Global Governance and the Trans-Pacific Partnership (TPP)

• Trina Hamilton, Associate Professor, UB Department of Geography
• Abigail Cooke, Assistant Professor, UB Department of Geography
• Marion Werner, Assistant Professor, UB Department of Geography
• Meredith Kolsky Lewis, Professor and Vice Dean, UB International and Graduate Programs, School of Law
  

Global Governance and the Trans-Pacific Partnership (TPP) Symposium 2016 is organized through the Canada-U.S. Trade Center and sponsored by:

• The Baldy Center for Law and Social Policy
• Department of Geography, College of Arts and Sciences
  
• Asian Studies Program, College of Arts and Sciences
  
• The Nila T. Gnamm Junior Faculty Research Fund

8:30am-9:00am - Registration & Breakfast

9:00am-9:15am - Welcome Remarks
Trina Hamilton and Abigail Cooke

9:15am-11:00am - Economic Development Panel
Moderator: Abigail Cooke
Jeromin Capaldo, Amitendu Palit, Jason Yackee, Jun Zhang

11:15am-1:00pm - Labor and Human Rights Panel
Moderator: Marion Werner
Kate Bronfenbrenner, Ruth Lopert, Brook K. Baker, Angie Ngoc Tran

1:00pm-2:00pm - Lunch

2:00pm-3:45pm - Environment Panel
Moderator: Trina Hamilton
Errol Meidinger, Scott Prudham, Kyla Tienhaara, Tony Weis

4:00pm-5:00pm - Future Directions Round-Table
Opening comments: Meredith Kolsky Lewis
Moderator: Marion Werner
All panelists and participants

(The participants are listed in the order of the symposium schedule.)

Jeronim Capaldo is a Research Fellow with the Global Development and Environment Institute at Tuft’s University, and a PhD candidate in Economics at the New School for Social Research.
Title: Trading Down: Unemployment, Inequality and Other Risks of the Trans-Pacific Partnership Agreement (Jeronim Capaldo and Alez Izurieta with Jomo Kwame Sundaram)
Abstract: Proponents of the Trans-Pacific Partnership agreement (TPP) emphasize its prospective economic benefits, with economic growth increasing due to rising trade volumes and investment. Widely cited projections suggest modest GDP gains after ten years, varying from less than half a percentage point in the United States to 13 percent in Vietnam. However, these projections assume full employment and constant income distribution in all countries excluding some of the major risks of trade liberalization. In this paper, we provide alternative projections of the TPP’s economic effects using the United Nations Global Policy Model. Allowing for changes in employment and income distribution, we obtain very different results. We find that the benefits to economic growth are even smaller than those projected with full-employment models, and are negative for Japan and the United States. More important, we find that the TPP will likely lead to losses in employment and increases in inequality.

Amitendu Palit is a Senior Research Fellow, and Research Lead in Trade and Economic Policy at the Institute of South Asian Studies, National University of Singapore.
Title: TPP & Developing Countries: Implications & Challenges
Abstract: Mega-RTAs imply new challenges for excluded countries. While some of these challenges arise from the economic impacts of growth of geographies characterised by new discriminatory preferential access, some others are produced by long-term implications of the mega-RTAs on global trade governance. The TPP has generated several challenges of both varieties due to its economic size, regulatory ambition and geo-strategic significance. The scale of these challenges is large for excluded countries, particularly developing countries. The latter include large populous emerging market economies like China and India, as well as countries figuring at various rungs of economic prosperity, including least-developed countries from Africa and Asia, many of which depend heavily on TPP member markets for exports. This paper will examine some of the major challenges for excluded developing countries, both for the relatively more and the least developed, in the context of their economic circumstances, role and interests in global trade, participation in regionalisation and the capacity to negotiate major global and regional trade issues. 

Jason Yackee is an Associate Professor of Law at the University of Wisconsin where he teaches Contracts, International Investment Law, International Arbitration and International Business Transactions.
Title: TPP Chapter 9 vs. NAFTA Ch. 11: An Improvement in Investor-State Dispute Settlement?
Abstract: The TPP agreement continues the modern trend of including investment-related provisions in what is otherwise marketed as a free trade agreement. Those investment provisions provide generous substantive rights to foreign investors, and allow those investors to enforce those rights against the host state government for treaty violations. In the NAFTA context, investors have used Chapter 11 to bring numerous claims against Canada, the United States and Mexico. These lawsuits are sometimes successful, and they have been heavily criticized, typically by the political left, for improperly infringing on the state’s right to regulate. TPP’s Chapter 9 is the equivalent to NAFTA Chapter 11. The TPP drafters seem to have been somewhat sensitive to the criticism of NAFTA Chapter 11, and have made a number of changes responsive, at least on the surface, to some of those complaints. This presentation will provide an overview of the Chapter 11 debate, and will highlight and evaluate some of Chapter 9’s more important changes. I conclude by suggesting that the TPP text is an improvement over its NAFTA predecessor, but only slightly. Investment arbitration promises to increase the number of challenges to government policies, while also probably not offering much in the way of offsetting economic benefits.

