you can have probably eight members covering ‘x%’ of global trade, because they want to make sure to have both the US and Japan at the start. But this gives some wriggle room to countries to decide we don’t want to be there at the beginning,” Elms says.
There is also the question of China: the largest trading nation in the world was a conspicuous absentee from negotiations, despite having been invited to join. It is an active participant in talks around an Asean-backed Regional Comprehensive Economic Partnership (RCEP – viewed as many as a regional rival to the TPP), but the lack of stringency over SOEs and currency manipulation have arguably left the door open to China to enter the agreement further down the line.
“There’s a lot of internal reform in China: SOE reform, financial reform, Rmb reform – all of these are to open up the domestic market for more international participation,” Rocky Tung, senior economist at the Hong Kong Chamber of Commerce tells GTR. “It’s trying to level the playing field between SOEs and private enterprise. But at this point I don’t think China is ready to engage in such a trade agreement. It’s working towards opening up and at some point there may be more conversations between China and these existing members.”
In certain quarters, there’s optimism that having negotiated this hurdle, TPP may pass for ratification before the US primaries begin in 2016. In most quarters in Asia, however, this is a notion that appears fanciful at best.