Public Citizen TPP Links and Analysis

11/18/2015
TransPacificPartnership
TradeDataCenter
TransPacificPartnership(TPP):JobLoss,
LowerWagesandHigherDrugPrices
Onestopshopforsearchabletrade
databases,caselists&more
Haveyouheard?TheTPPisamassive,controversial"freetrade"agreementcurrentlybeingpushed
bybigcorporationsandnegotiatedbehindcloseddoorsbyofficialsfromtheUnitedStatesand11
EyesonTrade
othercountriesAustralia,Brunei,Canada,Chile,Japan,Malaysia,Mexico,NewZealand,Peru,
Singapore,andVietnam.
GlobalTradeWatchblogontrade&
globalization.SubscribetoRSS.
TheTPPwouldexpandtheNorthAmericanFreeTradeAgreement(NAFTA)"trade"pactmodelthat
hasspurredmassiveU.S.tradedeficitsandjobloss,downwardpressureonwages,unprecedented
levelsofinequalityandnewfloodsofagriculturalimports.TheTPPnotonlyreplicates,butexpands
NAFTA'sspecialprotectionsforfirmsthatoffshoreU.S.jobs.AndU.S.TPPnegotiatorsliterallyused
the2011KoreaFTAunderwhichexportshavefallenandtradedeficitshavesurgedasthe
templatefortheTPP.
Inonefellswoop,thissecretivedealcould:
DebunkingTradeMyths
Tohidethefactsaboutfailedtrade
policies,proponentsarechangingthe
data
Connect
with GTW
offshoreAmericanjobsandincreaseincome
inequality,
jackupthecostofmedicines,
sneakinSOPAlikethreatstoInternetfreedom,
empowercorporationstoattackour
environmentalandhealthsafeguards,
exposetheU.S.tounsafefoodandproducts,
rollbackWallStreetreforms,
banBuyAmericanpoliciesneededtocreategreen
jobs,
andunderminehumanrights.
TPP: The Dirti...
Althoughitiscalleda"freetrade"agreement,theTPPisnotmainlyabouttrade.OfTPP's29draft
chapters,onlyfivedealwithtraditionaltradeissues.Onechapterwouldprovideincentivestooffshore
jobstolowwagecountries.Manywouldimposelimitsongovernmentpoliciesthatwerelyoninour
dailylivesforsafefood,acleanenvironment,andmore.Ourdomesticfederal,stateandlocalpolicies
wouldberequiredtocomplywithTPPrules.
G E T I N V O L V E D
TheTPPwouldevenelevateindividualforeignfirmsto
equalstatuswithsovereignnations,empoweringthemto
privatelyenforcenewrightsandprivileges,providedbythe
pact,bydragginggovernmentstoforeigntribunalsto
challengepublicinterestpoliciesthattheyclaimfrustrate
theirexpectations.Thetribunalswouldbeauthorizedto
ordertaxpayercompensationtotheforeigncorporationsfor
the"expectedfutureprofits"theysurmisewouldbeinhibited
bythechallengedpolicies.
WeonlyknowabouttheTPP'sthreatsthankstoleaksthepublicisnotallowedtoseethedraftTPP
text.EvenmembersofCongress,afterbeingdeniedthetextforyears,arenowonlyprovidedlimited
access.Meanwhile,morethan500officialcorporate"tradeadvisors"havespecialaccess.TheTPP
hasbeenundernegotiationforsixyears,andtheObamaadministrationwantstosignthedealthis
year.OppositiontotheTPPisgrowingathomeandinmanyoftheothercountriesinvolved.
Workers Spe...
WatchVideo
The Trans-Pa...
Sepuedeencontrarrecursosenespaolaqu.
Featured Resources:
InitialTPPTextAnalysis:SecretTPPTextUnveiled:It'sWorsethanWeThought
Compilation:EarlyStatementsfromLabor,Consumer,Enviro,Etc.OrganizationsAfterTPPTextRelease
TPPCorporateEmpowermentMap:SeewhichforeigncorporationsnearyoucoulduseNAFTAstyle
investorrightstochallengelawsandregulationsundertheTPP
CaseStudies:InvestorStateAttacksonPublicInterestPolicies
FactsheetSeries:LearnhowtheTPP'sinvestmentrulesharmPublicAccesstoEssentialServices,PublicHealth
andtheEnvironment
Map:WhatWouldtheTPPMeanForYourState?
Memo:InvestorsUseRunaway"FairandEquitableTreatment"Standardin75%of"Successful"CasesAgainst
Governments
Findoutmoreontheblog:ReadthelatestontheTPPonEyesonTrade
ReportsandMemos|PressRoom|CongressSpeaksOut|CivilSocietySpeaksOut
WatchVideo
ViewonSlideShare
Get informed Threats Posed by TPP

http://www.citizen.org/TPP
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11/18/2015
MoreJobOffshoring,MoreIncomeInequality
TheTPPwouldincentivizeoffshoringAmericanjobstolowwagecountries,and
wouldalsoexacerbateU.S.incomeinequality.
UnderminingFoodSafety
TheTPPwouldrequireustoimportmeatandpoultrythatdoesnotmeetU.S.safety
standards.Itwouldimposelimitsonfoodlabeling.
ThreatstoPublicHealth
U.S.negotiatorsarepushingtheagendaofBigPharmaexpandingfirms'monopoly
protectionsfordrugs.TheTPPwouldrestrictaccesstolifesavingmedicinesfor
millionsindevelopingnations,whileunderminingeffortstocontainU.S.medicine
costs.
FinancialDeregulation:Banksters'Delight
TheTPPwouldunderminethereregulationofWallStreet.Itwouldprohibitbanson
riskyfinancialproductsandservicesandundermine"toobigtofail"regulations.
SonofSOPA:CurtailingInternetFreedom
ThoughtSOPAwasbad?TheTPPwouldrequireinternetserviceprovidersto"police"
useractivityandtreatindividualviolatorsaslargescaleforprofitviolators.Plus,the
TPPwouldstifleinnovation.
ByeBuyAmerican&Jobs
TheTPPwouldimposelimitsonhowourelectedofficialscanusetaxdollars
banningBuyAmericanorBuyLocalpreferencesandoffshoringourtaxdollarsto
createjobsabroad.
MorePowertoCorporationstoAttackNations
Foreigncorporationswouldbeempoweredtoattackourhealth,environmentaland
otherlawsbeforeforeigntribunalsonthemerebasisthattheirexpectationswere
frustrated,andtodemandtaxpayercompensationforexpectedfutureprofits.
TurningaBlindEyetoHumanRightsViolations
TheTPPwouldturnablindeyetohumantrafficking,childlaborandantiLGBT
abusesbygivinghumanrightsoffenderslikeMalaysia,VietnamandBrunei
privilegedaccesstotheU.S.market.
Public Citizen Factsheets, Reports & Memos

SecretTPPInvestmentChapterUnveiled:ItsWorsethanWeThought(November5,
2015)
InitialTPPTextAnalysisSecretTPPTextUnveiled:It'sWorsethanWeThought
(November5,2015)
TPPVoteTimeline(September25,2015)
10PresidentialCandidatesCriticizetheTransPacificPartnership,UppingPoliticalCosts
ofSupportingthePact(August21,2015)
TheObamaAdministration's"SeeNoEvil"ApproachtotheTPP(August21,2015)
Seemorereportsandmemos:HideList
StudiesRevealConsensus:TradeFlowsduring"FreeTrade"EraHaveExacerbatedU.S.
IncomeInequality(August20,2015)
ProsperityUndermined:TheStatusQuoTradeModel's21YearRecordofMassive
U.S.TradeDeficits,JobLossandWageSuppression(August20,2015)
TheTPP:MoreJobOffshoringandLowerWages(August20,2015)
OnlyOneof44AttemptstoUsetheWTO's"GeneralException"toDefendaDomestic
PolicyHasEverSucceeded(August19,2015)
CAFTA'sDecadeofEmptyPromisesHauntstheTPP(July28,2015)
TPPVoteCalendar:ObamaAdministrationHypeAboutaTPPVotein2015DoesNot
ComportwithFastTrackTimelines(July23,2015)
Don'tBelievetheHype:AgriculturalExportsLagunderTradeDeals,BelyingEmpty
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PromisesRecycledfortheTPP(July2,2015)
RawDealsforSmallBusinesses:U.S.SmallFirmsHaveEnduredSlowandDeclining
Exportsunder"FreeTrade"Deals(June22,2015)
U.S.PollingShowsStrongOppositiontoFastTrackingMoreoftheSameU.S.Trade
DealsfromIndependents,RepublicansandDemocratsAlike(June9,2015)
TPPWouldLetUsWritetheRules,NotChina?Wait,that'sExactlyWhatWeWereTold
in2000WhenCongressWasSkepticalAboutChinaJoiningtheWorldTrade
OrganizationandWeKnowHowBadlyTHATWorkedOut...(June9,2015)
Map:WhatWouldtheTPPMeanForYourState?(April10,2015)
AnalysisofLeakedTransPacificPartnershipInvestmentText(March25,2015)
CaseStudies:InvestorStateAttacksonPublicInterestPolicies(March6,2015)
JobKillingTradeDeficitsSurgeunderFTAs:U.S.TradeDeficitsGrowMoreThan
425%withFTACountries,butDecline11%withNonFTACountries(February25,
2015)
Watch:GlobalTradeWatch'sBenBeachyDiscussesTPPBrokenPromisesata
CongressionalBriefing(February19,2015)
Infographic:Obamavs.Obama(January21,2015)
Infographic:NAFTATermsReplicatedinTPP(January9,2015)
UpdatedMemo:TPPGovernmentProcurementNegotiations:BuyAmericanPolicy
Banned,aNetLossfortheU.S.(January6,2015)
176MillionWorkersCalltoStopTPPNegotiations(November12,2014)
BuyAmericanWouldBeGuttedundertheTPP:UnravelingtheSpinfromUSTR
(October21,2014)
U.S.TradeOfficialsDefyPostCrisisConsensusBackingCapitalControls(July25,
2014)
TPP:The"Trade"DealthatCouldInflateYourHealthcareBill(July21,2014)
TheRisingUseoftheTradePactSalesPitchofLastResort:TPPForeignPolicy
ArgumentsMimicFalseClaimsMadeforPastDeals(April2014)
Factsheet:LearnhowtheTPP'sinvestmentrulesharmPublicAccesstoEssential
Services(February3,2014)
Factsheet:LearnhowtheTPP'sinvestmentrulesharmPublicHealth(February3,2014)
Factsheet:LearnhowtheTPP'sinvestmentrulesharmtheEnvironment(February3,
2014)
NAFTA's20YearLegacyandtheTransPacificPartnership(January2014)
UpdateonSaltLakeTPPTalks(November25,2013)
Breakdownofthe151DemocraticsignatoriesontheDeLauroMillerFastTrackLetter
(November13,2013)
TPPCorporateFactsheetFlurryManySheets,FewFactsandtheSameOldPromises
thatHaveProvenFalse(November6,2013)
PublicCitizenCommentstoUSTRonJapan'sParticipationinTPPTalks(July2,2013)
UpdatedandExpandedU.S.PharmaceuticalCorporationUsesNAFTAForeign
InvestorPrivilegesRegimetoAttackCanada'sPatentPolicy,Demand$100Millionfor
InvalidationofaPatent(March2013)
Election2012:U.S.PollingShowsNAFTAstyleTradeDealsBecomingEvenMore
Unpopular(January24,2013)
U.S.PeruFTAInvestorRights:LessonsLearnedandNewApproachesNeededfor
TPP(availableinSpanishhere)(November28,2012)
TPP:UnTLCRecardgadoconelMundo(inSpanish)(November21,2012)
InvestorsUseRunaway"FairandEquitableTreatment"Standardin75%of
"Successful"CasesAgainstGovernments(September5,2012)
PublicinterestanalysisoftheleakedTPPinvestmenttext(June13,2012)
PublicCitizenTestimonyRegardingtheProposedUnitedStatesTransPacific
PartnershipFreeTradeNegotiation(March4,2009)
Public Citizen Press Releases & Statements

SecretTPPTextUnveiled:It'sWorseThanWeThought,WithLimitsonFoodSafetyand
ControversialInvestorStateSystemExpanded,RollbackofBushEraMedicineAccess
andEnvironmentalTerms(November5,2015)
WikiLeaksPublicationofComplete,FinalTPPIntellectualPropertyTextConfirmsPact
WouldRaiseCosts,PutMedicinesOutofReach(October9,2015)
AtTPPNegotiations,U.S.TradeRepAttemptstoResolvePharmaceuticalsImpasseby
WrappingSameHarmfulProposalinDifferentPackaging(September30,2015)
Advisory:PublicCitizenExpertsAreatTPPNegotiationsinAtlanta,CanKeepYou
UpdatedontheTalks(September30,2015)
AdministrationDesperateforTransPacificPartnershipDeal:ThereMayBean
Announcement,ButaRealDeal?(September25,2015)
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ReadmorefromtheTPPpressroom:ExpandList
Members of Congress Speak Out