Jun Zhang is an Assistant Professor in the Geography and Planning Department at the University of Toronto.
Title: China’s Fragile Superpower and the TPP
Abstract: My primary argument is that the fragility of China’s emerging superpower is a key reference point in interpreting the TPP. As Susan Shirk (2007) argues, China’s rise as an emerging superpower is indisputable but it is inherently fragile. Ever since 1989, China’s elite politics has been predominantly driven by the paradoxical combination of a determination to perpetuating the Chinese Communist Party’s one-party rule and the fear of losing it. Political survival as the leadership’s foremost concern and the collective consciousness of ambition-cum-fear drive both China’s domestic politics and foreign policies. This paradoxical combination renders the asserting of an authoritarian and nationalistic ideology and maintaining of a market-oriented, open economy both indispensable in safeguarding the Leninist Party’s power and legitimacy. Thus there are two polarizing, progress and retrogressive, forces, simultaneously driving the regime towards, and moving away from, a rule-based domestic governance and cooperative, norm-complying international policy. The regime’s escalated domestic repression, belligerent foreign policies, and a series of campaigns assaulting Western values and “hostile foreign forces” under President Xi’s new administration since 2012 are symptomatic of its deep and profound insecurity, and the ascending of the retrogressive force over the progressive one. This intensification of China’s nationalistic, hard authoritarianism is the key reason why many observers believe that U.S.- China relation is coming closer to a critical tipping point from constructive engagement to mutual deterrence. Many Americans have come to be convinced that the wishful thinking for China to keep “going in a positive direction” and to become a cooperative partner must be ended. It is the uncertainty and distrust associated with China’s fragile superpower that have pushed China’s smaller neighbors away from China to the U.S. in seeking some balancing of power. This is also why in the world’s most dynamic region of economic growth, the world’s two largest economies, namely China and the U.S., are proceeding separately: the U.S. in TPP and China in RCEP. Regardless of the pros and cons of the TPP and its (bleak) future, the irreconcilable tension within the Chinese regime and its manifestation through the G2 relation will structure the world’s future order, or disorder.

Kate Bronfenbrenner is the Director of Labor Education Research and a Senior Lecturer at Cornell University in the School of Industrial and Labor Relations.
Title: Beyond job protection: Labor unions and global trade agreements
Abstract: Labor opposition to multilateral free trade agreements never has quite fit the narrow construct of job protectionism with which it has been consistently branded. This has never been more evident than the broad global alliance that labor unions from throughout the world joined with to oppose the Trans-Pacific-Partnership (TPP).  Drawing from my research on labor and capital mobility as well secondary sources on labor responses to the TPP, in this paper I examine the origins, nature, and limitations of labor opposition to the TPP from unions impacted by the agreement.

Ruth Lopert is the Deputy Director, Pharmaceutical Policy & Strategy, for the Pharmaceuticals & Health Technologies Group at the nonprofit international health organization, Management Sciences for Health (MSH).

Brook K. Baker is a professor at Northeastern University School of Law and an affiliate of its Program on Human Rights and the Global Economy; he is also an Honorary Research Fellow at the University of KwaZulu Natal, Durban, South Africa, and is a Senior Policy Analyst for Health GAP (Global Access Project), an AIDS activist organization.
Title: Trans-Pacific Partnership Provisions in Intellectual Property, Transparency, and Investment Chapters Threaten Access to Medicines in the US and Elsewhere
Abstract:  The recently negotiated Trans Pacific Partnership Agreement (TPP) contains provisions that would dramatically and negatively impact access to affordable medicines in the United States and elsewhere if it is ratified. Provisions in the Intellectual Property (IP) Chapter of TPP lengthen, broaden, and strengthen patent-related monopolies on medicine and erect new monopoly protections on regulatory data as well. IP Chapter enforcement provisions also mandate injunctions preventing medicines sales, increase damage awards, and expand confiscation of medicines at the border. IP rightholders gain new powers in the Investment Chapter to bring private, IP-related investor-state-dispute-settlement (ISDS) damage claims directly against foreign governments before unreviewable, three-person arbitration panels. Unrestricted IP-investor damage claims deter countries’ willingness to render adverse IP decisions and to adopt IP policy flexibilities designed to increase access to affordable medicines. The Transparency Chapter contains provisions that allow pharmaceutical companies more access to government decisions listing medicines and medical devices for reimbursement. At the very least, these multiple TPP provisions that extend pharmaceutical powers should be scaled back to the minimum consensus standards reached in the 1994 World Trade Organization (WTO) Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement. Health advocates should convince the US Congress and opponents in other countries to reject an agreement that could so adversely impact access to medicines.

