Exploring the Trans-pacific Partnership's Complexities Through the Lens of Its Intellectual Property Rights Chapter
| Jurisdiction | United States,Federal |
| Citation | Vol. 31 No. 3 |
| Publication year | 2017 |
Exploring the Trans-Pacific Partnership's Complexities Through the Lens of Its Intellectual Property Rights Chapter
Max Rubinson
The Trans-Pacific Partnership (TPP) is a multilateral trade agreement negotiated between twelve Pacific-Rim countries, including the United States. Despite receiving significant criticism, the agreement ultimately represents a delicate balance of concessions intended to promote global economic stability and increase cooperation between member nations. One way in which the TPP increases cooperation is by harmonizing intellectual property rights across member nations. In doing so, the TPP also establishes a sensible regulatory regime for biologic medicines that provides strong incentives to innovate while safeguarding access to affordable medicines. Unfortunately, in light of an executive order issued by President Donald Trump, it appears likely that the United States may withdraw from the agreement. This Comment urges U.S. lawmakers on both sides of the aisle to press the Trump Administration to reconsider withdrawal. Ultimately, this Comment argues that the U.S. Congress should vote in favor of implementing the TPP, should such an opportunity arise.
The Trans-Pacific Partnership (TPP) is a multilateral trade agreement between the United States and eleven other Pacific Rim countries1 that proponents claim will rewrite the rules of international trade.2 In addition to reducing tariffs, the TPP addresses issues related to intellectual property, competition, and investment.3 Negotiated largely in secret, the TPP has received
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significant criticism, particularly for its attempt to harmonize intellectual property rights across member states.4 Moreover, the agreement has faced opposition from lawmakers both in the United States and abroad.5 However, after a protracted negotiation process lasting nearly six years, an agreement was finally reached in Atlanta, Georgia on October 5, 2015.6
Critics have come out in opposition to the agreement's provisions regulating pharmaceutical products, particularly biologic medicines,7 fearing that the agreement will lead to increased healthcare costs in member nations.8 Others argue that the agreement provides inadequate protection to incentivize medical innovation.9 More alarmist voices around the globe see the TPP as simply an imperial quest by the United States for foreign markets, arguing that the U.S. delegation used its superior negotiation power to secure favorable trading positions to the detriment of its trading partners.10
While some of these aforementioned concerns are reasonable, it may not be time to sound the alarm over the TPP just yet. Far too often, discussions over its various provisions seem to devolve into a set of reductive platitudes. However, many important aspects of the deal still need to be explored and analyzed. Luckily, that opportunity is finally here—the official text of the TPP has at last
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been released to the public,11 providing an opportunity for a more meaningful analysis of the deal's text and its potential implications. Ultimately, this Comment argues that the final text of the TPP represents a delicate balance of concessions intended to promote global economic stability and peace by lowering trade barriers and increasing cooperation. Thus, it may be time for the media, scholars, and politicians alike to temper their attitudes towards the deal. Moreover, this Comment will provide an analysis of the TPP's provisions regarding biologic medicines and discuss the potential impact these provisions will have on competition within the pharmaceutical industry and public access to medicines. This Comment will also address the concerns raised over the procedural aspects of negotiating large-scale, multilateral free trade agreements, and the extent to which these concerns are legitimate. This Comment will conclude by arguing that the U.S. Congress should ratify the TPP, as the agreement provides the United States with an opportunity to reestablish a foothold in Asia and create a level playing field in the region in the face of an ascendant China. The TPP will not only advance U.S. interests by opening new markets and establishing economic stability, but it will also improve labor standards, address concerns over the environment, and balance incentives to innovate with access to affordable medicine across the Pacific Rim.