OfficialGovernmentStatementsandActionsagainstInvestorStateDisputeSettlement
(ISDS)
Rep.DeLauroStatementonTPPTextRelease(November10,2015)
Rep.DingellStatementonTPPTextRelease:TPPEvenWorseThanExpected
(November10,2015)
Rep.PocanStatement:ReleaseofTPPTextConfirmsOurFearsAboutTradeDeal
(November10,2015)
Rep.NolanStatementonTPPTextRelease(November10,2015)
Rep.LeeStatementonTPPTextRelease:CreateAmericanJobs,Don'tOffshoreThem
withTPP(November10,2015)
Rep.TimRyanStatementonTPPTextRelease(November10,2015)
Rep.GraysonStatementonTPPTextRelease(November10,2015)
Rep.SlaughterStatementontheTransPacificPartnershipAgreement(October5,2015)
Readmorestatementsandletters:HideList
Rep.NolanStatementontheCompletionofTPPNegotiations(October5,2015)
BipartisanGroupIssuesLetterDemandingStrongTPPAutomotiveRulesOfOrigin
(September30,2015)
CongressionaltradeleadersexpressdeepconcernonTPPtalks(September30,2015)
CongressionalProgressiveCoChairsAskObamaAdministrationtoStandAgainst
TobaccoCompanies(September29,2015)
HouseDemocratsCallonStateDepartment'sInspectorGeneraltoInvestigateMalaysia
HumanTraffickingUpgrade(September28,2015)
Rep.KeithEllisonStatementonChineseCurrencyManipulation(September25,2015)
InAdvanceofWeekendTPPNegotiations,BipartisanGroupof160Representatives
UrgePresidenttoAddressCurrencyManipulation(September25,2015)
Sens.Brown,PortmanUrgeAdministrationtoAddressCurrencyManipulation
(September15,2015)
Sens.Brown,Portman,andStabenow:TransPacificPartnershipMustSupport,Boost
U.S.AutoManufacturing(September10,2015)
FollowingAdministration'sRefusaltoMakeTransPacificTradeAgreementText
Accessible,Sen.BrowntoBlockNomineetoKeyTradePost(August14,2015)
Rep.LevinStatementonChina'sCurrencyDevaluation(August11,2015)
Sen.BrownStatementonChina'sDevaluationofItsCurrency(August11,2015)
Sen.PortmanStatementonChinaAgainLoweringValueofitsCurrency(August11,
2015)
Sen.GrassleyonChina'sLatestCurrencyDevaluation(August11,2015)
Sen.MenendezonReportsofUnduePoliticalPressureinHumanTraffickingReport
(August3,2015)
Rep.EllisonStatementonTransPacificPartnershipNegotiations(August2,2015)
Rep.LevinStatementFollowingTPPNegotiationsinMaui(July31,2015)
Rep.McGovern:TradeDealsShouldNeverTrumpHumanRights(July29,2015)
RepresentativesBlumenauer,DelBene,PetersLeadCallforHighStandard,Enforceable
EnvironmentalProvisionsinTPP(July29,2015)
Rep.Kaptur:HumanTraffickingDecisionUnderminesAmericanWorkers(July27,
2015)
Rep.SchakowskyStatementonMalaysiabeingupgradedintheStateDepartment's
TraffickinginPersonsReport(July27,2015)
BrownStatementonMalaysia'sTierRankingUpgradeinStateDepartment's2015
TraffickinginPersonsReport(July27,2015)
Levin:MalaysiaUpgradeinAnnualTraffickingReport"ExtremelyConcerning"(July27,
2015)
Sen.MenendezonHumanTraffickingReportPoliticization(July27,2015)
RepresentativesBlumenauer,DavisandHimesUrgeProtectionofTimelyandAffordable
AccesstoMedicinesinTPP(July24,2015)
WaysandMeansDemocratsPressUSTRtoProtectAntiTobaccoPublicHealth
MeasuresinTPPNegotiations(July24,2015)
LevinStatementonILRFComplaintthatPeruLaborPracticesinViolationofFreeTrade
Agreement(July23,2015)
HouseDemocraticLeadersUrgeUSTRtoAllowCapitalControlsinTPPNegotiations
(July20,2015)
160MembersofCongressCallonStateDepartmenttoNotUpgradeMalaysiaRankingin
2015TraffickinginPersonsReport(July17,2015)
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Brown,PortmanContinuePushforStrongerCurrencyManipulationEnforcementin
OngoingTradeNegotiations(July16,2015)
PortmanCautionsagainstPossibleUnwarrantedRankingUpgradeforMalaysiain
HumanTraffickingReport(July15,2015)
MembersofCongressWritetoSecretaryKerryOverConcernswithHumanTrafficking
inMalaysia(July17,2015)
Rep.BonamiciUrgesSecretaryKerrytoAvoidUpgradingMalaysia'aHumanTrafficking
Ranking(July16,2015)
Sen.MenendezLeadsBipartisanSenateLetteronPossibleUnwarrantedRanking
UpgradeforMalaysiainHumanTraffickingReport(July15,2015)
TPPinFocus:WhyMexico'sLaborStandardsMatterforTPP(July10,2015)
Rep.LloydDoggettonAlteringofMalaysia'sHumanTraffickingReportCard(July9,
2015)
Rep.LevinStatementonReportsofChangeinMalaysiaHumanTraffickingRanking
(July9,2015)
Rep.LevinStatementonVisitbyVietnamGeneralSecretary(July7,2015)
Boozman,SenatorsUrgeObamatoPrioritizeHumanRightsinMeetingwithVietnamese
Government(July6,2015)
Rep.Ellison:TransPacificPartnershipaBadDealforWorkingAmericans(June25,
2015)
Rep.WatsonColemanStatementonTAA/AGOAPackage(June25,2015)
Rep.Levin:FocusMustNowBeOnVitalIssuesInTPP(June24,2015)
Rep.PocantoU.S.TradeRep.Froman:DoestheTPPincludeClimateChangeLanguage
orNot?(June17,2015)
Sanders:TPPMustBeDefeated(June15,2015)
Rep.GaramendiExpressesStrongOppositiontoFastTrackTradeBillandtheTrans
PacificPartnership"FreeTradeAgreement"(June10,2015)
CongresswomanLee:"WeCannotAllowAnotherBadTradeDealToJeopardizeMore
Jobs"(June10,2015)
Rep.SarbanesWarnsAgainst"FastTrackAuthority"andCriticizesTransPacific
PartnershipAgreement(June10,2015)
Sens.Peters,BrownUrgeHouseLeadershiptoRequireCongressionalApprovalofNew
TPPCountriesinTradeBill(June10,2015)
Rep.SewellUrgesHouseLeaderstoIncludeEnforceabilityProvisionsinAnyTrade
Deal(June9,2015)
Rep.WatsonColeman:FastTrackandtheTransPacificPartnershipVideo(June5,
2015)
Rep.WatersUrgesPresidentObamatoKeepU.S.FinancialReformsOutofTPP(June
5,2015)
Rep.GallegoStandswithAmericanWorkersandAgainstFastTrackandTPP(June3,
2015)
Sen.Sanders:FightingforAmericanWorkersVideo(June3,2015)
Rep.Levin:TPANotNowTheObamaAdministration'sMissedOpportunitytoGet
TPPRight(June1,2015)
TPPinFocus:IsTPPtheMostProgressiveTradeAgreementinHistory?NotIfYou
NeedAccesstoAffordableMedicines.(May28,2015)
Sen.SandersStatementonSenateVoteonJobKillingTradeBill(May23,2015)
Sen.ElizabethWarren:TradeDealShouldbePublicBeforeCongressVotesonFast
Track(May22,2015)
SenatorWarrenReleasesReportHighlightingDecadesofBrokenPromisesandFailures
toEnforceLaborStandardsinTradeAgreements(May18,2015)
Sen.Sanders:NotoJobKillingTradeBill(May14,2015)
Rep.DeLauroCallsForReleaseOfTransPacificPartnershipFoodSafetyChapter(May
14,2015)
FollowingNewsofPathForwardforTradeDeal,Sen.BrownCallsonPresidenttoVeto
FastTrackBillUnlessHeSignsEnforcementBillFirst(May13,2015)
Sen.UdallJoinsSenateCoalitionCallingforStrongLaborStandardsinTransPacific
PartnershipandImplementationofStandardsinTPPCountries(May11,2015)
Sens.Markey,Brown,Cardin,Schumer,Stabenow,Casey,Franken,Baldwin,Peters,
Udall,Blumenthal,Schatz,Merkley,AndWarrenCallForStrongLaborStandardsIn
TransPacificPartnershipAndImplementationOfStandardsInTPPCountries(May11,
2015)
Sen.FrankenSaysLaborStandardsinTransPacificPartnershipTooWeak,Callsfor
ImprovedProtectionsforWorkers(May11,2015)
BrownStatementFollowingPresident'sVisittoNikeFacility(May9,2015)
SandersStatementonObamaatNikeHQ(May8,2015)
Sen.Casey,ErieWorkersDetailHow"FastTracking"EmergingTradeDealCouldCost
NorthwesternPAJobs,HarmWages(May8,2015)
NikeKnowHow:ThreeKeyQuestionsonLabor(May7,2015)
Sen.Sanders:JustDon'tDoIt(May7,2015)
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Sen.Schumer:WithoutImprovementstoTradeDeal,SignificantNumberof
ManufacturingJobsWouldGoOverseasSchumerUrgesSenatetoSupportBipartisan
BilltoCrackDownonChinaCurrencyManipulation&OtherPredatoryPractices
ChinasTradePracticesOverthePastDecade,IncludingCurrencyManipulationHas
ErasedNearly180,000NYJobs(May6,2015)
Rep.Lofgrenleadsbipartisanlettercallingforenforceablehumanrightsandlabor
standardsinTransPacificPartnership(May5,2015)
AsCongressBeginsDebateonFastTrackforMoreTradeDeals,Sen.BrownJoins
WorkersinClevelandtoStandAgainstMoreNAFTAStyleTradeDeals(May4,2015)
Rep.Casey,PittsburghWorkersDetailHow"FastTracking"EmergingTradeDealCould
CostWesternPAJobs,HarmWages(May1,2015)
MichiganDelegationFreshmenUrgeAdministrationtoAddressCurrencyManipulation
(May1,2015)
ProgressiveCaucusStatementonPrimeMinisterAbe'sAddress(April29,2015)
Rep.DingellStatementonJointAddressbyJapanesePrimeMinisterShinzoAbe(April
29,2015)
KapturCallsOutJapanforUnfairTradePolicies,CurrencyManipulation(April29,
2015)
Sen.HeinrichOpposesTradeProposal(April27,2015)
AsTradeTalksContinue,Sen.BrownJoinsWorkersinToledotoStandAgainstMore
NAFTAStyleFastTrackedTradeDeals(March30,2015)
Sen.BrownStatementonReleasedTransPacificPartnershipInvestmentProvisions
(March26,2015)
Rep.DeLauroStatementOnISDSTransPacificPartnershipChapter(March26,2015)
MembersOfCongressToUSTR:StopMakingFalseClaimsOnTheTradeDeficit
(March19,2015)
Reps.Ryan,KapturToUSTR:"CheckYourMathOnTradeDeficits"(March19,2015)
Sens.Baldwin,MerkleyIntroduceTradeLegislationtoLevelthePlayingFieldfor
AmericanManufacturing(March12,2015)
CongresswomanFudgeStatementinOppositionto"FastTrack"AuthorityfortheTrans
PacificPartnership(TPP)FreeTradeAgreement(March11,2015)
DeLauro,SlaughterStatementOnUSKoreaTradeDeficitNumbers(March6,2015)
DeFazioUrgesDefeatofControversialTradeDeal(March4,2015)
WorkdayMinnesota:LaborurgesCongresstopumpthebrakesonfasttrack(March3,
2015)
StandingUpforWorkersHitbyUnfairTradeDeals(March2,2015)
SenatorstoU.S.TradeRep:EndTradeDealSecrecy(February28,2015)
SenatorstoU.S.TradeRep:EndTradeDealSecrecy(February26,2015)
Video:TradeTalksContinue,BaldwinSpeaksOutonU.S.TradePolicy(February26,
2015)
LGBTMembersofCongressRaiseConcernsAboutIncludingofBruneiandMalaysiain
TPPNegotiations(February18,2015)
BipartisanGroupIntroducesLegislationtoCrackDownonCurrencyManipulation
(February10,2015)
CongressmanDanKildee:FailuretoAddressCurrencyManipulationinNewTradeDeal
WouldHurtAmericanCompetitiveness,RiskU.S.Jobs(February10,2015)
Sanders:NewTradeDealWouldHurtAmericanWorkers(February6,2015)
LevinOpeningStatementatHearingontheU.S.TradePolicyAgenda(January27,2015)
Reps.Aguilar,MoultonandTorresExpressConcernswithFastTrackandtheTPP
(January27,2015)
Rep.AdamsWritestoPres.ObamatoVoiceConernswithFastTrackfortheTPP
(January26,2015)
Rep.LipinskiOpposesGivingUpCongressionalAuthorityandAllowingPresidentto
"FastTrack"InternationalTradeAgreements(January22,2015)
Rep.RubenGallegoLeadsFreshmanMembersinCallingforaGreaterRolefor
CongresstoEnsureaNewAmericanTradePolicyCreatesMiddleClassJobs(January
21,2015)
FollowingCallforFastTrackAuthorityDuringStateofTheUnionAddress,Brown
UrgesAdministrationtoStandUpforAmericanWorkersandBusinesses(January20,
2015)
Rep.NorcrossWritestoObamatoExpressSeriousReservationswithFastTrackforthe
TPP(January12,2015)
DeLauroStatementOnTransPacificPartnershipNegotiations(January9,2015)
CongresswomanLeeSpeaksOutAgainstFastTrackforTransPacificPartnership
(January8,2015)
CongressmanKildeeExpresses"GraveConcern"OverPresidentObama'sPushforFast
TrackingTPPTradeDeal(January7,2015)
SandersContrastsU.S.TradeSecrecytoEUTransparency(January7,2015)
Sanders:TradePactTermsMustbeDisclosed(January5,2015)
Sanders:TPPTradeDeala'Disaster'(December29,2014)
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SenatorBaldwinQuestionsTransPacificPartnershipProvisionsThatWouldMakeit
HardertoPreventFinancialCrises(December19,2014)
Warren:SenatorsRaiseConcernstoUSTRAboutTransPacificPartnershipProvisions
ThatCouldMakeitHardertoPreventFinancialCrises(December19,2014)
Sens.Warren,MarkeyandBaldwinWritetoExpressTheirConcernsWiththeTPP's
ThreatstoFinancialStability(December18,2014)
CongressmanLevin:TheFocusRightNowMustbeonTPP,notTPA(December5,
2014)
Rep.DonnaEdwardsandRep.WalterJonesLead122MembersofCongressonaLetter
UrgingObamatoProtect"BuyAmerican"PreferencesinTPP(July30,2014)
PressCall:Reps.EdwardsandDeLauroUrgeProtectionof"BuyAmerican"intheTPP
(July30,2014)
153HouseDemocratstoUSTRFroman:ProtectWorkers'RightsinTPPNegotiations
(May29,2014)
Rep.DeLauro:ColombiaFTAInadequaciesinProtectingWorkerRightsMustNotbe
RepeatedinTPP(May15,2014)
BipartisanCongressionalLetterHighlightsDangersofVietnameseSeafoodinTPP(May
13,2014)
Sen.BrownUrgesAdministrationtoAddressTPP"InvestorState"Provisionsthat
WouldEmpowerBigTobaccotoChallengePublicHealthLaws(May1,2014)
Sen.WydenCallsForTransparencyinSecretiveTradeDeals(May1,2014)
Rep.DeLauro:"NoAppetitetoProvidetheAdministrationwithFastTrackAuthorityto
RamAnotherBadTradeDealthroughCongress"(April25,2014)
BipartisanGroupof63MembersofCongressUrgeObamaAdministrationtoNotSign
TPPUnlessJapanEliminatesAgriculturalTariffs(April21,2014)
DeFazio,Blumenauer,120MembersofCongressUrgeEnvironmentalProtectionsin
TradeDeal(February20,2014)
Rep.SchakowskyandColleaguesSendLettertoPresidentObamaExpressingConcern
OverAccesstoAffordableHealthCareandtheTransPacificPartnership(December9,
2013)
Video:MembersofCongressSpeakOutontheHouseFloorAgainsttheTPP(December
5,2013)
DeLauro,MillerLead151HouseDemsTellingPresidentTheyWillNotSupport
OutdatedFastTrackforTransPacificPartnership(seetheletterhere)(November13,
2013)
11SenatorsUrgeUSTRtoSafeguardTobaccoControlMeasures,ProtectPublicHealth
inTradeAgreements(November13,2013)
6HouseRepublicanssendlettertoPresidentObamaexpressingoppositiontoFastTrack
tradeauthority(November12,2013)
23HouseRepublicanssendlettertoPresidentObamaexpressingoppositiontoFastTrack
tradeauthority(seetheletterhere)(November12,2013)
10HouseWays&MeansDemocratssendlettertoPresidentObamaexpressing
oppositiontoFastTracktradeauthority(seetheletterhere)(November12,2013)
56MembersofCongressWritePresidentObamaExpressingDisappointmentwithWeak
U.S.TPPTobaccoPublicHealthExceptionProposal(October30,2013)
SixtySenatorsUrgeAdministrationtoCrackDownonCurrencyManipulationinTrans
PacificPartnershipTalks(September24,2013)
BipartisancongressionallettertoUSTRFromancallsforabalancedapproachto
intellectualpropertyandincreasedtransparencyinTPPnegotiations(August6,2013)
CaliforniaDemocraticPartyresolutioncallingforwithdrawalfromtheTPPandfora
new,moretransparentparadigmfortradenegotiations(July21,2013)
SenatorWarrenOpposesNominationofFromanforUSTRCitesNeedforTransparency
inTPPNegotiations(June19,2013)
RepresentativeGraysonBecomesFirstMemberofCongresstoViewSecretTrade
Agreement(June18,2013)
LetterfromSenatorElizabethWarrentoUSTRNomineeMichaelFromancallingfor
transparencyinTransPacificPartnershipnegotiationsandareleaseofthenegotiating
texts(June13,2013)
36FreshmenintheHouseofRepresentativesCallforIncreasedTransparencyinin
TransPacificPartnership(TPP)Negotiations,ExpressConcernswithTPPandOppose
FastTrackinLettertoWaysandMeansChairmanSanderLevin(June11,2013)
JointResolutionfromMaineStateLegislatureAgainstFastTrack(June10,2013)
230MembersoftheHouseofRepresentativesSendLettertoPresidentObamaCalling
fortheTPPtoAddressCurrencyManipulation(June6,2013)
Morethen50statelegislatorsraiseconcernsabouttheTPP'sthreattotheenvironmentin
lettertoUSTR(May20,2013)
SenatorElizabethWarrenwarnsofTPP'sthreattoU.S.financialregulations(video)(May
9,2013)
MembersofCongressSendaLettertoUSTRCallingforProtectionofDolphinSafe
TunalabelingintheTPP(October25,2012)
7/9
11/18/2015
10SenatorsSendaLettertoUSTRCallingforaStrongEnvironmentChapterintheTPP
(October10,2012)
Rep.LofgrenSendsaLettertoUSTRCallingforTransparencyinTPPNegotiations
(September20,2012)
Video:RepresentativeDeFaziospeaksagainstthesecrecyoftheTPPnegotiationsonthe
floorofCongress(September13,2012)
HouseDemocratsCallOnUSTRToAllowAccessToTPPNegotiations(August28,
2012)
StateLegislatorsFrom50StatesUrgeTPPNegotiatorstoRejectInvestorStateDispute
Settlement(July5,2012)
PressStatementfromRepresentativeDarrellIssaonBeingDeniedTPPObserverStatus
(July1,2012)
132MembersofCongressCallforTransparencyandCongressionalConsultationinTPP
Negotiations(seetheletterhere)(June27,2012)
SenatorBrownAnnounces21stCenturyTradeAgreements&MarketAccessAct(June
27,2012)
SenatorsSpeakOutAgainstLackofTransparencyInTPPNegotiations(June25,2012)
SenateFinanceSubcommitteeonTradeChairRonWydenFloorStatementonTPP
Secrecy,UndueCorporateInfluencewhileIntroducingTransparencyBill(May23,2012)
Rep.FrankandRep.LevinCallonAdministrationtoClarifyPositiononCapitalControls
inTPP(May23,2012)
ManufacturingGroups'LettertoSec.Geithner&USTRKirkonTPPandCurrency(May
22,2012)
Rep.DonnaEdwards&Rep.NickRahallLead69MembersofCongresstoUrgeObama
toProtect"BuyAmerican"PoliciesinTPP(May3,2012)
LetterfromHouseJudiciaryCommitteeChairSmithandRankingMemberConyersto
USTRKirkCallingforImmigrationProvisionstoNotbeIncludedin"Trade"
Agreements(March5,2012)
JapaneseRepresentativesPetitionAgainstJoiningTPPNegotiations(November10,
2011)
JapaneseRepresentativesEmergencyResolutionagainstanImmaturePledgetoJoinTPP
Negotiations(October21,2011)
Rep.HenryWaxmanandColleaguesWritetoKirkonAccesstoMedicinesinTPP
Negotiations(October19,2011)
Rep.JohnLewisandColleaguesWritetoAmbassadorKirkonTPPPublicHealth
Standards(September8,2011)
CongresswomanRosaDeLauroStatementontheTPPandFoodSafety(September7,
2011)
SeniorHouseDemocratsLettertoPresidentObamaonForeignInvestorPrivilegesinthe
TPP(December15,2010)
CongresswomanLindaSanchezUrgesReformtoUSTradePolicy(December15,2010)
DemocraticWaysandMeansCommitteeMembers'LettertoUSTRKirkonTPP
NegotiatingObjectives(December2010)
Rep.WutoPresidentObamaonTPPDemocracyClause(October6,2010)
Rep.WuCallsforPromotingHumanRightsinTransPacificPartnershipTradeTalks
(October6,2010)
LetterfromFourSenatorstoUSTRKirkExpressingConcernswithTransparencyand
Labor,HumanRightsintheTPP(March12,2010)
30SenatorsWritetoUSTRKirkExpressingConcernsonIncreasingDairyMarket
AccessforNewZealandinTPPNegotiations(March11,2010)
HouseTradeWorkingGroupLettertoUSTRKirkonTPP(January20,2010)
Civil Society Organizations Speak Out

