Free Trade Agreements With The United States: 8 Lessons For Prospective Parties From Australia's Experience
| Author | Stephen R. Tully |
| Position | Barrister, St James' Hall Chambers, 6/169 Phillip Street Sydney NSW 2000; Tutor, Law Faculty, University of Sydney; Part-time Lecturer, Law Faculty, University of New South Wales |
| Pages | 395-418 |
Free Trade agreemenTs WiTh The UniTed sTaTes:
8 Lessons For ProsPecTive ParTies From
aUsTraLia’s exPerience
Stephen R. Tully*
University of Sydney, University of New South Wales, Australia
ABSTRACT
This article identies 8 key lessons for those States contemplating a free trade agre-
ement with the United States (U.S.) arising from Australia’s experience. The standards
of intellectual property protection under the Australia-U.S. Free Trade Agreement and
their impact on pharmaceutical prices in Australia are a particular focus. Prospective
parties must rst conduct a national interest self-assessment which reviews the desired
strength of intellectual property protection under national law and their preference for
using exibilities available to them under the existing international intellectual pro-
perty rights framework. The United States negotiates free trade agreements in light of
previous ones, negotiating outcomes obtained in other fora and the decisions of inter-
national trade tribunals. Negotiations typically occur behind closed doors, which is a
process having adverse implications for transparent decision-making, public consulta-
tion periods and contributions from interested non-governmental actors. A concluded
agreement will build on prior treaties and inuence the course of future international
arrangements. But the impact of a United States free trade agreement is not always cle-
ar, including because of a lack of reliable data, and the extent of national legal change
is a contested issue given existing reform agendas and external inuences. The United
States seek to redesign national health care systems in its own image and had little suc-
cess in Australia’s case. National legal systems need not be harmonised: although there
can be some convergence in intellectual property rights regimes, signicant differences
may also remain. Negotiators must reconcile competing cultures, philosophies and per-
spectives between States for a free trade agreement to be worthwhile.
CONTENTS
I. inTrodUcTion…………………………………….................................…..397
II. overvieW oF The aUsFTa…………………………………............…...397
III. eighT Lessons From The negoTiaTion oF The aUsFTa.....................…398
A. States must assess National Interests before adhering to a Free Trade
Agreement.........................................................................................398
Br. J. Am. Leg. Studies 5 (2016), DOI: 10.1515/bjals-2016-0014
© 2016 Stephen R. Tully, published by De Gruyter Open.
This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 License.
* Barrister, St James’ Hall Chambers, 6/169 Phillip Street Sydney NSW 2000; Tutor, Law
Faculty, University of Sydney; Part-time Lecturer, Law Faculty, University of New South
Wales; He can be reached at stully@stjames.net.au.
5 Br. J. Am. Leg. Studies (2016)
B. Free Trade Agreements build on U.S. Past Experience...............401
C. Free Trade Agreements are typically negotiated in secret…....... 404
D. The Intellectual Property Provisions of a Free Trade Agreement
can inuence National Health Care Systems................….….406
E. The Impacts of a U.S. Free Trade Agreement may not be clear...409
F. A U.S. Free Trade Agreement does not necessarily lead to a
Harmonisation of or Convergence between National Legal Systems 412
G. A Free Trade Agreement can inuence Future International
Arrangements ………….......…..................................................413
H. A Free Trade Agreement must reconcile Competing Cultures and
Perspectives………....................................................................415
IV. concLUsions…………………………………..........................……..418
396
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