Angie Ngoc Tran is a Professor of Political Economy at California State University, Monterey Bay (CSUMB).
Title: Implications of TPP US/Vietnam Labor Side Agreement (LSA) for workers and labor organizing in Vietnam
Abstract: The TPP US/Vietnam Labor Side Agreement (LSA) is touted as an opportunity for labor reform in Vietnam, especially the right to organize independent labor unions and to broaden the right to strike. Since the signing of this bilateral instrument (the consistency plan), the key stakeholders—the Vietnamese state, the Vietnamese General Confederation of Labor (VGCL, the only union in Vietnam), the Vietnamese Chamber of Commerce and Industry (VCCI), and the global organizations (such as the ILO and international labor rights NGOs)—have been preparing for this trade deal’s ratification. Using a historical perspective, this paper examines the maneuverings of these stakeholders and implications for Vietnamese workers and genuine grassroots labor organizing in light of the increasing power of the state-capital alliance. I analyze the challenges of the VGCL’s using TPP as an opportunity for reforms while preserving the guaranteed benefits, for workers in the current labor union system, that continue in the TPP/LSA consistency plan. 

 I focus on five dilemmas. First, the pros and cons of the employer-paid fee of 2% of payroll contributed to the union, which continues under LSA Item II-B-1, to be paid either to the VGCL or new grassroots unions. Second, while independent unions may present a healthy competition to the VGCL, management can use the “independent labor unions” banner to reabsorb the required 2% of payroll fee by forming their own “yellow unions.” Third, I examine how existing Vietnamese legislative restrictions can pre-empt the broadening scope of strikes in the TPP/LSA. Historically, the government has accused any non-VGCL labor organizing (for strikes/protests) as fronts for anti-government and pro-democracy groups. Fourth, we need to pay attention to Article 19.7 which links TPP/LSA with corporate social responsibility (CSR), holding corporations accountable for their promises to respect Vietnamese labor legislation, including a living wage and environmental rights. Fifth, two forms of transitional implementation mechanisms are needed to empower the workers: first is to protect those who organize and join competing non-VGCL unions (#3 above), and second is to guard against employers’ unfair practices towards labor organizers (VGCL or non-VGCL) and workers.

Errol Meidinger is the Margaret W. Wong Professor of Law at the University of Buffalo and Director of the Baldy Center for Law and Social Policy, a research institute that advances the University’s role in cutting-edge research on law and legal institutions.
Title: The Transpacific Partnership Agreement and Global Environmental Governance
Abstract: This paper examines the likely implications of the Transpacific Partnership Agreement for global environmental governance. After briefly summarizing the potential environmental problems posed by increased trade it reviews the most environmentally important provisions of the Transpacific Partnership Agreement (TPP). Overall it finds them relatively weak in terms of both substantive requirements and implementation institutions. The paper then describes key features of emerging global environmental governance institutions and asks how the TPP provisions may bolster or undermine them. It argues that overall the TPP is unlikely to significantly improve environmental governance, and may undermine it in certain ways. To the degree it does improve environmental governance it will be by injecting environmental discourse into primarily trade-oriented institutions.