EarlyStatementsfromLabor,Consumer,Enviro,Etc.OrganizationsAfterTPPText
Release(November10,2015)
SierraClubStatement:TPPTextIsConcreteEvidenceofToxicDeal(November10,
2015)
SierraClubAnalysisofTPPEnvironmentChapter(November10,2015)
StatementsfromEnvironmentalOrganizationsonTPPEnvironmentChapter(November
10,2015)
NRDCStatementonTPPTextRelease:TPPWeakensProtections,ShouldBeRejected
(November10,2015)
DefendersofWildlifeStatementonTPPTextRelease:TPPFallsShortforWildlife
(November10,2015)
UnitedSteelworkersStatement:USWOpposesAmericanJobKillingTPP(November10,
2015)
EnvironmentalInvestigationAgencyStatement:EIADoesNotSupportTPP(November
8/9
11/18/2015
10,2015)
350.orgStatement:TPPTextConfirmsAHandouttotheFossilFuelIndustry(November
10,2015)
CenterforInternationalEnvironmentalLawStatement:TPPTextThreatensEnvironment,
PublicHealth,Democracy(November10,2015)
FriendsoftheEarthStatement:TPPTextExposesThreattoEnvironment,Climate
(November10,2015)
GreenpeaceStatementonTPPTextRelease(November10,2015)
AFLCIOStatementonTPPTextRelease(November10,2015)
CommunicationsWorkersofAmericaStatementonTPPTextRelease(November10,
2015)
TeamstersStatementonTPPTextRelease(November10,2015)
InternationalTradeUnionConfederationStatement:FearsOverTransPacificPartnership
Confirmed(November10,2015)
MachinistsUnionStatementonTPPTextRelease(November10,2015)
UnitedFoodandCommercialWorkersUnionStatementonTPPTextRelease(November
10,2015)
NationalFarmersUnionStatement:TPPWillFailFamilyFarmersandRanchers
(November10,2015)
AllianceforRetiredAmericansStatement:TPPTextProvesSeniorsHaveBeenRightto
WorryAboutHigherPrescriptionDrugPrices(November10,2015)
NationalNursesUnitedStatement:FinalTPPTextEvenWorseThanAdvertised
(November10,2015)
NETWORKNationalCatholicSocialJusticeLobbyStatementonTPPTextRelease
(November10,2015)
FoodandWaterWatchStatementonTPPTextRelease(November10,2015)
DoctorsWithoutBordersStatementonTPPTextRelease(November10,2015)
Readmorestatementsandletters:ExpandList
Other Resources
Leak:WikiLeaksreleasesInvestmentChapterofTPPnegotiations(March25,2015)
Leak:WikiLeaksreleasesIPChapterofTPPnegotiations(October2014)
Leak:WikiLeaksreleasesEnvironmentChapterofTPPnegotiations(January2014)
LeesburgRoundNegotiations:Readabouteventsandpresscoverageofthe14thTPPnegotiatinground,which
tookplacefromSeptember615,2012.Findourupdatesontheroundhere.
DallasRoundNegotiations:Readabouteventsandpresscoverageofthe12thTPPnegotiatinground,which
tookplacefromMay818,2012.
WallachandBeachyintheNewYorkTimes:Obama'sCovertTradeDeal(June2,2013)
Readmore:ExpandList
ReadmoreinourTransPacificPartnershipExternalResources
9/9
Initial Analyses
Secret TPP Text Unveiled: Its Worse than We Thought
MARKET ACCESS: Where is the Upside for U.S. Workers and Producers
Because Downside is Clear
The TPP lowers U.S. tariffs to zero, giving our competitors unfettered access to the U.S. market while
some other countries are allowed dramatically longer periods of time to open their markets.
The ability of other countries, like Vietnam, to maintain their tariffs for significant periods of time
will provide further incentives for U.S. companies to outsource production and offshore jobs and use
Vietnam as an export platform to send their products back to the U.S. A good example of this is our
experience with China where more than 45% of the products produced by foreign-invested enterprises
are exported to the U.S. rather than sold to Chinese consumers.
According to an initial analysis published in the Wall Street Journal, the U.S. market access
concessions alone will increase the U.S. trade deficit in manufactured goods and autos and auto parts
by more than $55 billion dollars resulting in the loss of more than 330,000 jobs.
Tariffs are not the only impediment to U.S. exports to TPP countries. The TPP countries with whom
the U.S. does not have existing free trade agreements with have utilized various market access
impediments as well as maintain state-owned enterprises and non-market economic policies
(Vietnam) to ensure the success of their companies. The TPP will do little to ensure that access for
U.S. exports will increase to offset the flood of imports that are anticipated.
Currency manipulation can ensure that any market access achieved in this chapter is undermined.
RULES OF ORIGIN CHAPTER: ROOs, Particularly for Autos, Wont

Promote Jobs in U.S., Or Wider TPP Area
The single most critical area where the rules of origin concern domestic production and the workforce
is in the auto and auto parts sector. The TPP dramatically lowers the existing North American
Free Trade Agreement requirement of 62.5% content (which itself did not work well and
promoted a major production shift to Mexico) to a new 45%, TPP-wide regional
This initial analysis is a compilation of contributions by labor and public interest experts. For more information
on labor, jobs, wages, ROO, SOE and other terms, please contact: Celeste Drake, AFL-CIO; Owen Herrnstadt,
Machinists Union; on the environment, energy, climate and ISDS challenges to such policies contact Ben
Beachy and Ilana Solomon, Sierra Club; on food safety and agriculture issues, please contact Patrick Woodall
and Tony Corbo, Food and Water Watch; on copyright issues, please contact Maira Sutton and Jeremy
Malcolm, EFF; on Investment/ISDS, Financial Services, National Security and Other Exception Texts please
contact Lori Wallach and Robijn van Giesen, Public Citizens Global Trade Watch; on access to medicines
implications of patent and medicine pricing rules, please contact Peter Maybarduk, and Burcu Kilic, Public
Citizens Access to Medicines program.
value content standard based on the net cost method. This is a substantial drop in the
requirement for content that will increase the percentage of parts from China and other nonTPP countries that could be in a vehicle and still qualify for the vast preferences of the
Agreement.
o
Essentially, an auto with 55% Chinese content could be considered to be Made in America
or Made in the TPP under the provisions of the Agreement, qualifying for its tariff benefit
while undermining the premise that somehow China would have to raise its standards in order to
benefit from the TPP.
In the final days of the negotiations, the TPP text was modified to include a new provision that
would grant preferences for additional parts that would be considered to be made by a TPP
country whether or not they, in fact, were actually produced in those countries. This new
approach opens up a huge loophole that might, in fact, result in the stated 45% requirement actually
being closer to 30-35% making it the lowest rule of origin requirement of any FTA involving the U.S.
o
This new provision establishes a standard that appears to be similar to a deemed

originating standardmeaning many important auto parts will count as TPP-originating
whether or not they actually came from a TPP country. Parts subject to this weaker rule
include certain body parts, glass and other items.
In addition, the rules of origin would potentially allow for further reductions in the value of the
content that might have to come from a TPP country to qualify for the Agreements
benefits: parts that met the low thresholds in the Agreement would then be considered to
originate in the TPP essentially then being considered to be 100% sourced in the TPP, driving
the nominal 45% regional value content down even further.
The Wall Street Journal published an initial estimate that the U.S. trade deficit in autos and
auto parts would increase by $23 billion making it the single greatest loser of any sector.
Finally, it is important to note that additional countries could dock on to this agreement in the
future. Therefore, the ROO standard could prove to be weakened over time as more production
is shifted to non-TPP countries, threatening U.S.-based auto supply chain jobs.
PROCUREMENT CHAPTER: Rules on Buy America, Buy Local Americas Domestic Producers & Their Employees, Responsible
Purchasing Policies Net Losers
Trade commitments that require the federal government to treat foreign bidders as if they were U.S.
bidders undermine one of most important job creation tools: fiscal policy. Governments should be
able to use stimulus funds to create jobs within their borders, and not be required to spend those funds
to create jobs elsewherenor should developing countries be prevented from using their limited funds
on domestic stimulus. That is why the AFL-CIO recommended omitting a Government Procurement
chapter from TPP.
The TPP gives bidders from Vietnam, Malaysia, Brunei, and other TPP countries expansive
access to U.S. goods, services, and construction contracts.
It is not clear that responsible bidding criteria (such as a requirement that a bidder not have
outstanding environmental clean-up obligations or the use of bonus points for bidders with
better safety records) will be free from barriers to trade type challenges.
Though the agreement does not cover state procurement at this time, the TPP requires that the
Parties commence negotiations with a view to achieving expanded coverage, including subcentral coverage within three years. Such provisions could undermine popular local and state
preference programs.
Given that USTR has not produced any studies showing that Government Procurement provisions in
prior agreements are net job and wage winners for U.S.-based workersdespite repeated requests
we can only conclude that such evidence does not exist and that this entire chapter is a gain for global
corporations, but not for U.S. workers.
Partial list U.S. procuring entities now open to TPP bidders (there are at list 93 specific procuring
entities listed): Department of Transportation (in part), Department of Defense (in part), Department
of Veterans Affairs, Department of State, Department of Agriculture (in part), Department of
Homeland Security (in part), General Services Administration, The Smithsonian Institution, Federal
Prison Industries, Inc., Federal Reserve System, Federal Communications Commission, Tennessee
Valley Authority (except Malaysia)
ENVIRONMENT CHAPTER: The TPP Would Increase Risks to Our Air,

