6 October 2015
The United States has concluded negotiations with 11 other countries that comprise the TransPacific Partnership (TPP). The 11 countries are: Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam.
While the full details of the agreement are not yet available, there were a number of key issues still outstanding as the countries were negotiating. Several of these key issues will be critical to determining the degree of US congressional support for the agreement. These issues include:
- Carving tobacco control measures out of investment dispute settlement provisions,
- Patent or other exclusive period of protection for biopharmaceuticals,
- Market access for dairy and sugar,
- Exemptions or carve outs from market access provisions for specific products,
- Changes to the investor-state dispute settlement (ISDS) proceedings, and
- Provisions related to a country’s manipulation of its currency to provide an advantage in international trade.
The TPP agreement will be considered by the US Congress under the process set forth according to the Congressional Trade Priorities Act (TPA), which was enacted into law in June 2015. Under the TPA, the text of the TPP agreement must be available to the public for 60 days. In addition, the President must submit the completed text to the US International Trade Commission (USITC) 90 days before signing the agreement. The USITC then has 105 days to analyze the agreement’s economic impact on the US economy as a whole and on selected sectors. This report will be a public document. The USITC process creates a formal opportunity for stakeholders to comment on the agreement prior to Congressional consideration.
After the agreement is signed by the President, it is submitted to Congress for consideration. Under the TPA, the implementing legislation, once submitted, is automatically introduced and referred to the House Ways & Means Committee. That committee has 45 legislative days to report out the implementing legislation or it will be automatically discharged to the full House for consideration. Assuming the legislation passes the House, it then goes to the Senate, where it is referred to the Senate Committee.
The Senate Committee has 15 days to report out the legislation or it is automatically discharged to the full Senate. The TPA legislation provides for expedited consideration in the Senate, essentially avoiding opportunities for the implementing legislation to be filibustered. If every part of this timeline moves as quickly as possible, then, roughly, this timeline leads to the first votes in Congress on the TPP agreement occurring mid-winter of 2016, depending on the congressional calendar and how many legislative days Congress is in session.
While the TPA agreement was guided into law with the support of key congressional leaders, including Senate Finance Chairman Orin Hatch, Ways & Means Chairman Paul Ryan, Senate Majority Leader Mitch McConnell and Senator Ron Wyden, the lead Democrat on the Finance Committee, initial reaction to the TPP agreement from Senators McConnell and Hatch has raised serious reservations about whether the agreement meets the standards set forth in the TPA. The initial reaction from Chairman Ryan and Senator Wyden has been more muted, and both indicated that they will carefully examine the final TPA agreement before rendering judgment. Congressman Sander Levin, the lead Democrat on the House Ways & Means Committee, has publicly indicated that review of the agreement might result in changes to the negotiated text.
The public release of the agreement, the USITC report process and the process of congressional consideration all create significant opportunities for stakeholders to provide feedback and response to policy makers, which can impact when, how or even whether the agreement, as negotiated, will be considered by Congress. In four prior instances (namely, agreements with Peru, Panama, Colombia and South Korea), subsequent changes to those agreements, or new side agreements, were made after negotiations had officially concluded in order to secure congressional support for the agreements.