The Anti-Counterfeiting Trade Agreement has always been the exception to the general rule for international negotiations – closed participation rather than open, secretive rather than transparent – so it should come as no surprise that the negotiations have come to an end in an unusual manner. The only thing that is absolutely clear is that there will be no further rounds of negotiation as the latest round in Japan is being described as the final round of talks. Other than that, the conclusion seems open to considerable speculation and spin.
From the U.S. perspective, the negotiations are done and ACTA is nearly a reality. USTR Ambassador Ron Kirk has been quoted as saying that there are solutions to even the toughest issues and that nearly all parties have agreed to them. Another U.S. official admitted that there were still as many as six issues without agreement, including two on border measures and another from the Internet chapter. The EU has been even less supportive, with an official quoted as saying “we’ve come a long way but we must still close the remaining gaps without which there will be no agreement.” Moreover, several European Parliament Members are already calling for a halt to the deal. Meanwhile, Japanese officials have acknowledged that there are issues that require further discussion back home and that “in that sense we haven’t gotten agreement.”
So what is going on? My guess is that this is consistent with the speculation leading up to the Japan meeting where it was apparent that the U.S. was determined to conclude a deal before the Congressional elections. There were no meetings scheduled beyond Japan, with the U.S. making it clear that this would be the final round before it even began (and Japan proud to host the final round).
The U.S. spin on the meeting therefore has the feel of a country ready to say that ACTA was concluded no matter how many issues remain outstanding. Moreover, given how the U.S. has caved on numerous issues over the past few meetings in order to get a deal, it seems likely that they did more of the same in Japan, watering down their ACTA demands in an effort to achieve consensus. As with prior meetings, the reality will slowly emerge in the comments from officials and the text itself – the text may be released on Wednesday and both the U.S. and the EU are hosting briefings on Thursday.