Water, and Climate
Multilateral Environmental Agreements (MEAs) Rollback: The TPP actually takes a step back
from the environmental protections of all U.S. free trade agreements (FTAs) since 2007 with respect
to MEAs. Past deals have required each of our FTA partners to adopt, maintain, and implement laws,
regulations, and all other measures to fulfill its obligations under seven core MEAs. The TPP,
however, only requires countries in the pact to adopt, maintain, and implement domestic policies to
fulfill one of the seven core MEAs the Convention on International Trade in Endangered Species of
Wild Fauna and Flora (CITES). This regression violates:
o The bipartisan May 2007 agreement between then-President George W. Bush and congressional
Democrats;
o The minimum degree of environmental protection required under the Bipartisan Congressional
Trade Priorities and Accountability Act of 2015, also known as fast track; and
o The minimum obligation needed to deter countries from violating their critical commitments in
environmental treaties in order to boost trade or investment.
Weak Conservation Rules: While the range of conservation issues mentioned in the TPP may be
wide, the obligations what countries are actually required to do are generally very shallow. Vague
3
obligations combined with weak enforcement, as described below, may allow countries to continue
with business-as-usual practices that threaten our environment.
o Illegal Trade in Flora and Fauna: Rather than prohibiting trade in illegally taken timber and
wildlife major issues in TPP countries like Peru and Vietnam the TPP only asks countries to
combat such trade. To comply, the text requires only weak measures, such as exchanging
information and experiences, while stronger measures like sanctions are merely listed as options.
o Illegal, Unreported, and Unregulated (IUU) Fishing: Rather than obligating countries to abide by
trade-related provisions of regional fisheries management organizations (RFMOs) that could help
prevent illegally caught fish from entering international trade, the TPP merely calls on countries to
endeavor not to undermine RFMO trade documentation a non-binding provision that could
allow the TPP to facilitate increased trade in IUU fish.
o Shark Finning and Commercial Whaling: Rather than banning commercial whaling and shark fin
trade major issues in TPP countries like Japan and Singapore the TPP includes a toothless
aspiration to promote the long-term conservation of sharksand marine mammals via a nonbinding list of suggested measures that countries should take.
Climate Change Omission: Despite the fact that trade can significantly increase climate-disrupting
emissions by spurring increased shipping, consumption, and fossil fuel exports, the TPP text fails to
even mention the words climate change or the United Nations Framework Convention on Climate
Change the international climate treaty that all TPP countries are party to.
Lack of Enforcement: Even if the TPPs conservation terms included more specific obligations and
fewer vague exhortations, there is little evidence to suggest that they would be enforced, given the
historical lack of enforcement of environmental obligations in U.S. trade pacts. The United States has
never once brought a trade case against another country for failing to live up to its environmental
commitments in trade agreements even amid documented evidence of countries violating those
commitments.
For example, the U.S.-Peru FTA, passed in 2007, included a Forestry Annex that not only required
Peru to combat trade associated with illegal logging, but included eight pages of specific
reforms that Peru had to take to fulfill this requirement. The obligations were far more detailed
than any found in the TPP environment chapter, and were subject to the same enforcement
mechanism. But after more than six years of the U.S. Peru trade deal, widespread illegal logging
remains unchecked in Peru's Amazon rain forest. In a 2014 investigation, Perus own government
found that 78 percent of wood slated for export was harvested illegally. For years, U.S.
environmental groups have asked the U.S. government to use the FTA to counter Perus extensive
illegal logging. Yet to date, Peru has faced no formal challenges, much less penalties, for violating
its trade pact obligations. It is hard to imagine that the TPPs weaker provisions would be more
successful in combatting conservation challenges.
New Rights for Fossil Fuel Corporations to Challenge Climate Protections
The TPP would undermine efforts to combat the climate crisis, empowering foreign fossil fuel
corporations to challenge our environmental and climate safeguards in unaccountable trade
tribunals via the controversial investor-state dispute settlement system.
4
The TPPs extraordinary rights for foreign corporations virtually replicate those in past pacts that
have enabled more than 600 foreign investor challenges to the policies of more than 100
governments, including a moratorium on fracking in Quebec, a nuclear energy phase-out in
Germany, and an environmental panels decision to reject a mining project in Nova Scotia.
In one fell swoop, the TPP would roughly double the number of firms that could use this system to
challenge U.S. policies. Foreign investor privileges would be newly extended to more than 9,000
firms in the United States. That includes, for example, the U.S. subsidiaries of BHP Billiton, one
of the world's largest mining companies, whose U.S. investments range from coal mines in New
Mexico to offshore oil drilling in the Gulf of Mexico to fracking operations in Texas.
Locking in Natural Gas Exports and Fracking: The TPPs provisions regarding natural gas would
require the U.S. Department of Energy (DOE) to automatically approve all exports of liquefied natural
gas (LNG) to all TPP countries including Japan, the worlds largest LNG importer. This would:
o Facilitate Increased Fracking: Increased natural gas production would mean more fracking, which
causes air and water pollution, health risks, and earthquakes, according to a litany of studies.
o Exacerbate Climate Change: LNG is a carbon-intensive fuel with significantly higher life-cycle
greenhouse gas emissions than natural gas. LNG dependency spells more climate disruption.
o Increased Dependence on Fossil Fuel Infrastructure: LNG export requires a large new fossil fuel
infrastructure, including a network of natural gas wells, terminals, liquefaction plants, pipelines,
and compressors that help lock in climate-disrupting fossil fuel production.
LABOR CHAPTER: Vietnam, Malaysia Side Agreements a New Low,

Labor Text Does Not Make Significant, Meaningful improvements Over
Bush Standards that Have Not Improved Conditions
Firms that can operate in conditions in which ILO core labor standards are not respected drive down
wages and working conditions, drawing in additional investment, enabling social dumping of lowerpriced goods, and suppressing wages and working conditions in other markets against which
producers everywhere are forced to compete.
Past trade agreements, even those that contain the so-called May 10 provisions, failed to
protect labor rights and reverse the race to the bottom. The TPP Labor Chapter does not make
significant, meaningful improvements over the nearly decade old George W. Bush era standard.
Rather, the side arrangements made with Vietnam, Malaysia and Brunei represent a new low. The
achievements touted by USTR appear to be of limited value.
The vast majority of the recommendations made by organized labor were completely ignored. A
sampling of labor asks omitted from the TPP:
o To improve compliance and enforceability, define the core labor standards, e.g., by referring to ILO
Conventions
o To protect workers and raise wages, require that Parties not waive or derogate from any of their labor
laws (laws implementing either ILO Core Conventions or acceptable conditions of work)
regardless of whether the breach occurred inside or outside of a special zone
5
o To protect workers and raise wages, define acceptable conditions of work more broadly to include
such concepts as payment of all wages and benefits legally owed and compensation in cases of
occupational injuries and illnesses
o To increase compliance with labor obligations, include commitments aimed at ensuring effective
labor inspections
o To increase compliance with labor obligations, allow a petitioner to make a complaint based on a
single egregious violation, rather than waiting for a sustained or recurring course of action to occur
o To remove requirement that violations must be in a manner affecting trade or investment between the
parties, which leaves out most public sector workers.
o To prevent abuse of vulnerable workers and a spiral to the bottom in wages and working conditions,
ensure migrant workers receive the same rights and remedies as a countrys nationals
o To prevent human trafficking and forced labor, establish enforceable rules for international labor
recruiters
o To ensure timely enforcement and reduce unwarranted delays, establish clear, universal timelines for
consideration of labor complaints
o To reduce excessive discretion to ignore or delay labor complaints, require that a Party that has
received a meritorious complaint will promptly and zealously pursue the case (to avoid years-long
delays like those confronted in the Guatemala and Honduras cases)
o To help raise standards across the region, create an independent labor secretariat that researches
emerging labor issues and reports on best practices and establish Trans-Pacific works councils for
firms operating in more than one TPP country
Instead, the USTR made minor changes likely to have little impact:
o The commitment to discourage trade in goods made with forced labor is not equivalent to a
commitment to prohibit trade in such goods. It could be met by hanging a poster, for example.
o The commitment to have laws regarding acceptable conditions of work fails to set standards for such
laws. The minimum wage in Brunei could be a penny an hour, for example.
o The commitment not to waive or derogate from laws implementing acceptable conditions of work in
an Export Processing Zone leaves most TPP workers unprotected. The commitment is too narrow to
be of clear value to workers.
o Too much of the new text (vis a vis May 10) relies on legally imprecise language like may and
endeavor to encourage. Such language, which is aspirational rather than obligatory, does not
provide the clear protections workers in the region need to organize, collectively bargain, and raise
their wages in a safe and just working environment. Aspirational language will not help build new
markets for U.S. products.
Analysis of the country specific plans to follow in the coming days, but we note with great
disappointment the lack of any plan for Mexico, which is and has long been woefully out of
compliance with international labor standards. To be clear, we maintain that no country should get
TPP benefits until it complies with all the obligations of the TPP, including its labor standards.
EXCEPTIONS CHAPTER: National Security Exception Weakened, No

New Safeguards for Environmental, Health, Human Rights Policies
6
The final text reveals a significant roll back of the standard Security Exception that has been
part of U.S. trade agreements over the past decade. (See Article 29.2) Following a major port
security concern relating to the U.S.-Oman Free Trade Agreement, U.S. trade pacts since have
included a footnote making explicit that a country raising a national security defense for a policy that
otherwise violates a trade pact obligation is empowered to determine in its sole discretion what are its
essential security interests. While the language of the Security Exception in the TPP is otherwise
identical to past U.S. pacts, the footnote has been eliminated. Yet the footnote was inserted in past
pacts to ensure that trade pact tribunals could not substitute their judgement for that of governments
with respect to what policies were deemed necessary for the fulfillment of its obligations with
respect to the maintenance or restoration of international peace or security, or the protection of its
own essential security interests. The footnote missing in the TPP text required: For greater
certainty, if a Party invokes Article 23.2 in an arbitral proceeding initiated under Chapter Eleven
(Investment) or Chapter Twenty-Two (Institutional Provisions and Dispute Settlement), the tribunal
or panel hearing the matter shall find that the exception applies.
The language touted as an exception to defend countries health, environmental, and other
public interest safeguards from TPP challenges is nothing more than a carbon copy of past U.S.
free trade agreement language that reads in to the TPP several World Trade Organization
(WTO) provisions that have already proven ineffective in more than 97 percent of its attempted
uses in the past 20 years to defend policies challenged at the WTO.
o In two decades of WTO rulings, Article XX of the WTOs General Agreement on Tariffs and
Trade (GATT) and Article XIV of the WTOs General Agreement on Trade in Services (GATS
have only been successfully employed to actually defend a challenged measure in one of 44
attempts. Incorporating the GATT/GATS general exception means TPP governments must
clear a list of high hurdles to successfully use the exception to defend a challenged measure.
This ineffective general exception does not even apply in the case of Investor-State challenges.
Indeed, the General Exception explicitly does not apply to the entire Investment chapter of the
TPP. Many other TPP countries demanded that the exception apply to ISDS cases, and leaked drafts
of TPP text included such proposals. The U.S. government strenuously opposed such reforms. The
exception language included in the investment chapter is circular, applying only to countries whose
policies do not conflict with the other rules of the agreement.
SPS CHAPTER: Constraints on Food Safety Provisions
New language on border inspection allows exporters to challenge border inspection procedures:
The TPP contains specific language on border inspections that allow challenges to the U.S. border
inspection system. Border inspections must limited to what is reasonable and necessary and
rationally related to available science, which allows challenges to the manner inspections and
laboratory tests are conducted.
New language allows exporters to challenge specific detentions at the border for food safety
problems: New language that replicates the industry demand for a so-called Rapid Response
Mechanism that requires border inspectors to notify exporters for every food safety check that finds a
7
problem and give the exporter the right to bring a challenge to that port inspection determination. This
is a new right to bring a trade challenge to individual border inspection decisions (including
potentially laboratory or other testing) that second-guesses U.S. inspectors and creates a chilling effect
that would deter rigorous oversight of imported foods.
Stronger language on risk assessment makes it easier to challenge U.S. food safety laws and
allows foreign review of U.S. regulatory process: The TPP SPS risk assessment language is
considerably stronger than the WTO SPS rules and includes deregulatory catch-phrases that are
designed to make it easier to lodge trade disputes against food safety measures. Food safety oversight
would be assessed based not on the extent to which it protected consumers but primarily on the extent
it impacted trade, and the language favors risk management strategies that put trade before food
safety. The U.S. regulatory process already has considerable risk assessment and cost benefit
requirements, this language allows foreign countries to challenge the underlying determination,
science and analysis in the rulemaking process.
Encourages the use of private certifications for food safety instead of government inspection:
The TPP includes new language that encourages the use of private certifications of food safety
assurances either third party certifications or potentially even self-certification that would meet
the same food safety objectives. Third party or self-certified food safety claims are considerably worse
than independent government oversight because there is a financial incentive to certify the food as
safe. Several U.S. food safety outbreaks have occurred at facilities that received private certifications
that attested to their food safety (the companies behind the 2009 peanut butter salmonella outbreak,
2010 egg salmonella outbreak and the 2011 cantaloupe listeria outbreak all received outstanding
ratings from their third-party certifier).
PHARMCEUTICAL PRODUCTS AND MEDICAL DEVICES ANNEX:

Opportunities for Drug Firms to Contest Medicine Purchasing and Pricing
Decisions
The TPP Annex on Transparency and Procedural Fairness for Pharmaceutical Products and
Medical Devices, which sets rules that TPP country health authorities would be required to
follow regarding pharmaceutical and medical device procurement and reimbursement,
expressly names the Centers for Medicare & Medicaid Services (CMS) as covered by its text.
with respect to CMSs role in making Medicare national coverage determinations. Medicares
national coverage determinations include whether Medicare Part A and Part B will pay for an item or
service. Among other things, Part A and B cover drugs administered in a hospital or a physicians
office, and durable medical equipment.
Under the TPP CMS determinations would be subject to a series of procedural rules and
principles, the precise meaning of which are not clear and perhaps not knowable. Pharmaceutical
companies could attempt to exploit the general language of the Annex to mount challenges to
Medicare and health programs in many TPP negotiating countries. The Annex may potentially
constrain future policy reforms, including the ability of the U.S. government to curb rising and
unsustainable drug prices.
8
The Office of the United States Trade Representative (USTR) claims that Medicare today is
fully compliant with the proposed provisions of the TPP. Yet the ambiguous language of the
TPP leaves our domestic healthcare policies vulnerable to attack by drug and device
manufacturers. For example:
o Could companies use the Annex to compel Medicare to cover expensive products without a
corresponding benefit to public health? Medicare reimbursement is limited to products that are
reasonable and necessary for treatment. But the TPP recognize[s] the value of pharmaceutical
products or medical devices through the operation of competitive markets or their objectively
demonstrated therapeutic significance, regardless of whether there are effective, affordable
alternatives.
o The TPP also requires countries to make available a review process for healthcare reimbursement
decisions. Medicare national coverage determinations allow for appeals, but only in a limited set of
circumstances. Might this conditional appeal process be construed as insufficient, if companies
argue the TPP grants them an unconditioned right to review?
o The TPP mandates that parties provide opportunities for applicants to comment on reimbursement
considerations at relevant points in the decision-making process. Though Medicare national
coverage determinations allow for comments in certain stages of the process, these determinations
may be vulnerable to legal challenge depending on the construction of relevant points.
In addition to its application to Medicare Part A and B, the Annex would apply to any future
efforts related to national coverage determinations by the CMS, including potential Medicare
Part D reforms. In response to soaring drug coasts, advocates have increasingly called on the
government to enable the Secretary of Health and Human Services to negotiate the price of
prescription drugs on behalf of Medicare beneficiaries. Vital to this reform would be the establishment
of a national formulary, which would provide the government with substantial leverage to obtain
discounts. The development of such a national formulary would be subject to the requirements of the
TPP. These procedural requirements would pose significant administrative costs, enshrine greater
pharmaceutical company influence in government reimbursement decision-making and reduce the
capability of the government to negotiate lower prices.
The Annex could bolster case of a pharmaceutical company suing the U.S. under the TPPs
ISDS Regime. A foreign pharmaceutical company that has launched an investor-state suit against a
government for a reimbursement decision could use the Annex to demonstrate the basis for
establishing legitimate expectations for certain treatment that a government decision has frustrated.
INTELLECTUAL PROPERTY PATENT PROVISIONS: TPP Rolls

Back May 10th Agreement Reforms, Undermines Access to Medicines in
Developing Countries
The TPP does not conform to the May 10 access to medicine reform standards, and it will
harm access to medicines in developing countries. TPP provisions require patent term
extensions and marketing exclusivity for new uses and forms of old drugs that clearly exceed
the bounds of May 10 and will contribute to preventable suffering and death. [On May 10,
9
2007, Democratic leaders in the U.S. House of Representatives brokered a deal with the George
W. Bush Administration designed in part to reduce the negative consequences of U.S. trade
agreements for global access to medicines. The May 10 Agreement placed limits on the new
monopoly powers that would be granted to pharmaceutical companies in trade agreements,
including those with Peru and Panama. This would facilitate the continued generic competition on
which many people depend for access to affordable medicine.]
The most controversial provision concerns biotech drugs, or biologics medical products derived
from living organisms. While TPP countries refused to agree to an automatic monopoly term
longer than five years, nevertheless USTR insisted on text that will allow the U.S. government to
pressure and pull countries along to a longer period, toward eight or even more years of protection.
The eight-year position is dangerous, will likely cost lives, and contravenes the May 10
Agreement.
Analysis: TPP Final Text vs. May 10: U.S. trade policy under May 10 made hard patent
linkage1 and patent term extensions optional for pharmaceuticals and provided important
limitations on data exclusivity rules for developing countries. There were no transition periods by
which developing countries were expected to adopt more pro-monopolistic rules.
o Exclusivity: Marketing and data exclusivity rules delay generic drug registration for a specified
period of time by limiting the ability of generics manufacturers and regulatory authorities to
make use of an originator companys data.
May 10th standard: Exclusivity normally runs for a five-year concurrent period, meaning
that the clock runs on exclusivity from the date of first marketing in the United States or
agreement territory. This expedites generic entry.
TPP rule: Exclusivity runs for a minimum five years. Countries must choose between
offering an extra three years exclusivity for new uses, forms and methods of administering
products, or five years exclusivity for new combination products. Only Peru may run the
exclusivity clock by the concurrent period measurement. Other countries must provide at
least five years exclusivity from date of marketing approval in their country, which may be
considerably later than the first marketing approval, including cases that are purely a result
of the pharmaceutical company moving slow to register a product in a developing country.
Biologics exclusivity includes USTR insistence that countries adopt other measures
toward providing a market outcome comparable to (presumably) eight years. A TPP
Commission shall review the biologics exclusivity period, under likely industry pressure to
lengthen it. Malaysia and Brunei will have an access window, allowing them to foreclose
marketing exclusivity if a company waits more than eighteen months to begin product
registration.
o Patent Term Extensions: Patent term adjustments (typically called extensions) significantly
delay market entry of generic medicines and restrict access to affordable medicines. While they
are allocated ostensibly for delays in regulatory review or patent prosecution, variance in
review periods is a normal part of each system, and patent terms are not shortened when review
proceeds more quickly than usual.
Though the U.S.-Peru FTA does not require hard patent linkage per se (regulatory action blocking generic marketing
approval), it does require certain administrative rules to be in place.
10
May 10th standard: Patent extensions are optional. Countries may choose whether or not
to make available patent term extensions for pharmaceuticals.
TPP rule: Patent extensions are required for regulatory review periods or patent
prosecution periods deemed unreasonable (regulatory review) or beyond a period of
years (prosecution periods) five years from application or three years from examination
request.
o Patent Linkage: TPPs soft patent linkage option may be considered similar to May 10
standards.
o Transition Periods, Exemptions: Unlike the May 10 Agreement standard, the TPP would
require developing countries to transition to the same rules that apply to developed countries.
The periods are short and have been provided for only a few rules. Some countries have
negotiated exemptions from one or two TPP rules. But again, the rules are beyond the limits of
May 10, and will apply to the rest of the TPP parties, including developing countries that may
join this aspired living agreement in the future.
o Additional Rules: While the May 10 Agreement did not make express reference to patent
evergreening or other intellectual property rules that can compromise access to medicines,
many health advocates take the content of the U.S.-Peru Trade Promotion Agreement as the
standard. That agreement did not, for example, require the grant of patents for new uses of old
medicines. TPP does.
INVESTMENT CHAPTER: Expanded List of Policies Subject to Attack

in Foreign Tribunals by 9,200 Foreign Firms Newly Empowered to Use
ISDS Against the U.S.
Contrary to administration claims that the TPPs investment chapter would somehow limit the
uses and abuses of the controversial investor-state dispute settlement (ISDS) regime, much of
the text replicates, often word-for-word, the most provocative terms found in past U.S. ISDSenforced agreements. TPP would expand the controversial ISDS regime, elevating individual foreign
corporations to equal status with the 12 sovereign governments signing the deal.
Contrary to Fast Track negotiating objectives, the TPP would grant foreign firm greater rights
that domestic firms enjoy under U.S. law and in U.S. courts. One class of interests foreign firms
could privately enforce this public treaty by skirting domestic laws and courts to challenge U.S.
federal, state and local decisions and policies on grounds not available in U.S. law and do so before
extrajudicial tribunals authorized to order payment of unlimited sums of taxpayer dollars.
TPP would expand U.S. ISDS liability by widening the scope of domestic policies and
government actions that could be challenged. For the first time in any U.S. free trade agreement:
o Financial regulations could be challenged as violating investors expectations of how they
should be treated. TPP terms extend the minimum standard of treatment obligation to the TPP
Financial Services chapters terms. The safeguard that USTR claims would protect such policies
repeats an ambiguously written WTO provision that has not been accorded significant deference in
the past.
11
o Pharmaceutical firms could use TPP to demand cash compensation for claimed violations of
World Trade Organization rules on creation, limitation or revocation of intellectual
property rights. Currently, WTO rules are not privately enforceable by investors.
With Japanese, Australian and other firms newly empowered to launch ISDS attacks against
the United States, the TPP would double U.S. ISDS exposure. More than 1,000 additional
corporations in TPP nations, which own more than 9,200 subsidiaries here, could newly launch
ISDS cases against the U.S. government. About 1,300 foreign firms with about 9,500 U.S.
subsidiaries are so empowered under ALL existing U.S. investor-state-enforced pacts. Most of these
are with developing nations with few investors here. That is why until the TPP the United States has
managed largely to dodge ISDS attacks to date.) The TPP would subject U.S. policies and taxpayers
to an unprecedented increase in ISDS liability at a time when the types of policies being attacked and
the number of ISDS case are surging. Just 50 known ISDS cases were launched in the regimes first
three decades combined while about 50 claims were launched in each of the last four years.
U.S. negotiators succeeded in pressuring other TPP nations to empower foreign investors to
bring certain sensitive contract disputes with TPP signatory governments to ISDS tribunals,
instead of resolving such matters in domestic courts. This includes disputes about natural resource
concessions on federal lands, government procurement projects for construction of infrastructure
projects and contracts relating to the operation of utilities.
TPP ISDS tribunals would not meet standards of transparency, consistency or due process
common to TPP countries domestic legal systems or provide fair, independent or balanced
venues for resolving disputes. (Section B) Contrary to claims of reforms:
o
TPP tribunals would still be staffed by three private sector attorneys allowed to rotate
between acting as judges and as advocates for investors launching cases. Such dual roles
would be deemed unethical in most legal systems. The text does not include new conflict of
interest rules, despite concern about the bias inherent in the ISDS system in which ISDS
tribunalists have a structural incentive to concoct fanciful interpretations of foreign investors
rights and order compensation to increase the number of investors interested in launching new
cases and enhance the likelihood of being selected for future tribunals.
o The TPP text has no requirement for tribunalists to be independent or impartial. Rather, the
text relies on weak impartiality rules set by the arbitration venues themselves.
o There is no system of outside appeal on the merits of a decision. Nor is an appellate body
established within TPP to constrain the enormous discretion on the merits and amounts of
compensation. The text retains full discretion for the tribunal to determine how much a
government must pay the firm in taxpayer funds. This can include claims for the expected future
profits the tribunal surmises would have earned in the absence of the public policy under attack.
ISDS tribunals have ordered more than $3.5 billion in compensation under existing U.S. pacts
alone for toxic bans, land-use policies, financial stability measures, forestry rules, water services,
economic development policies, mining restrictions and more. More than $34 billion remain in
pending claims under U.S. pacts.
o Even when governments win, under TPP rules they can be ordered to pay for the tribunals
costs and legal fees, which average $8 million per case.
TPP does not include the promised reforms of ISDS terms underlying egregious past rulings.
o
The TPP retains the Minimum Standard of Treatment and Indirect Expropriation
language from past U.S. pacts that grants foreign investors rights to not have expectations
12
frustrated by a change in government policy. Under the TPP, it does not matter if the changed
policy came in response to a new financial crisis or health discovery or environmental catastrophe,
or if it applies to domestic and foreign firms alike.
o There are no new safeguards that limit ISDS tribunals discretion to issue ever-expanding
interpretations of governments obligations to investors and order compensation on that
basis. The text reveals virtually identical limiting Annexes and terms that were included in U.S.
pacts since the 2005 Central America Free Trade Agreement (CAFTA) that have failed to rein in
ISDS tribunals. CAFTA tribunals have simply ignored the safeguard provisions that are
replicated in the TPP and as with past pacts, in the TPP such tribunal conduct is not subject to
appeal.
o The TPP includes an overreaching definition of investment that would extend the
coverage of the TPPs expansive substantive investor rights far beyond real property,
permitting ISDS attacks over government actions and policies related to financial
instruments, intellectual property, regulatory permits and more. Proposals to narrow the
definition of investment, and thus the scope of policies subject to challenge, that were included
in an earlier version of the text that leaked have been eliminated.
o The lack of robust denial of benefits provisions would allow firms from non-TPP countries
and firms with no real investments to exploit the extraordinary privileges the TPP would
establish for foreign investors. This includes firms from non-TPP countries that have
incorporated in a TPP signatory country. Thus, for instance, one of the many Chinese state-owned
corporations in Vietnam and Malaysia (that also have U.S. investments), could sue the U.S.
government under this text. Language limiting investors to those that have substantial business
activities is not defined, and tribunals have been willing to consider very minimal investments in
host states as conferring nationality for the sake of gaining treaty protections.
o The text also replicates the same ineffective boilerplate health and environmental
exceptions to some provisions that were in past pacts that were rejected in many cases.
The final text actually eliminates safeguard proposals included in a 2012 leaked version.
INTELLECTUAL PROPERTY COPYRIGHT PROVISIONS:

Undermines Internet Freedom, Privacy By Tipping Balance Away from
Users and Public Interest
Text threatens to lock United States into its current broken copyright rules that undermine
access to knowledge, creativity, and autonomy over digital devices and content, and the TPP will
export these rules around the world.
TPP copyright provisions will create even more legal uncertainty over the right of anyone to
tinker with their devices that contain software or digital content.
Communities that will be most adversely affected: students, teachers, librarians, archivists,
researchers, hobbyists, students, journalists and whistleblowers.
Fair use is left out of the TPP: Instead, there are weak provisions on upholding the public interest.
There is no binding requirement that signatory countries enact necessary safety valves to copyright's
13
restrictions. This further tips the balance away from public interest concerns and towards the interests
of rightsholders, undermining general rights to access knowledge and participate in and comment on
existing cultural works.
Expansion of excessive copyright terms: The TPP extends copyright terms for six of the 12
negotiating countries by another 20 years. This comes as a huge cost for public access to culture,
while there has been no empirical evidence that this incentivizes the creation of creative works. This
eats away at the public domain, which is critical as a cultural commons from which people can adapt
and build upon existing works. This would exacerbate the orphan works problem, where works whose
authors has deceased or have gone missing become difficult or nearly impossible to find or access.
o Bans tinkering with software and digital devices: Digital rights management (DRM), also known as
technological protection measures, is encryption that comes on an increasing number of digital
devices and content. DRM is designed to restrict their owner from tampering with or changing the
underlying product. The TPP prohibits the circumvention of DRM and criminalizes those who share
the knowledge or tools to do so. Such provisions impact people's ability to tinker with or repair their
own phones, video game counsels, computers, and increasingly on everyday machines like kitchen
appliances and cars. Similar prohibitions against the removal of rights management information are
also enforced, making life more difficult for those who quote, reference or sample existing works.
Heavy-Handed Criminal Enforcement and Civil Damages: Countries will be compelled to enact or
maintain high penalties and damages that are grossly disproportionate to the actual loss to the
rightsholders. It also empowers law enforcement to seize or destroy materials or implements used in
the alleged infringing activity. Excessive penalties lead to a chilling effect on innovators and everyday
people who wish to try and access or use existing copyrighted works. This could lead to a family's
home computer becoming seized simply because of its use in sharing files online, or for ripping BluRay movies to a media center.
o Dangerously Vague, Severe Punishment Over Trade Secrets Revelations: Provisions criminalize
anyone who gains access to or discloses a trade secret held in a computer system. There are no
exceptions for cases where the disclosed information may serve the public interest. This could be used
to criminalize investigative journalists or whistleblowers who reveal corporate wrongdoing through
any online or digital means. Such provisions echo the draconian Computer Fraud and Abuse Act law
in the U.S.
Undermine Online Privacy and Help Trade Mark Owners to Seize Domains: The U.S. has
repeatedly committed to an open, multi-stakeholder model of Internet governance for domain name
policy; yet the TPP undermines this by requiring countries to provide databases of contact information
of domain name registrants, and to adopt an extrajudicial system for resolving disputes over domain
names that privileges trademark owners over users. This means owners of websites would be unable
to shield themselves from identity thieves, scammers, harassers, and copyright and trademark trolls. It
also overrides the bottom-up processes that TPP countries have evolved to manage their own
processes for resolving domain name disputes.
o Further Enforce Rules That Enable Censorship by Copyright Takedown: The United States
already has a system for dealing with infringement allegations of live online contentthe copyright
holder sends a notice to the website or platform, and the service must remove it immediately and
enable the user to contest the takedown. The burden of proof is on the user to show that their use of
the work is not infringing. Provisions requiring ISPs to take measures to combat infringement may
14
compel increasing use of algorithms or bots to scan works for its inclusion of copyrighted content,
where even non-infringing uses of works (such as when it is a fair use) are taken down from the
Internet. Overall, it incentivizes web platforms to take down content in order to avoid liability, despite
legality of the contested content.
STATE OWNED ENTERPRISES TERMS: Rules Wont Reverse Rise of