A. What Is the Trans-Pacific Partnership?
The TPP is a multilateral trade agreement between twelve Pacific Rim countries, including Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States, and Vietnam.12 Delegates from the twelve countries—who together account for about forty percent of global GDP—negotiated the treaty over the course of almost six years.13
The agreement itself is unlike any other traditional free trade agreement (FTA) because it is a comprehensive plan to coordinate national economic policies.14 The TPP does more than liberalize Asian economies through
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comprehensive tariff reduction; it addresses issues related to intellectual property, competition, and investment.15 The chapter covering intellectual property rights has garnered much controversy and disagreement, in particular the provisions regulating biologics and other pharmaceutical products.16
The Obama Administration heralded the TPP as an opportunity to rewrite the rules of global trade—rules that would increase U.S. exports, grow the U.S. economy, and strengthen the U.S. middle class.17 Under the Obama Administration, the Office of the United States Trade Representative (USTR) projected that the TPP would lower trade barriers on U.S. products across the twelve countries.18 Many critics see the TPP as just another opportunity for the United States to impose its pro-business (and in the opinion of some, anti-competitive) policies on its trading partners.19 It is worth noting that U.S. government rhetoric somewhat reinforces this notion; according to the USTR, "[t]he rules of the road are up for grabs in Asia," and the United States must "write those rules" in order to save "American jobs" and maintain a position of leadership in Asia.20 According to the USTR, the TPP is a "landmark trade agreement that reflects America's values and gives workers the fair shot at success they deserve."21 The TPP is considered the forerunner to the "equally secret[ive]" Transatlantic Trade and Investment Partnership (TTIP), which the United States and the European Union are currently negotiating.22 In fact, the TPP is just the first of three U.S.-backed economic treaties, the third being the Trade In Services Agreement (TISA), which is set to cover fifty-two countries worldwide.23
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B. Ratifying the Trans-Pacific Partnership in the United States
On February 4, 2016, U.S. Trade Representative Michael Froman formally signed the TPP in New Zealand.24 However, under U.S. law, trade agreements such as the TPP are not self-executing.25 Rather, because the TPP was negotiated pursuant to a congressional-executive agreement, it must be enacted through "implementing legislation."26 Ultimately, passage will depend on whether the Trump Administration has the desire to reverse course and push for ratification.27 Previously, President Obama was reticent to submit any implementing legislation, believing he lacked sufficient votes in Congress to ensure passage.28
The Obama Administration negotiated the TPP pursuant to Trade Promotion Authority granted by Congress, which allows the President to negotiate international agreements that Congress can either approve or disapprove but not amend.29 This authority is a temporary power granted to the President by Congress. Though this move can often be controversial, it is not unusual for Congress to grant such authority before negotiation of major trade agreements.30 In 2013, the Obama Administration began seeking renewal of the authority.31 In June 2015, TPA passed Congress and was signed by President Obama.32 The final approval to legislation granted President Obama this "enhanced power to
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negotiate major trade agreements [such as the TPP, TISA, and TTIP] with potential Asian and European trading partners."33
For the TPP to pass, the Trump Administration would have to convince enough Republicans and Democrats in both chambers to support the trade bill. Chairman of the Senate Finance Committee, Orrin Hatch, will likely play a crucial role in passing the TPP.34 However, Senator Hatch has expressed concern over the exclusivity period for intellectual property protection of biologics, stating that he will push to renegotiate these provisions.35 Regardless, further negotiation is highly unlikely—the Obama White House advised that any attempt at renegotiation would likely kill the deal.36 As it stands, it remains unclear whether the TPP will ever be implemented by Congress, due to President Trump's intent to withdraw the United States from the TPP.37
C. Criticisms and Concerns
From the start of negotiations, the TPP drafting process has been marked by extraordinary secrecy, and officials continually guarded drafts from access by the general public.38 Even U.S. lawmakers were denied opportunities to view drafts and other treaty-related documents.39 Meanwhile, so-called "trade advisers" were frequently given access to major parts of the agreement's text.40 According to WikiLeaks, these "trade advisers" were simply lobbyists representing the interests of U.S. corporations.41 Moreover, a "majority of Congress [was] kept in the dark as to the substance of the TPP negotiations, while representatives of U.S. Corporations . . . [were] being consulted and made privy to details of the agreement."42
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Additionally, the TPP seeks to strengthen intellectual...
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