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Wednesday, August 12, 2015

Trans-Pacific Partnership negotiations: a total wipeout?

By Claire McMahon, Associate

Unlike Mick Fanning in J Bay, the Trans-Pacific Partnership trade talks took a heavy dumping in Hawaii earlier this month, with the 12 trade ministers walking away from the meeting without reaching agreement. Apparently all 25 chapters of the TPP have now been drafted (and more on this in our next post), but there are several matters still making waves.

We’ve previously discussed some of the issues plaguing the TPP negotiations. This time around, Australia seems to be a sticking point. As reported, Australia is refusing to sign unless certain Australian organisations are made exempt from investor-state dispute settlement rules in relation to decisions concerning public health, safety and the environment. Australia's likely objective is to avoid investor-state claims in external tribunals in relation to the government's health and environment policies. However, existing TPP language would already effectively exempt these 'except in rare circumstances', so it is not clear whether Australia will continue to push for this amendment.

Australia is also holding out due to an ongoing debate about extending data protection in relation to biologic drugs, such as vaccines, blood products and gene therapies. This is the period of protection for clinical test data submitted to regulatory authorities to prove safety and efficacy. Generic manufacturers are excluded from relying on that data to register their competing generic products for the relevant period. The US wants an eight-year data-exclusivity period, having retreated from 12 years after intense opposition from the other parties. Trade Minister Andrew Robb has repeatedly said that Australia will not budge from the five years that is our current law.

So where to from here? While the TPP is much maligned, this present setback is unlikely to be fatal. The US in particular will probably be keen to sign off on the deal before its election campaign ramps up.

Wikileaks has played its now-expected role – adding fuel to the fire by releasing the draft Healthcare Annex to the TPP in mid-June. This triggered the usual uproar, particularly after Wikileaks announced that the Healthcare Annex 'seeks to regulate state schemes for medicines and medical devices. It forces healthcare authorities to give big pharmaceutical companies more information about national decisions on public access to medicine, and grants corporations greater powers to challenge decisions they perceive as harmful to their interests.'

However, once again, the reality is more a case of business as usual for Australia (and others). The guidelines regarding access to information and appeals of unfavourable decisions are largely similar to the processes already in place in the health care systems of many countries, including Australia. The content directed to online marketing also generally mirrors existing Australian consumer protection laws.

Wikileaks has also launched a crowd-source campaign to fund a $100,000 reward for the remaining sections of the TPP. Whether this is a good investment remains to be seen – although no further negotiations have been formally scheduled, there are reports that the parties are keen to meet again soon to continue to try to reach agreement. Stay tuned for the next set.

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