SOEs and their Undermining of U.S. Domestic Production and
Employment
The negative impact of state-owned enterprises and state controlled and supported entities on
domestic production and employment in the U.S. has increased dramatically over the years. While
Chinas SOEs have had an enormous negative effect on the U.S., other countries including TPP
participants Vietnam, Malaysia and Singapore maintain and support vast SOEs which control
significant portions of their economies. Indeed, Vietnam continues to be considered as a non-market
economy under the terms of their WTO accession.
Other countries have taken a cue from China and these other countries to actually increase the power
and reach of their SOEs not only in their own markets, but in global commerce. The effect has been
devastating in industries ranging from steel and other metals, to telecommunications, chemicals and
many others. The TPP has been touted as the first agreement with a chapter addressing the activities of
SOEs and proponents have argued that we need to write the rules so China doesnt have the
opportunity to set the standards. Unfortunately, the standards created in the TPP text will do little to
nothing to reverse the rise of SOEs and their role in undermining U.S. domestic production and
employment.
The definitions of what a state-owned entity are not broad enough and fail to include all commercial
entities that do, or potentially could, operate on behalf of the state. The text provides a definitional
structure that leaves substantial flexibility for the state to exert control or influence over its entities
while evading coverage of the TPP and harming U.S. companies and their workers.
The TPP precludes action against any existing support or preferential arrangement benefitting an SOE
that was provided prior to the entry into force of the Agreement. This provides a safe harbor for all
the existing benefits that SOEs have received as well as those that might be provided over the
potentially lengthy period of time before the agreement enters into force, for example, a 40-year no
interest loan.
The TPP fails to cover sub-federal, state-owned enterprises and only calls for a possible review of this
issue after a several year period. But if China is to join, the omission of sub-central entities is critical.
As The Economist magazine noted last year, while the number of SOEs in China at the federal level
has been reduced over the years, there are still 155,000 enterprises owned by central and local
governments. The failure to cover sub-federal SOEs in the current TPP countries, as well as a TPP
acting as template for future countries, including China, via the docking clause, is a massive loophole
that will have potentially devastating consequences for domestic production and employment in the
U.S. The lack of coverage of foreign sub-federal entities is a critical flaw with no expectation of future
coverage.
15
The TPP fails to recognize the pervasive and perverse impact of SOEs in foreign countries. The text
requires proof of a direct effect which, in many cases, is difficult to prove because of the lack of
transparency (which is not sufficiently addressed in the so-called transparency clause) and the
reluctance of firms to question activities of SOEs or those entities operating with state support because
of concern about threats of market consequences and retaliation.
The adverse effects provision in the TPP requires, in part, a showing of significant harm which fails
to recognize the often corrosive, persistent effect of the operations of SOEs.
The adverse effects provision requires a showing of harm, under normal circumstances, of at least one
year. This ignores the fact that harm is often the result of individual, but repeated sales in a market
such as for steel and other commodities.
In particular, the provisions seem ill suited to adequately protect small manufacturers and ensure they
can remain in business during the time to takes to gather evidence sufficient to demonstrate a harm,
pursue a case, and secure relief.
Finally, we are not confident that the SOE definition and chapter is carefully crafted to ensure the
integrity of important public services including entities such as the U.S. Postal Service, Amtrak, and
the Tennessee Valley Authority. Public services are not commercial enterprises and should not be
treated as such.
VARIOUS TPP CHAPTERS: How Tobacco Is Treated
ISDS Carve Out - Right to elect for exemption: Exceptions chapter Article 29.5 gives Parties the
right to deny the benefits of the investor-state dispute settlement mechanism with respect to claims
against tobacco control measures. The definition of tobacco control measures is robust, and includes
alternative nicotine delivery devices (ANDs, often referred to as e-cigarettes). The language explicitly
exempts trade in tobacco leaf from the exemption. This falls well short of the full exemption for
tobacco measures from the entire agreement proposed by Malaysia. However, it is a huge step forward
for tobacco control from previous TIAs, and is strong enough to invoke strong opposition from protobacco industry politicians here in the U.S. It is the result of a nearly 5-year effort by public health
groups in nearly all TPP countries.
Caveat to Carve Out: Aside from its application only to ISDS, the biggest weakness of the
exemption is its status as an election for individual Parties. This leaves the door open to back-door
pressure by host governments, the tobacco industry and chambers of commerce to allow ISDS cases
to proceed. Note that state-to-state disputes are not limited by this exemption.
Tobacco Tariffs Treated Like Any Other Product: Tobacco is treated like any other product in
terms of tariff reduction. For the most part, this means that tobacco tariffs are reduced to zero, which
produces a windfall of tobacco profitsunless there is a later compensating increase in domestic
excise taxes. This explicit promotion of tobacco exports appears to violate the Doggett Amendment, a
congressional limit on authority of U.S. agencies to promote tobacco sales.
16
Tobacco Still Treated Like Other Products in Rest of TPP. This signals that governments are still
not recognizing that tobacco is unique in international trade (we want less, not more, and these same
governments have agreed to this in the FCTC and other international instruments, such as the SDGs
and the NCD summit). The failure to approve the full exemption will have consequences for tobacco
control. For example, the chapter on regulatory coherence requires Parties to set up mechanisms for
interested persons to provide input into regulatory oversight. This creates a direct conflict of law
with FCTC Article 5.3, which requires Parties (11 of whom are also TPP Parties) to limit government
interaction with the tobacco industry.
17
Secret TPP Investment Chapter Unveiled: Its Worse than We Thought

Analysis of Specific TPP Investment Provisions and Their Threats to the Public Interest:
Scope of ISDS Challenges Expanded, Promised Procedural Reforms Absent
After nearly six years of Trans-Pacific Partnership (TPP) negotiations under conditions of extreme
secrecy, the Obama administration has only now released the text after it has been finalized and it is
too late to make any needed changes. The final TPP investment chapter provides stark warnings about
the dangers of trade negotiations occurring without press, public or policymaker oversight. The TPP
would elevate individual foreign corporations to equal status with the 12 sovereign governments
signing the deal text. It would empower foreign firms to privately enforce new foreign investor rights
set forth in the pact by directly suing signatory governments in extrajudicial investor-state dispute
settlement (ISDS) tribunals over domestic policies that have withstood domestic court review and that
apply equally to domestic and foreign firms. Before tribunals comprised of three private sector
attorneys, foreign firms and the foreign subsidiaries of U.S. firms could demand U.S. taxpayer
compensation for domestic financial, health, environmental, land use and other policies and
government actions they claim undermine their new TPP privileges, such as the right to a regulatory
framework that conforms to the expectations they had when they established their investment.
Contrary to administration claims that the TPPs investment chapter would somehow limit
the uses and abuses of the controversial investor-state dispute settlement regime, much of the
text replicates, often word-for-word, the most provocative terms found in past U.S. ISDSenforced agreements. Indeed, many fixes and safeguards that were included in a 2012 leaked
version of the draft TPP Investment Chapter text have been eliminated.
Contrary to Fast Track negotiating objectives, the TPP would grant foreign firms greater
rights that domestic firms enjoy under U.S. law and in U.S. courts. One class of interests
foreign firms could skirt U.S. domestic laws and courts to challenge U.S. federal, state and
local decisions and policies on grounds not available in U.S. law and do so before extrajudicial
tribunals authorized to order payment of unlimited sums of taxpayer dollars. Such compensation
orders could include the expected future profits a tribunal surmises that an investor would have
earned in the absence of the public policy it is attacking.
The TPP would expand U.S. ISDS liability by widening the scope of domestic policies and
government actions that could be challenged. For the first time in any U.S. free trade pact:
o The provision used in most successful investor compensation demands would be extended
to challenges of financial regulatory policies. The TPP would extend the minimum standard
of treatment obligation to the TPP Financial Services Chapters terms, allowing financial
firms to challenge policies as violating investors expectations of how they should be treated.
The safeguard that the U.S. Trade Representative (USTR) claims would protect such policies
repeats an ambiguously written World Trade Organization (WTO) provision that has not been
accorded significant deference in the past.
o Pharmaceutical firms could use the TPP to demand cash compensation for claimed
violations of WTO rules on creation, limitation or revocation of intellectual property
rights. Currently, WTO rules are not privately enforceable by investors.
o With Japanese, Australian and other firms newly empowered to launch ISDS attacks
against the United States, the TPP would double U.S. ISDS exposure. More than 1,000
additional corporations in TPP nations, which own more than 9,200 subsidiaries here,
could newly launch ISDS cases against the U.S. government. About 1,300 foreign firms
with about 9,500 U.S. subsidiaries are so empowered under ALL existing U.S. investor-stateenforced pacts. Most of these are with developing nations with few investors here. (That is why
until the TPP the United States has managed largely to dodge ISDS attacks to date.) The TPP
would subject U.S. policies and taxpayers to an unprecedented increase in ISDS liability at a
time when the types of policies being attacked and the number of ISDS case are surging. Just
50 known ISDS cases were launched in the regimes first three decades combined while about
50 claims were launched in each of the last four years.
o The TPP also would newly empower more than 5,000 U.S. corporations to launch ISDS
cases against other signatory governments on behalf of their more than 19,000
subsidiaries in those countries. (These are firms not already directly covered by an ISDSenforced pact between the United States and other TPP governments.)
U.S. negotiators succeeded in pressuring other TPP nations to empower foreign investors to
bring certain sensitive contract disputes with TPP signatory governments to ISDS tribunals,
instead of resolving such matters in domestic courts. This includes disputes with the federal
government about natural resource concessions, government procurement projects for construction
of infrastructure projects and contracts relating to the operation of utilities.
TPP ISDS tribunals would not meet standards of transparency, consistency or due process
common to TPP countries domestic legal systems or provide fair, independent or balanced
venues for resolving disputes. (Section B) Contrary to claims that the process was reformed:
o TPP tribunals would still be staffed by three private sector attorneys that would be
allowed to rotate between acting as judges and as advocates for investors launching
cases. Such dual roles would be deemed unethical in most legal systems.
o The TPP text has no requirement for tribunalists to be independent or impartial. Rather,
the text relies on the existing, weak impartiality rules set by the arbitration venues themselves.
o The text does not include new conflict of interest rules for tribunalists. TPP negotiators
punted a so-called Code of Conduct for ISDS arbitrators to a side agreement to be created
and put in place by the TPP countries before the pact goes into effect (Article 9.21.6), which at
the soonest would be two years after it is signed. Whether such rules will be effective with
respect to tribunalists direct conflicts of interest is an open question. It seems improbable that
Congress and the public will get to evaluate the rules and how enforceable they will be before
votes to approve the pact. However, even if the Code of Conduct were to stop the outrageous
practice of lawyers with direct financial interests in the companies and issues involved being
allowed to serve as judges, the TPP text does not address the bias inherent in the ISDS
system and underlying the business model of lawyers engaged in this field: ISDS tribunalists
2
have a structural incentive to concoct fanciful interpretations of foreign investors rights and
order compensation to increase the number of investors interested in launching new cases and
enhance the likelihood of being selected for future tribunals.
o There is no system of outside appeal on the merits of a decision. Nor is an appellate body
established within the TPP to constrain the enormous discretion on the merits and
amounts of compensation. The text retains full discretion for the tribunal to determine how
much a government must pay the firm in taxpayer funds. This can include claims for the
expected future profits the tribunal surmises would have earned in the absence of the public
policy under attack. ISDS tribunals have ordered more than $3.5 billion in compensation under
existing U.S. pacts alone for toxics bans, land-use policies, financial stability measures, forestry
rules, water services, economic development policies, mining restrictions and more. More than
$34 billion remain in pending claims under U.S. pacts.
o Even when governments win, under TPP rules they can be ordered to pay for the
tribunals costs and legal fees, which average $8 million per case.
o The provisions on expedited dismissal of frivolous cases replicate the language included
in U.S. pacts since the George W. Bush administration with respect to the speed at which
such claims must be heard and tribunals authority to order claimants to pay costs if a
case is dismissed. The only new provision makes explicit a factor (that a claim is manifestly
without legal merit) that is inherent in the underlying standard for expedited dismissal that is
included in past U.S. pacts and the TPP: that a claim submitted is not a claim for which an
award in favour of the claimant may be made
TPP does not include the promised reforms of the substantive foreign investor rights
underlying egregious past rulings.
o The TPP retains the Minimum Standard of Treatment and "Indirect Expropriation
language from past U.S. pacts that grants foreign investors rights to not have
expectations frustrated by a change in government policy. Under the TPP, it does not matter if
the changed policy came in response to a new financial crisis or health discovery or
environmental catastrophe, or if it applies to domestic and foreign firms alike.
o There are no new safeguards that limit ISDS tribunals discretion to issue ever-expanding
interpretations of governments obligations to investors and order compensation on that
basis. The text reveals virtually identical limiting annexes and terms that were included in
U.S. pacts since the 2005 Central America Free Trade Agreement (CAFTA) that have failed to
rein in ISDS tribunals. CAFTA tribunals have simply ignored these provisions now replicated
in the TPP. As with past pacts, in the TPP such tribunal conduct is not subject to appeal.
o The TPP includes an overreaching definition of investment that would extend the
coverage of the TPPs expansive substantive investor rights far beyond real property,
instruments, intellectual property, regulatory permits and more. Proposals to narrow the
definition of investment, and thus the scope of policies subject to challenge, that were
included in an earlier version of the text that leaked have been eliminated.
3
o The lack of robust denial of benefits provisions would allow firms from non-TPP
countries and firms with no real investments to exploit the extraordinary TPP ISDS
privileges. This includes firms from non-TPP countries that have been incorporated in a TPP
signatory country. Thus, for instance, one of the many Chinese state-owned corporations in
Vietnam and Malaysia (that also have U.S. investments), could sue the U.S. government
under this text. Language limiting investors to those that have substantial business activities
is not defined, and tribunals have been willing to consider very minimal investments in host
states as conferring nationality for the sake of gaining treaty protections.
o Proposals to extend even the TPPs weak general exceptions for environmental and health
policies to the Investment Chapter were rejected. Instead of real safeguards to stop attacks
on countries environmental, health and other regulatory objectives, the TPP text reveals that
the same self-cancelling provision included in past U.S. pacts is replicated, although with more
types of policies listed. The construct of the provision, which limits the rule of construction to
only environmental and other policies that already are consistent with the agreement makes the
measure meaningless a safeguard is only needed to protect policies that would otherwise
violate the agreements rules. The relevant provision (Article 9.15) reads Nothing in this
Chapter shall be construed to prevent a Party from adopting, maintaining or enforcing any
measure otherwise consistent with this Chapter that it considers appropriate to ensure that
investment activity in its territory is undertaken in a manner sensitive to environmental, health
or other regulatory objectives. (emphasis added)
o The final TPP text even eliminates some limited safeguards included in an earlier leaked
version that would have protected certain public interest policies in several TPP countries
from ISDS challenges. These include Canadas policies to promote Canadian culture,
Malaysias government procurement measures (after three years of the TPP going into effect),
and Australias public health policies to ensure access to affordable medicines. With the
deletion of these safeguards in the final TPP text, foreign firms would be free to ask
extrajudicial tribunals to order government compensation for these sensitive policies.
The only meaningful new ISDS safeguard included in the final TPP text is a carve-out for
tobacco-related public health measures that allows countries to elect to remove such policies
from being subject to ISDS challenges, either in advance or once a policy is attacked. Leading
health groups, pro-free-trade former New York City mayor Michael Bloomberg and TPP countries
like Malaysia had pushed for years for even more expansive provisions. These proposals would
have prevented all TPP challenges to tobacco-related health policies, including those brought by
other governments and would have excluded tariff cuts on unprocessed tobacco and tobacco
products that would result in the TPP lowering the price of cigarettes. The final tobacco provision
makes clear that government-to-government challenges to tobacco control measures are allowed as
is tariff elimination on tobacco and tobacco products. But even with these unfortunate limitations,
the final provision is considerably better than past ISDS tobacco control exception proposals. It
provides an example of how a meaningful trade pact safeguard against ISDS attacks could be
structured. That said, because the TPPs Investment Chapter includes a Most Favored Nations
provision, a tobacco company could demand the better investor rights provided in other ISDSenforced investment agreements the regulating country has enacted. (Indeed, the TPP tobacco
language was motivated in part by various subsidiaries of Phillip Morris using the ISDS clauses of
various countries ISDS-enforced agreements to attack Australian and Uruguayan tobacco control
policies.) However, even with those not insignificant caveats, this real carve-out from ISDS
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liability for various forms of health-related tobacco control policies makes apparent how
ineffective and meaningless the chapters language advertised by the White House as protecting
other health policies and the environment actually is (Article 9.15). The tobacco provision also
begs the question why only tobacco control policies are excluded from ISDS attacks, given no
other provision of the Investment Chapter nor the TPPs General Exceptions Chapter provides any
meaningful safeguard or effective exception to stop ISDS attacks on other public health measures,
from toxins bans to patent policies to pollution cleanup requirements. (For more on the TPPs
tobacco-related provisions, see the text analysis from Action on Smoking and Health.)
The TPPs expansion of the ISDS regime would come amid a surge in ISDS cases against public
interest policies. Rather than being an option of last resort, corporations use of ISDS is surging, with
an ever-expanding range of policies and government actions coming under attack, with few claims
involving actual expropriation. While treaties with ISDS provisions have existed since the 1960s, just
50 known cases were launched in the regimes first three decades combined. In contrast, foreign
investors launched at least 50 ISDS claims each year from 2011 through 2013, and another 42 claims
in 2014. The ostensible goal of the ISDS system was to provide foreign investors a means to obtain
compensation if a government expropriated their factory or land and the domestic court system did not
provide for compensation. Over time, both the rules and their interpretation have been dramatically
expanded a problem that the final TPP shows the TPP would exacerbate.
Foreign corporations have used these claims to attack tobacco, climate, financial, mining, medicine,
energy, pollution, water, labor, toxins, development and other non-trade domestic policies. Under U.S.
free trade agreements (FTAs) alone, foreign firms have already pocketed more than $440 million in
taxpayer money via investor-state cases. This includes cases against natural resource policies,
environmental protections, health and safety measures, economic development policies and more.
ISDS tribunals have ordered more than $3.6 billion in compensation to investors under all U.S. FTAs
and Bilateral Investment Treaties (BITs). More than $34 billion remains in pending ISDS claims under
these pacts, nearly all of which relate to environmental, energy, financial regulation, public health, land
use and transportation policies. Even when governments win cases, they are often ordered to pay for a
share of the tribunals costs. Given that the costs just for defending a challenged policy in an ISDS
case total $8 million on average, the mere filing of a case can create a chilling effect on government
policymaking, even if the government expects to win.
Detailed Textual Analysis

