KEI notes on the 16th Round of Trans-Pacific Partnership Agreement (TPPA) Negotiations in Singapore

The 16th round of negotiations for the Trans-Pacific Partnership Agreement (TPPA) took place at the Grand Copthorne Waterfront Hotel in Singapore in early March.

One day of formal stakeholder engagement took place on 6 March 2013, with stakeholders given the opportunity to host tables, make presentations in the morning followed by a stakeholder briefing from the chief negotiators of all eleven negotiating parties in the afternoon. Apparently, over 300 registered stakeholders attended the round. Registered stakeholders included, among others, representatives from the US-ASEAN Business Council, American Chamber of Commerce in Singapore, US Chamber of Commerce, US Business Coalition for TPP, Biotechnology Industry Organization, PhRMA, Entertainment Software Association, Malaysian Organization of Pharmaceutical Industries, University of Auckland, New Zealand Medical Students’ Association, Google, Actavis, MFJ International, Mylan, Knowledge Ecology International, Oxfam, Public Citizen, Derechos Digitales, Consumers International FTA Watch, Malaysian AIDS Council, Malaysian Women Action for Tobacco Control & Health, Southeast ASia Tobacco Control Alliance, Third World Network and the Business Software Alliance. The full list of stakeholders who requested table space is available here.

Not surprisingly, a large percentage of presentations made focused on intellectual property issues. IP-related presentations were made by HBO Go, Warner Brothers, AdvaMed, Oxfam, Malaysian AIDS Council, IAPO, MFJ International, Motion Pictures Association International, Union Nacional de Artists, KEI, Actavis, CropLife America, News Corporation, Consumers International, Breast Cancer Welfare Association Malaysia, Third World Network, Derechos Digitales, Malaysian Organization of Pharmaceutical Industries, BIO, NZ Medical Students Association, and the Walt Disney Company. The list of presentation is available here.

During the stakeholder briefing, the chief negotiator of Singapore stated that 2013 is an important for the TPPA as they have a target of substantively concluding negotiations this year. She noted that the negotiating groups have sought to intensify the negotiations with over 600 negotiators from the eleven countries attending the round. She alluded to the leaders meeting rumored to take place in October 2013, noting an objective of resolving as much as possible at the negotiator level in order to have “meaningful engagement” at the higher level.

Stakeholder Briefing
With regard to a question about e-commerce, the Canadian chief negotiator asserted a commitment to e-commerce as a means for trade and providing certainty, but acknowledged that in contemplating issues around free flow, there is a need to discuss limits and privacy. The Mexican chief also stated a commitment to enhancing trade in the region and specifically noted that they want to ensure that small and medium sized economies can seize opportunities available from free flow of information.

With respect to a question on what state the texts will be in when the political leaders meet to discuss the matter and whether there will be further rounds after the leaders meeting, the Singapore chief did not have an answer but stated that they are mindful of the 2013 deadline and are aiming to have an agreement completed, resolving as much as possible by then. She repeatedly asserted a desire to “frame” the text well so that it will be in a “good place” for the political leaders meeting.

One question on whether affirmative action programs can be used under the TPP given the fact that South Africa was sued under investor state provisions when it had affirmative action plans was directed to Malaysia. The Malaysian chief stated that they are not the only country that has affirmative action and it will be an area of concern for the US. Thus, he stated an effort to negotiate carveouts or exceptions for text they cannot agree to. He stated that with respect to government procurement negotiations, they could have time-limited or permanent carveouts.

When a Thai stakeholder questioned whether a formal request from Thailand to join the negotiations had been made, the Singapore chief stated that membership in the TPPA is based on a country expressing interest but that new entrants must subscribe to the “high standards” of the TPPA.

The Malaysian AIDS Council asked a question to US chief negotiator regarding when the US expects to table its new text on pharmaceuticals and questioned if such a text would be coming. The US chief responded that they have been discussing the pharmaceutical text internally in the United States and are continuing to do that. Whether and when a new text will be tabled has been a question of high interest for stakeholders across all countries as the US tabled its text in September 2011 with heavy opposition from all other countries at the negotiating table (at that time Canada and Mexico still had not joined the TPP). The IP negotiators have not negotiated text on pharmaceuticals for more than a year now (March 2012 in Melbourne, Australia) and it is again reported to be off the agenda for the next round in May.

At one point, a stakeholder from the Malaysian Organization of Pharmaceutical Industries (MOPI) asserted that medicines are a crucial need and generic drugs are important. He stated that changing the goal posts and extending patents are harmful and called the negotiating parties to respect international flexibilities.

Several stakeholders expressed an interest in the pharmaceutical issues and the US chief noted that they have been under a “period of reflection” and had not yet tabled any text on biologics. She noted that the US law has twelve years of data exclusivity for biologics, but that USTR still had not tabled any proposal on biologics. She appeared to be sensitive to questions on pharmaceuticals, repeatedly stating that they are looking at the issue and “reflecting” on it with the seriousness that it deserves. She expressed the dual goals of having a new generation of drugs and acces, but that generics are not possible until there is new innovation and that they have not found the appropriate balance yet.

When Oxfam was given the opportunity to ask a question, he noted that the Obama Administration only wanted five to seven years of biologics, but ended up with twelve before questioning whether countries will have enough time to reflect and analyze new pharmaceutical text given the uncertainty as to when the proposal will be tabled. The Singapore chief responded, stating that they will take all proposals and look at them comprehensively.

Some stakeholders also raised questions regarding tobacco proposals and plain packaging laws. The New Zealand chief stated that they can move forward with plain packaging and noted that they have joined as a third party in the WTO disputes against Australia on plain packaging.

With respect to fast track/trade promotion authority, the US chief said that discussions are under way and while USTR has not yet asked for fast track authority when the time is “appropriate” legislation will be put forward.

Intellectual Property
The discussions during this round on intellectual property focused on enforcement issues, including civil and administrative procedures, criminal penalties, border measures and provisional measures. With six of the eleven negotiating parties being countries that negotiated the Anti-Counterfeiting Trade Agreement (ACTA), it appears that there is support for using ACTA as a compromise for the enforcement sections. Australia, Canada, Mexico, New Zealand, Singapore and the United States all participated in the negotiations for ACTA.

Although patents and pharmaceutical texts were not part of the negotiations during this round, the IP negotiators reportedly exchanged views on pharmaceuticals during one morning session. This exchange of views reportedly took place because Canada and Mexico are new entrants (their first round participating in negotiations took place in December 2012 in Auckland, New Zealand) and have not yet discussed patents or pharmaceuticals. Negotiating parties explained how pharmaceuticals are treated in their countries’ systems, with some reporting a focus on Canada and Mexico presenting on their domestic systems.

Countries may still be waiting for the US to table its revised pharmaceutical proposals, though there is some suspicion that either no new text is coming, or any revisions will be minor. There is also speculation that the US is simply engaged in delay tactics and will table the proposal too late for substantive discussions at the negotiator level and that its pharmaceutical text will simply be left to political level decisions.

Next Rounds
The next round of negotiations will take place in Lima, Peru from 15-24 May 2013. It is widely expected that following the Peru round, there will be two more full rounds before the leaders’ meeting in October with possible intersessionals for certain controversial chapters, including intellectual property.