The #TPP text reveals some subtle shifts in governments’ approach to financial and investment regulation in trade deals.
For the uninitiated, the text for the 12-nation Trans-Pacific Partnership (TPP) has been kept secret for years. Yesterday, the governments dumped 30 plus chapters into the public domain.
The “green flag” has supposedly been waved for the debate to begin. As someone with the rare and terminal condition of having read many trade agreement texts, I was skeptical that a public text would add up to many changed positions. That’s in part because trade debates are often more about politics than substance, and in part because these texts don’t vary that much.
For example, investor-state dispute settlement (ISDS) is the most important institutional innovation in recent trade pacts. This allows foreign investors to challenge host government regulations for cash compensation outside of national courts. While lawyers pay a lot of attention to how the fine print of these pacts vary, the fundamental governance aspects of ISDS (ad hoc tribunals, no appeals, cash remedies, ample treaty shopping opportunities) are remarkably constant over 3,000 plus pacts around the globe. TPP is no exception.
Nonetheless, there is some variance at the margins. I took a look at the TPP’s investment chapter, financial services chapter, and a general exception related to balance of payments. For the wonky at heart, here is a quick and dirty run-down of the changes relative to past pacts and texts (memo – Pro-state and pro-investor changes in TPP).
Apologies in advance, as I make no real attempt to explicate anything in much detail. The audience is probably only those people who really care about the difference between the final TPP text (on the one hand), and (on the other) leaked text from January 2015, Korea FTA (Obama’s most recent major trade deal), and the WTO’s services agreement. Let me know if I have gotten anything wrong.
I group the textual changes into a few buckets: pro-investor, pro-state, mixed/cosmetic, and pro-contract norms. I include the latter as a separate category because some investment tribunals have allowed free-floating treaty obligations to substitute for specific obligations that specific states and specific investors hammered out with each other. (This divergence is important for both normative and empirical reasons, as one of the supposed channels connecting treaties to economic growth is through promoting contract sanctity.)