The Trouble with the TPP series has focused on dozens of problematic provisions within the trade agreement and identified several implementation possibilities that might limit some of the harm. For example, the post on copyright term extension discussed how Canada could require copyright registration and notification of the extended term in order to qualify for further protection. Copyright registration would not eliminate all the harm to the public domain, but it would mean that only those that desire the extension would take the positive steps to get it, thereby reducing the costs of the TPP’s unnecessary copyright term extension.
Should Canada move toward ratification of the TPP, there is a concern that attempts to mitigate the harm of some provisions will face opposition from the U.S. While implementation flexibility is the goal of every negotiator, the U.S. reserves the right to “certify” whether other TPP countries have, in its view, properly implemented the agreement.
The certification process is not found in the TPP, yet it is a part of how the U.S. approaches trade agreements. Before any free trade agreement takes effect, the applicable U.S. legislation includes a provision requiring the President to determine whether the agreement’s partner(s) have taken measures to bring it into compliance with the deal. The certification process includes reviews from multiple U.S. agencies, including the USTR, State, Commerce, Agriculture, and Treasury. If the President does not certify the other countries, the agreement does not take effect.
U.S. companies have already begun calls for an aggressive TPP certification process. For example, earlier this month Qualcomm appeared before a U.S. Senate committee hearing, stating:
Before a trade agreement with the United States can enter-into-force, the President must determine that the trading partner has taken the necessary steps for implementation of all obligations that are to take effect on day one of the Agreement. I cannot emphasize enough how critical this certification process is to ensuring that a trading partner has the necessary laws and regulations in place to implement its obligations before an Agreement enters into force. It is during this certification process when our ability to secure any necessary protections in our trading partners’ laws, consistent with the Agreement, is at its greatest. Certification may be the best opportunity the United States has to ensure that trading partners have taken all necessary domestic steps to implement and abide by their commitments.
Qualcomm continued by urging officials to create a “pre-certification checklist”.
How would the U.S. enforce its certification process?
As further discussed in tomorrow’s post, the TPP cannot take effect without U.S. ratification. The U.S. plans to withhold ratification until it is satisfied that the other TPP countries meet its certification requirements. The U.S. approach effectively grants it an additional opportunity to shape the TPP by establishing its own requirements on implementation and forcing others to abide by its interpretation of otherwise flexible provisions.
(prior posts in the series include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension, Day 4: Copyright Notice and Takedown Rules, Day 5: Rights Holders “Shall” vs. Users “May”, Day 6: Price of Entry, Day 7: Patent Term Extensions, Day 8: Locking in Biologics Protection, Day 9: Limits on Medical Devices and Pharma Data Collection, Day 10: Criminalization of Trade Secret Law, Day 11: Weak Privacy Standards, Day 12: Restrictions on Data Localization Requirements, Day 13: Ban on Data Transfer Restrictions, Day 14: No U.S. Assurances for Canada on Privacy, Day 15: Weak Anti-Spam Law Standards, Day 16: Intervening in Internet Governance, Day 17: Weak E-commerce Rules, Day 18: Failure to Protect Canadian Cultural Policy, Day 19: No Canadian Side Agreement to Advance Tech Sector, Day 20: Unenforceable Net Neutrality Rules, Day 21: U.S. Requires Canadian Anti-Counterfeiting Report Card, Day 22: Expanding Border Measures Without Court Oversight, Day 23: On Signing Day, What Comes Next?, Day 24: Missing Balance on IP Border Measures, Day 25: The Treaties With the Treaty, Day 26: Why It Limits Canadian Cultural Policies, Day 27: Source Code Disclosure Confusion, Day 28: Privacy Risks from Source Code Rules, Day 29: Cultural Policy Innovation Uncertainty, Day 30: Losing Our Way on Geographical Indications, Day 31: Canadian Trademark Law Overhaul, Day 32: Illusory Safeguards Against Encryption Backdoors, Day 33: Setting the Rules for a Future Pharmacare Program, Day 34: PMO Was Advised Canada at a Negotiating Disadvantage, Day 35: Gambling With Provincial Regulation, Day 36: Why the TPP Could Restrict Uber Regulation, Day 37: Breaking Digital Locks for Personal Purposes, Day 38: Limits on Canadian Digital Lock Safeguards, Day 39: Quiet Expansion of Criminal Copyright Provisions, Day 40: Mobile Roaming Promises Unfulfilled, Day 41: ISDS Rules Do Not Meet the Canada’s New “Gold” Standard, Day 42: The Risks of Investor-State Dispute Settlement, Day 43: Eli Lilly Is What Happens When ISDS Rules Go Wrong, Day 44: Canada’s Terrible ISDS Track Record, Day 45: Limited Economic Gains for Canada, Day 46: Limited Employment Gains or Even Job Losses for Canada, Day 47: Hits and Misses in the Agricultural Sector)