Scott Prudham is a Professor in the Geography and Planning Department and the School of the Environment at the University of Toronto.
Title: International Trade Liberalization Agreements as Socio-ecological Fixes, Scott Prudham and Mike Ekers
Abstract: This paper draws on and extends David Harvey’s theory of the spatial fix in order to consider the metabolism of international liberalized trade agreements such as the TPP as institutional forms of socio-ecological fixes. Phrased alternatively, the paper explores the inter-relations among spatial fixes, liberalized trade agreements and the production of nature. After reviewing the most important general insights of Harvey’s theory of the spatial fix, developed over numerous years, we argue that spatial fixes (including liberalized trade agreements such as the TPP) are inherently metabolic; they do not have environmental impacts so much as they are actively constituted by socio-ecological relationships and are in part defined by their conjoined productions of both space and nature. We specifically examine liberalized trade agreements in relation to Harvey’s “inner” and “outer” moments of spatial fixes, arguing that such agreements involve conjoined elements of both moments each with distinct metabolic features. However, drawing on existing work examining the socio-ecological dimensions of liberalized trade agreements (including environmental governance concerns), we argue that agreements such as NAFTA and now the TPP, as with socio-ecological fixes more generally, cannot be understood merely as the expression of or functional responses to the over-accumulation of capital. Rather, trade agreements as socio-ecological fixes must be understood as fundamentally contested arrangements in which social regulation, uneven power relations, and complex coalitions of actors actively constitute the agreements and their implementation. We close then with some thoughts drawing on Karl Polanyi’s emphasis on the inherent tensions between capitalism and democracy exacerbated by liberal modes of market regulation and how this bears on the metabolism of trade agreements. 

Kyla Tienhaara is a Research Fellow at the RegNet School of Regulation and Global Governance and co-director of the Climate and Environmental Governance Network at Australian National University.
Title: Regulatory Chill in a Warming World:
The Threat to Climate Policy Posed by the TPP’s Investment Chapter
Abstract: Chapter 9 of the Trans Pacific Partnership (TPP) provides legal protection to all forms of foreign investment, including investment in sectors that must eventually be rendered obsolete to prevent catastrophic climate change. This paper argues that the fossil fuel industry will utilize the investor-state dispute settlement (ISDS) process found in the TPP in the same manner as the tobacco industry has in recent years in an attempt to stall a global transition to a low carbon economy. The key tactic that fossil fuel corporations will emulate, referred to as ‘cross-border regulatory chill’, leads to a delay in policy uptake in jurisdictions outside of the one in which the ISDS claim is brought. The primary aim is to prevent a ‘domino effect’ of regulatory action around the world. Critically, fossil fuel corporations do not have to win any ISDS cases for this strategy to be effective; they only have to be willing to launch them. The paper additionally explains why it is unlikely that any ‘beneficial’ chilling effects will result from ISDS cases being brought or threatened by renewable energy companies. Finally, the paper addresses the ‘safeguards’ in the TPP and demonstrates that they are insufficient to prevent regulatory chill. The paper concludes that TPP negotiators should have carved out all government measures taken in pursuit of international obligations, including those found in climate change treaties, from the application of Chapter 9 instead of focusing solely on tobacco.

Tony Weis is an Associate Professor in the Department of Geography at the University of Western Ontario.
Title: The Pathology of Trans-Pacific Agro-food Flows and the Institutionalization of Anti-Food Sovereignty
Abstract: Given the urgency of climate change mitigation and the inevitable limits of fossil energy, it is not hard to make a case, on the basis of ‘food miles’ alone, that trans-Pacific flows of agro-food products are unsustainable and that efforts to expand them are extremely undesirable. But food miles are only one aspect of the biophysical contradictions of a globalizing agro-food system in which competitiveness is defined by an illusory and highly destructive definition of efficiency. In short, the increasingly long-distance movements of food (and agro-inputs) are entwined with the increasing industrialization of agro-food systems, and both hinge upon the failure to account for an array of biophysical costs. The nature of economies of scale (including what counts as value and what doesn’t) are also entangled with dramatic consolidations of corporate power throughout modern agro-food systems.

Food sovereignty is a broad aspiration of transnational agrarian movements (TAMs), most notably La Via Campesina, which challenges the legitimacy of corporate power and transnational rules-making and seeks to radically democratize governance in the course of building more equitable and sustainable agro-food systems. Food sovereignty emerged in the 1980s and 1990s out of a growing recognition among small farmers around the world that corporate power was quickly being institutionalized beyond the nation-state, and that their political mobilization had to jump scales in response. The Uruguay Round of the GATT (1986-94) and the establishment of the World Trade Organization (WTO) in 1995 were especially pivotal in this, as TAMs saw the WTO to be locking in a highly uneven playing field for world agriculture, including entrenching liberalization (on top of structural adjustment for much of the Global South), sanctioning extremely imbalanced agricultural subsidy regimes in industrialized countries, and extending US-styled patent protections through TRIPS. This critique of agro-food governance came to occupy a central place in the overall resistance to recurring efforts to deepen the WTO, and ultimately to the gridlock in WTO Ministerials. But this could prove a pyrrhic victory in light of the TPP and other regional trade negotiations where corporations have increasingly turned their attention, as these agreements are poised to extend corporate power over governance in ways that are utterly antithetical to the pursuit of food sovereignty.