The TPP negotiations are largely being conducted secretly, but the New York Times, via WikiLeaks, obtained a draft of the proposal. Based on the leaked documents, there are criticisms from both the political left and right. Both sides complain that even local regulations would be subject to an international tribunal for resolution.
The Obama Administration is currently negotiating with 11 other nations across the Pacific Rim, which account for 40 percent of the global gross domestic product, to form the Trans-Pacific Partnership Agreement (TPP). In some ways mirroring NAFTA, the TPP purports to level the playing field with regard to trade and tariffs among the member nations by creating uniform standards. It also opens the door for corporations to file suit against governments whose trade restrictions harm their business. Those suits would be held in an investor-state dispute tribunal designated by the World Bank or the United Nations.
Supporters, including the United States Trade Representative, believe that the concerns are overblown. That is, under NAFTA, which has a similar provision, there have been only 17 investor state cases, and the United States has prevailed in each case.
Of concern to Intellectual Property attorneys and innovators is the language in the TPP that “proposes to give private companies the ability to enforce public international law whenever a local regulation ‘either directly or indirectly’ expropriates any ‘investment.’ (Art. 11.7). The term ‘indirectly’ opens the process to consideration of what in U.S. constitutional law is referred to as a ‘regulatory taking’ – that is a regulation or regulatory action that diminishes the value of property, even if the government does not take ownership of the property.” The “directly or indirectly” language could potentially give the tribunals the power to overturn decisions made in national courts based on an interest held by an international corporation operating domestically.
Some contend that these regulations, as proposed, would hinder global innovation. Dr. Robert Atkinson, President of the Innovation Technology and Innovation Foundation, asserts that the solution lies in binding the member states to the United States’ method of IP protection through “proper patent, copyright and trade secret protections, effective mechanisms to prevent counterfeiting and digital piracy, as well as 12 years of data protection for innovative and incredibly complex biologic medicines.” Dr. Atkinson indicates that such intellectual property protections in the TPP have broad support both in Congress as well as the business community. The final provisions remain to be seen.
Anna Vradenburgh is a well-respected, business-minded expert in intellectual property issues. As a patent attorney licensed to practice before the United States Patent and Trademark Office, Anna assists clients in patent and trademark prosecution, and represents clients in trademark opposition matters, domain name dispute matters, and patent and trademark litigation. Anna can also assist your company in all manner of intellectual property protection. For more information, visit her website, or contact Anna at (818) 946-2300. This article is for educational purposes only and nothing in this article is intended to be, nor should be considered legal advice.