This analysis of the released TPP investment text provides a guided tour of this chapters many
provisions that literally replicate the terms of past U.S. agreements. This includes language providing
foreign investors various substantive and procedural rights that extend beyond those provided to
domestic firms under domestic law, and the same safeguard language that has failed to function
effectively in past pacts. This analysis also spotlights differences between earlier leaked versions of
this chapter (from 2012 and 2015) and this final text, including the elimination of various reform and
safeguard proposals found in the earlier versions.
TPP Text Establishes Procedural Rights Available Only to Foreign Investors
Foreign investors alone would be granted access to extrajudicial tribunals staffed by private
sector lawyers who rotate between acting as judges and representing corporations in cases
against governments, posing major conflicts of interest. The text includes provisions that submit
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TPP signatory countries to the jurisdiction of World Bank and United Nations arbitral tribunals.
These tribunals, staffed by private sector attorneys (Article 9.21), are empowered to order
governments to pay investors compensation for what the attorneys deem to be violations of the
TPPs investor rights. The tribunals lack public accountability and standard judicial ethics rules.
The lawyers rotate between roles as judges in disputes brought by investors against governments,
and as advocates for investors against governments, in a manner that would be deemed unethical
for judges in most domestic legal systems.
The TPP text itself has no requirement for tribunalists to be independent or impartial and instead
refers to weak impartiality rules set by the arbitration venues themselves. In the 48-year history of
the World Bank arbitration regime, which is most commonly used, tribunalists have only been
disqualified in four of 41 challenges of exhibited bias or conflicts of interest. Rulings by
tribunalists with specific conflicts of interest have been allowed to stand. A tribunalist ruling that
Argentina had to pay Vivendi Universal $105 million for reversing a failed water privatization
served on the board of a bank that was an investor in Vivendi. The tribunalist did not disclose the
conflict, much less recuse herself, but Argentinas effort to annul the ruling was dismissed. While
the text promises that a Code of Conduct for investment arbitrators will be released before the TPP
goes into effect (Article 9.21.6), the final TPP text does not give the public or Congress any
enforceable reform commitments to compare against domestic best practices.
However, a deeper conflict of interest is inherent in the business model underlying the ISDS
system. The corporation initiating a case chooses the venue and selects one of the judges. The
defending government chooses another, and those two select the third (Article 9.21). Since only
foreign investors can launch cases and also select one of the tribunalists, ISDS tribunalists have a
structural incentive to concoct fanciful interpretations of investors rights and order that they be
compensated for breaches of obligations to which governments never agreed. Lawyers that do so
while serving as a tribunalist in one ISDS case can increase the number of investors interested in
launching new cases and enhance the chance investors will select him or her for future tribunals.
There are no requirements to follow precedent. And, there is no right of appeal on the merits of a
decision. Under the World Bank rules, governments can turn to another tribunal of three private
sector attorneys to seek annulment of a ruling for limited procedural errors. But annulments are
extremely rare. The final TPP text, like past U.S. FTAs, includes no meaningful internal appeals
mechanism for ISDS rulings. And the text provides for no additional rights of appeal to an outside
court or other body. It only includes a reference to the possibility that one day such an appeals
mechanism could be created under other institutional arrangements (Article 9.22.11). But the
final TPP text is even weaker on this front than the investment chapters of existing FTAs, which
state that were an ISDS appellate body to be created one day by the signatory governments, the
governments shall strive to reach an agreement that would have such appellate body review
awards. The TPP text only states that, in the hypothetical scenario that such an appellate
mechanism would someday be created by some unnamed party, the signatory governments shall
consider whether awards should be subject to that appellate mechanism (Article 9.22.11).
Foreign tribunals would be empowered to order governments to pay unlimited cash

compensation out of national treasuries. The text provides tribunals with discretion to determine
the amount of compensation governments must pay investors (Article 9.28.1) and also the
allocation of costs (Article 9.28.3), such as the tribunalists fees. Even when governments win
ISDS cases, they waste scarce budgetary resources defending national policies against these
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corporate attacks, as $8 million in taxpayer funds must be used in an average ISDS case to pay
large hourly fees for the tribunals and legal costs. An earlier leaked version of the TPP Investment
Chapter included a proposed provision to standardize hourly fees for tribunalists at the lower end
of the range of fees currently paid (about $375 per hour, compared to the $700 per hour that some
tribunalists receive). But that restriction on tribunalist fees has been scrapped in the final text.
An overreaching definition of investment has been agreed by all parties that would extend
the coverage of the TPPs expansive substantive investor rights far beyond real property,
instruments, intellectual property, regulatory permits and more. The definition of
investment in the text is: every asset that an investor owns or controls, directly or indirectly, that
has the characteristics of an investment, including such characteristics as the commitment of capital
or other resources, the expectation of gain or profit, or the assumption of risk (Article 9.1). The
text goes on to enumerate as examples: regulatory permits; intellectual property rights; financial
instruments such as stocks and derivatives; construction, management, production, concession,
revenue-sharing, and other similar contracts; and licenses, authorizations, permits, and similar
rights conferred pursuant to domestic law.
The chapters new rights and protections would extend to investments already existing before the
TPP. It would permit compensation claims even over failed attempts to make an investment, with
the low standard to qualify for attempting to invest being concrete action or actions to make an
investment, such as channeling resources or capital in order to set up a business, or applying for a
permit or license. The expansive definitions allow attacks on a vast array of non-discriminatory
domestic policies and government actions from health and land use policies to construction permits
and financial regulation. Proposals in a 2012 leaked version that would have banned ISDS attacks
related to government procurement, subsidies or government grants were struck from the final text.
Under pressure from U.S. negotiators, the final text expands the scope of matters that are
subject to investor-state enforcement to also include government contracts with foreign
investors for natural resource concessions, construction projects and more. The final TPP text
gives foreign investors greater rights than domestic investors with respect to disputes relating to
procurement contracts with the signatory governments, contracts for natural resource concessions
on land controlled by the national government and contracts to operate utilities (Articles 9.1 and
9.18(1)(a)(i)(C)). The U.S. government pushed for the TPP to establish a right for foreign investors
to bring disputes over such contracts to ISDS tribunals rather than domestic courts despite years of
strong opposition from other TPP countries, which apparently caved to the U.S. demands. As a
result, the TPP would allow disputes over such contract matters between foreign firms and
governments to be resolved in ISDS tribunals rather than requiring foreign firms to use the same
domestic laws and courts to which domestic firms could bring such disputes.
Specifically, ISDS enforcement would be extended to cover written agreement[s]... between an
authority at the central level of government of a Party and a covered investment or an investor of
another Party that grants rights to the covered investment or investor: (a) with respect to natural
resources that a national authority controls, such as oil, natural gas, rare earth minerals, timber,
gold, iron ore and other similar resources, including for their exploration, extraction, refining,
transportation, distribution, or sale; (b) to supply services on behalf of the Party for consumption
by the general public for: power generation or distribution, water treatment or distribution,
telecommunications or other similar services supplied on behalf of the Party for consumption by
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the general public; or (c) to undertake infrastructure projects, such as the construction of roads,
bridges, canals, dams, or pipelines
An overreaching definition of investor and lack of robust denial of benefits provisions

