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Hub News Article Oct 06, 2015

Negotiations concluded for a Trans-Pacific Partnership Agreement (TPP)

On October 4, 2015, Ministers of the 12 Trans-Pacific Partnership (TPP) countries – Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, United States, and Vietnam – announced the conclusion of negotiations of the TPP.

The agreement includes an investment chapter covering typical investment protection provisions including national treatment; most-favored-nation treatment; fair and equitable treatment in accordance with customary international law; prohibition of expropriation; prohibition on performance requirements; and free transfer of funds related to an investment, subject to exceptions. The chapter will also include provisions preserving the ability of the Parties to regulate investment for public policy objectives.

An investor-State dispute settlement mechanism will be included with safeguards to prevent abusive and frivolous claims and ensure the right of governments to regulate in the public interest, including on health, safety, and environmental protection. The procedural safeguards include: transparent arbitral proceedings, amicus curiae submissions, non-disputing Party submissions; expedited review of frivolous claims and possible award of attorneys’ fees; review procedure for an interim award; binding joint interpretations by TPP Parties; time limits on bringing a claim; and rules to prevent a claimant pursuing the same claim in parallel proceedings. The agreement adopts a “negative-list” approach.

The TPP investment chapter overlaps with at least 23 bilateral investment treaties (BITs) and 29 bilateral and regional FTAs with investment provisions already in existence between the TPP Parties.