The Trans-Pacific Partnership

AuthorTania Voon, Elizabeth Sheargold
PositionProfessor, Melbourne Law School, University of Melbourne; PhD (Cambridge); LLM (Harvard); Grad Dip Intl L, LLB (Hons), BSc (Melbourne)/PhD Candidate and Research Fellow, Melbourne Law School, University of Melbourne, LLM (Columbia); LLB (Hons), BA (Melbourne)
Pages341-370
The Trans-Pacific ParTnershiP*
Tania Voon** & Elizabeth Sheargold***
University of Melbourne, Australia
ABSTRACT
This article provides an overview of the recently concluded Trans-Pacic Partnership
Agreement (TPP), a treaty the parties have described as comprehensive and ambitious,
yet also representing a balance of competing interests. The article focuses on the TPP’s
chapters relating to investment, services, intellectual property and regulatory coheren-
ce, each of which provides insight into the motivations that drove the conclusion of the
TPP and the negotiating dynamics that determined its nal content. In areas such as
investment, the TPP takes a more balanced approach than many earlier agreements,
providing greater safeguards for the regulatory autonomy of states while still embody-
ing core protections for foreign investors. In relation to intellectual property and servi-
ces, the TPP goes beyond earlier agreements in several key respects, such as preventing
the imposition of local presence requirements for service providers or requiring longer
copyright terms than those demanded by other international treaties. The TPP chapter
on regulatory coherence is one of the most novel features of the treaty, as regulatory co-
herence is not frequently included in earlier trade agreements, demonstrating the incre-
ased focus of states on addressing regulatory barriers to trade and investment. While all
of these elements of the TPP are interesting in their own right, given the number and size
of the parties involved in the agreement, they also provide valuable guidance about the
direction of other ongoing and future preferential trade agreement negotiations, such
as the proposed Transatlantic Trade and Investment Partnership (TTIP) and Trade in
Services Agreement (TiSA).
CONTENTS
i. inTroducTion…………………………………...............................………. 343
ii. invesTmenT…………………………….....................................…………. 345
A. Denition of Investment ………................................………………. 346
Br. J. Am. Leg. Studies 5 (2016), DOI: 10.1515/bjals-2016-0012
© 2016 Tania Voon, Elizabeth Sheargold, published by De Gruyter Open.
This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 License.
* We gratefully acknowledge the generous nancial support provided for this independent
research by the Australian Research Council pursuant to the Linkage Project scheme (project
number LP120200028, in collaboration with Cancer Council Victoria) and the Discovery
Project scheme (project number DP130100838). The opinions expressed here are our personal
views as academics and are not necessarily shared by any employer or other entity. Any errors or
omissions are ours. This article was written in March-April 2016 and edited in June-July 2016.
** Professor, Melbourne Law School, University of Melbourne; PhD (Cambridge); LLM
(Harvard); Grad Dip Intl L, LLB (Hons), BSc (Melbourne); AMusA; She can be reached at
tania.voon@unimelb.edu.au.
*** PhD Candidate and Research Fellow, Melbourne Law School, University of Melbourne,
LLM (Columbia); LLB (Hons), BA (Melbourne); She can be reached at elizabeth.sheargold@
unimelb.edu.au.
5 Br. J. Am. Leg. Studies (2016)
B. Core Obligations and Exceptions ……………............................. 347
C. Investor-State Dispute Settlement ……....................................…. 349
III. Services…………………………………………….......................… 351
A. Scope, Core Obligations and Exceptions ………......................… 351
B. Professional Services ………………………......................…….. 353
C. Telecommunications and Electronic Commerce ………...........… 355
IV. inTellecTual ProPerTy………………………................................... 357
A. United States’ Ambition and the Diverse Interests of the TPP Parties...359
B. Access to Medicines and Protection for Biologics ………......…...361
C. Copyright Enforcement …………………….............................…363
V. regulaTory coherence…………................................................…… 366
A. Good Regulatory Practices …………....................................…... 367
B. Cooperation, Harmonization and Institutional Provisions ………368
VI. conclusion………………………...............................................….370
342

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