The TPP has emerged as a major political issue in the United States with presidential candidates such as Donald Trump, Hillary Clinton, and Bernie Sanders all expressing opposition or concern with the deal. Moreover, House Speaker Paul Ryan has said there are not sufficient votes to support passing the agreement. The U.S. opposition makes it a near-certainty that it will not pass the TPP in 2016 and that the debate will certainly extend into 2017 and the election of a new president. Meanwhile, Chrystia Freeland, Canada’s Minister of International Trade, has said it is not her job to sell the TPP and made it very clear that the government will not commit to ratifying the TPP until it has conducted a full public consultation.
In response to these developments, business lobby groups such as the Canadian Chamber of Commerce have called on the government to move quickly to ratify the deal without regard for what happens in the U.S. Yet the TPP’s implementation provisions are structured to provide little incentive for countries to move quickly without assurances that the U.S. plans to ratify. Article 30.5 establishes the rules for the TPP entering into force:
1. This Agreement shall enter into force 60 days after the date on which all original signatories have notified the Depositary in writing of the completion of their applicable legal procedures.
2. In the event that not all original signatories have notified the Depositary in writing of the completion of their applicable legal procedures within a period of two years of the date of the signature of this Agreement, it shall enter into force 60 days after the expiry of this period if at least six of the original signatories, which together account for at least 85 per cent of the combined gross domestic product of the original signatories in 2013, have notified the Depositary in writing of the completion of their applicable legal procedures within this period.
3. In the event that this Agreement does not enter into force under paragraph 1 or 2, it shall enter into force 60 days after the date on which at least six of the original signatories, which together account for at least 85 per cent of the combined gross domestic product of the original signatories in 2013, have notified the Depositary in writing of the completion of their applicable legal procedures.
Assuming that not all countries ratify, the key requirement will be that at least six countries representing 85% of GDP of the original signatories have ratified. That effectively means that the TPP cannot take effect until both the U.S. and Japan are on board.
Given that the TPP will require many legislative changes and create significant costs, it simply makes no sense to make those changes and incur the downside of the agreement without assurances that it will actually take effect. Ratification without assurances that the TPP will become a reality isn’t leadership. It’s stupidity. There is a very strong case against Canadian ratification of the TPP, but even if the government decides to move ahead, it must surely wait until it is certain that the deal will in fact come into force.
(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, Day 48: U.S. Reserves Right to “Certify” Canada’s TPP Implementation)