would allow firms from non-TPP countries and firms with no real investments to exploit the
extraordinary privileges the TPP would establish for foreign investors. The text includes an
overreaching definition of investor as a person or legal entity that makes an investment as
defined in the pact (Article 9.1). This includes firms from non-TPP countries that have
incorporated in a TPP signatory country. Thus, for instance, one of the many Chinese stateowned corporations in Vietnam and Malaysia, TPP countries, could sue the U.S. government in a
foreign tribunal to demand compensation under this text. Additionally, the texts broad definition
of an investor could allow firms that have made no real investment in a country to drag
governments through costly foreign tribunal proceedings. Existing U.S. trade deals include terms
whereby an investor that is not native to a nation in the pact can be denied the benefits of the deal.
The ostensible goal is to discourage free riding and treaty shopping by multinational firms. To
counter abusive nationality planning, the pacts state that the benefits of the deal can be denied to
investors if they are owned or controlled by investors outside of the trade pact signatory countries
and they also have no substantial business activities in the claimed home nation (or in any
signatory country beyond the host country). However, such denial of benefits terms are not
particularly robust, since even having a staff person or two and a minor paper trail in the claimed
home country can pass the substantial business activities threshold. These low thresholds are
replicated in the TPP text, allowing Chinese or German investors (for instance) to channel
investments through TPP nations in order to obtain the extraordinary TPP foreign investor
protections and access the private enforcement regime (Article 9.14).
The TPP text does include one new provision aimed at limiting who can launch ISDS cases.
This provision is intended to prevent an individual investor from launching an ISDS claim
against their own home country. In existing ISDS cases, individuals have launched such claims
by setting up business activities in another country covered by an ISDS-enforced agreement and
then acquiring investments back in their home country as a foreign investor. The TPP language
states that if an investor is a natural person, who is a permanent resident of a Party, and a national
of another Party, that natural person may not submit a claim to arbitration against that latter Party
(Article 9.1). But this provision only applies to natural persons. Thus the prohibited individual
could evade this limitation by incorporating a business in another TPP country, use that corporation
to establish an investment back in their home country, and then use the corporations newlyacquired foreign investor status to launch an ISDS claim against their home government.
Claims already decided in domestic courts can be re-litigated in ISDS tribunals for all but
four TPP countries. An annex in the TPP investment text states that if a foreign investor pursues a
case in the domestic courts of Chile, Peru, Mexico or Vietnam over a government measure claimed
as a violation of a foreign investor right, the investor cannot then launch an ISDS case against the
government for that same claim under the TPP (Annex 9-J). It would appear that for all other TPP
countries, foreign investors are welcome to pursue claims before domestic courts and, if they lose,
re-litigate the case before an ISDS tribunal. Indeed, the final TPP investment chapter eliminates a
proposed provision from an earlier leaked version that would have required foreign investors in all
TPP countries to choose between pursuing claims before domestic courts or ISDS tribunals.
The TPP would grant foreign investors procedural rights that are not available to domestic
firms to sue governments outside of national court systems, unconstrained by the rights
and obligations of countries constitutions, laws and domestic court procedures (Section 9-B).
The portion of the text that enumerates the private ISDS enforcement system largely replicates
word-for-word the provisions of past U.S. ISDS agreements. However, foreign investors would be
granted even more time to launch an ISDS case. While existing U.S. FTAs already allow foreign
investors to initiate ISDS cases up to three years after the investor became aware of the alleged
violation of their special foreign investor rights, the TPP text would expand that timeframe by
another six months (Article 9.20.1). This final text also abandons a proposal in the 2012 leaked text
that would have required a foreign investor to pursue domestic legal avenues before launching an
ISDS case. This exhaustion requirement would have obliged investors to pursue domestic
administrative review before launching an investor-state case. Exhaustion of domestic remedies is
a fundamental principle of international law.
What could be the justification for foreign investors to pursue claims against a nation outside of
that nations judicial system? The track record of ISDS cases reveals a clear answer: to try to
obtain greater rights than those provided under national law and through domestic courts. Many of
the TPP countries have strong domestic legal systems. For example, New Zealand, Australia,
Singapore and Canada are all ranked by the World Bank as performing better than the United
States with regard to adherence to rule of law. Yet, in a manner opposed by conservative and
liberal jurists and policymakers alike, the private investor-state enforcement system included in
the TPP text would empower foreign investors and corporations to skirt domestic courts and laws
and sue governments in foreign tribunals, demanding cash compensation from national treasuries
for domestic policies that they claim undermine their new investor rights. This would expand an
alarming two-track system of justice that privileges foreign corporations in myriad ways relative to
governments, domestic businesses and non-governmental organizations.
The recent surge in ISDS cases has intensified opposition from legal scholars. An April 2015 letter
signed by leading legal experts, including Harvard law professor and Obama mentor Laurence Tribe,
strongly criticizes the TPPs proposed inclusion of ISDS, warning: ISDS weakens the rule of law
by removing the procedural protections of the legal system and using a system of adjudication with
limited accountability and review. It is antithetical to the fair, public, and effective legal system that
all Americans expect and deserve. A March 2015 letter signed by 139 U.S. law professors urges
congressional leaders and the administration to protect the rule of law and our nations sovereignty
by ensuring ISDS is not included in the TPP, stating; ISDS threatens domestic sovereignty by
empowering foreign corporations to bypass domestic court systems and privately enforce terms of a
trade agreement. A May 2012 letter signed by former judges, law professors and other prominent
lawyers from TPP nations warns: the foreign investor protections included in some recent Free
Trade Agreements (FTA) and Bilateral Investment Treaties (BIT) and their enforcement through
Investor-State arbitration should not be replicated in the TPP. We base this conclusion on concerns
about how the expansion of this regime threatens to undermine the justice systems in our various
countries and fundamentally shift the balance of power between investors, states and other affected
parties in a manner that undermines fair resolution of legal disputes.
TPP Text Establishes Substantive Rights Available Only to Foreign Investors
The TPP investment text shows that foreign investors would be able to demand compensation
if new policies that apply to domestic and foreign firms alike undermine their expectations
9
of how they should be treated. This includes a right to claim damages for government actions
(such as new environmental, health or financial policies) that reduce the value of a foreign firms
investment (Article 9.7 and Annex 9-B on indirect expropriation) or that go against the expected
level of regulatory scrutiny that an investor might have had when dealing with a previous
government (Article 9.6 on minimum standard of treatment). After a series of alarming ISDS
rulings based on language replicated in the TPP text, annexes were added to U.S. FTAs starting
with the 2005 CAFTA with language aimed at defining what sorts of government action should be
considered an indirect expropriation or a violation of the minimum standard of treatment
guarantee given to foreign investors. However, ISDS tribunals already have ignored these
provisions in cases brought under recent U.S. FTAs that included the so-called safeguards now
being touted with respect to the TPP, and instead have continued to develop their own broad
interpretations of foreign investors rights to rule against governments and order compensation to
investors. The TPP text largely replicates these failed annexes, meaning that ISDS tribunals would
maintain enormous discretion to order a government to pay a foreign investor merely because the
government improved a regulatory policy applying to both domestic and foreign firms. Indeed, the
inclusion of the language from past FTAs on a guaranteed minimum standard of treatment for
foreign investors and the right to compensation for indirect expropriation directly contradicts the
assurances TPP governments have given to legislators and public interest advocates that the pact
would safeguard regulatory sovereignty.
The provision used in most successful investor compensation demands would be extended to
challenges of financial regulatory policies. The most successful (and controversial) basis for
investors challenges of government policies in past agreements is alleged violations of the
guaranteed minimum standard of treatment (MST) for investors or the closely linked fair and
equitable treatment (FET) provision. The TPP would be the first U.S. trade pact to empower
foreign financial firms to use the open-ended MST and FET provisions to challenge domestic
financial regulations before ISDS tribunals. Previous U.S. FTAs have shielded financial regulations
from these most-used and most-abused of foreign investor claims. By newly allowing foreign
banks to use these broad rights to attack financial regulations, the TPP would spell an
unprecedented ISDS threat to U.S. financial stability measures.
The TPP text regarding the MST and FET obligations largely replicates the language found in
previous ISDS agreements on which tribunals have relied to issue some of the most alarming ISDS
rulings to date (Article 9.6). Tribunals have often broadly interpreted these terms, effectively
fabricating new obligations for governments that do not exist in the actual text of ISDS agreements.
Of the 29 known ISDS cases under U.S. trade and investment agreements in which the foreign
investor has won, 76 percent (22) have found MST or FET violations. (In contrast, only seven
have found national treatment violations, five have found expropriation violations and three have
found performance requirement violations. Some cases found violations of multiple rules.)
While some of the FET violations involved denials of justice as that term has long been
understood under customary international law (e.g. lack of due process), some tribunals have found
FET violations for government regulatory actions that simply contradicted what investors argued
were their reasonable expectations. For instance, in an Occidental Exploration and Production
Co. v. Ecuador case under the U.S.-Ecuador BIT, a tribunal ruled that the reasonable expectations
requirement means that there is certainly an obligation not to alter the legal and business
environment in which the investment has been made. In defending itself against an investor-state
challenge that tried to invoke this sweeping interpretation, the U.S. government argued, [I]f States
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were prohibited from regulating in any manner that frustrated expectations or had to compensate
for any diminution in profit they would lose the power to regulate. There is no right to
compensation in U.S. law merely because a government policy changes after the establishment of
an investment in a way that may affect a business operating here.
The TPP includes nothing to forestall these extreme interpretations. Instead, the text merely
replicates an annex contained in recent U.S. FTAs that states that the relevant standard under
customary international law that is intended for the MST provision is one that results from a
general and consistent practice of States that they follow from a sense of legal obligation (Annex
9-A). This circular language has failed to fix the problem. Though this annex was first included in
CAFTA, in two of the first investor-state cases brought under CAFTA Railroad Development
Corporation (RDC) v. Guatemala and TECO Guatemala Holdings v. Guatemala the tribunals
simply ignored the annexs attempt to narrow the definition of minimum standard of treatment
with a requirement that tribunals examine the actual practice of nations. Instead, the RDC and
TECO tribunals both relied on an expansive interpretation of the standard concocted by a previous
ISDS tribunal, which included an obligation to honor investors expectations. On that basis, both
tribunals ruled that Guatemala had violated the expanded obligation, and ordered the government
to pay millions. The TPP fails to remedy this severe flaw, leaving uncertainty and unpredictability
that invites investors to launch more ISDS attacks against public interest policies.
Foreign investors would be allowed to use claims of indirect expropriation to demand

government payments for regulatory costs all firms operating in a country must meet. Under
domestic and international law, governments obligation to compensate for expropriation has
typically applied to the physical taking of real property, such as when a government expropriates a
house to make way for a highway. But the TPP annex on expropriation, as in past U.S. FTAs,
makes clear that foreign investors can launch claims of indirect expropriation when the government
has not actually taken ownership or control of an investment. The final text would provide
investors with a right to demand compensation for indirect expropriation (Article 9.7 and Annex
9-B), which can be and has been interpreted by ISDS tribunals to mean regulations and other
government actions that merely reduce the value of a foreign investment. This definition of indirect
expropriation cannot be justified as reflecting the general practice of states, given that the dominant
practice of nations is to provide for compensation only when the government has actually acquired
an asset or permanently destroyed all of its value, not merely when the value of an asset has been
adversely affected by regulatory measures.
Moreover, the right to compensation for indirect expropriation in the text applies to much wider
categories of property than those to which similar rights apply in U.S. law. To the limited extent
that indirect expropriation compensation is permitted in U.S. law, it has generally been held that
the requirement of compensation for regulatory takings under the Fifth Amendment of the U.S.
Constitution primarily applies to regulations affecting real property (i.e. land). However, the broad
provisions of the TPP investment chapter, like existing FTAs, enable foreign investors to claim
indirect expropriation if government regulations implicate their personal property, intellectual
property rights, financial instruments, government permits, money, minority shareholdings or other
forms of non-real-estate property.
An earlier leaked version of the TPP investment chapter included a proposed provision that
attempted to safeguard public interest regulations from indirect expropriation claims, stating, nondiscriminatory regulatory actions that are designed and applied to achieve legitimate public
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welfare objectives, such as the protection of public health, safety and the environment do not
constitute indirect expropriation. Instead, the final TPP investment chapter, like past U.S. FTAs,
includes a clause containing a loophole that undermines this attempted safeguard. It states that nondiscriminatory health, safety, environmental and other public interest regulations could indeed be
challenged as indirect expropriations in rare circumstances (Annex 9-B). The loophole would
grant ISDS tribunals discretion to determine when such non-discriminatory public interest policies
constitute an indirect expropriation. The final text also eliminated, in favor of terms granting
tribunals ample discretion over the meaning of indirect expropriation, an alternative provision that
would have explicitly restricted indirect expropriation claims to instances when a government
deprivation of the investors property is (a) either severe or for an indefinite period; and (b)
disproportionate to the public purpose.
Foreign corporations could be newly empowered to privately enforce public agreements

concerning intellectual property in ISDS challenges to government policies that ensure access
to affordable medicines. Unlike past U.S. FTAs, the TPP investment text could empower foreign
investors to claim that government policies that ensure access to affordable medicines constitute
TPP-prohibited expropriations of intellectual property rights if deemed to violate the terms of the
WTOs Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement (Article 9.7.5).
WTO rules can only be enforced when one government formally challenges another government
before a WTO tribunal. There is no right in the WTO for a corporation to directly challenge
sovereign governments. But with this new provision in the TPP investment text, individual firms
could be empowered to privately enforce the terms of the WTOs monopoly protections for
pharmaceutical firms, and directly challenge governments for alleged violations of these
protections. In addition, the signatory governments of TRIPS, including TPP governments,
deliberately included ambiguous language in TRIPS to grant flexibility to each government to
interpret the terms in line with domestic priorities. But the TPP investment text could empower the
three private lawyers of ISDS tribunals, which have a clear track record of interpreting vague terms
broadly to favor foreign investors, to impose their binding interpretation of TRIPS intentionally
flexible terms on the very governments that negotiated those terms. This move, which risks making
TRIPS obligations enforceable via ISDS, could restrict governments policy space to ensure access
to affordable medicines.
Domestic policies that apply equally to domestic and foreign firms could be challenged by
foreign investors under the TPP. The TPP text would allow investors to claim that government
actions (such as new environmental, health or financial laws) violate national treatment or most
favored nation rules, ostensibly intended to prohibit discriminatory treatment, even when the laws
are facially neutral and lawmakers did not intend to harm foreign investors (Articles 9.4 and 9.5).
Such claims could be used if a foreign investors own business model resulted in the firm
experiencing a slightly higher burden in complying with a non-discriminatory law. For example, a
governments carbon emission controls could disproportionately impact foreign investors if most
domestic energy firms used less carbon-intensive sources of energy than their foreign-owned
counterparts. While a footnote in the text suggests that differences in treatment of foreign investors
may be allowed on the basis of legitimate public welfare objectives, the ISDS tribunal would
have full discretion to judge whether a governments public welfare objectives are legitimate and
whether the alleged difference in treatment of foreign investors owes to those objectives.
Policies to create domestic jobs, support domestic businesses or foster economic development
would be subject to foreign investors demands for compensation. The TPP investment chapter,
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like past U.S. FTAs, would empower foreign firms to demand compensation from governments for
performance requirements imposed on domestic and foreign firms alike (Article 9.9). Foreign
firms would be able to challenge policies used by many governments to support local job creation
and business growth (for example, by requiring firms to purchase inputs from domestic
businesses). (While Article 9.9.4 allows requirements to employ local workers, this does not extend
to so-called backward linkages, like purchasing locally made inputs.) In a recent ISDS case brought
against Canada under the North American Free Trade Agreement (NAFTA), a tribunal ruled that
Canadas non-discriminatory requirement for oil companies to contribute to research and
development in one of the countrys poorest provinces violated such performance requirement
provisions. The TPP text goes even further than past U.S. FTAs in listing additional performance
requirements that can be challenged.
Most TPP countries have decided to expose decisions regarding the approval of foreign
investments to ISDS challenge. An annex in the text states that a governments decision, done in
accordance with domestic laws, on whether to approve a given foreign investment in its territory
shall not be subject to ISDS enforcement (Annex 9-H). But the annex only applies to four of the 12
TPP countries (Australia, Canada, Mexico and New Zealand). A separate annex (Annex 9-F) also
contains some protections for Chile's foreign investment laws. For the remaining countries, the
TPP text would apparently empower foreign firms to challenge such decisions before ISDS
tribunals. In the United States, for example, the Committee on Foreign Investment in the United
States (CFIUS) reviews planned foreign investments to determine whether they pose threats to
national security. CFIUS has the authority to recommend to the president that investments deemed
as threatening not be authorized. In cases where the president acts on such recommendations, the
TPP text would appear to empower foreign firms to retaliate by asking foreign tribunals to order
taxpayer compensation. While the TPP includes a national security exception clause, the provision
removes a critical footnote included in the last four U.S. FTAs that specified that it was up to a
government, not an ISDS tribunal, to determine when a challenged measure was necessary for the
protection of the nations essential security interests. The TPPs removal of that footnote, which a
bipartisan bloc of members of Congress fought for, means that three lawyers on an ISDS tribunal
not the government of the United States would have the authority to determine what constitutes
the essential security interests of the United States. Under the weakened TPP provision, if the U.S.
president decided not to allow a foreign investment after CFIUS determined it posed a threat to
national security, an ISDS tribunal would be empowered to second-guess the U.S. government with
respect to what constitutes an essential security interest of the United States and order
compensation to the foreign firm with U.S. taxpayers money.
Foreign corporations could demand compensation for capital controls and other macroprudential financial regulations that promote financial stability. Like past U.S. FTAs, the TPP
text requires that governments shall permit all transfers relating to a covered investment to be
made freely and without delay into and out of its territory (Article 9.8). This obligation restricts
the use of capital controls or financial transaction taxes, even as the International Monetary Fund
(IMF), many prominent economists and world leaders have shifted from opposing capital controls
to officially endorsing them as a legitimate policy tool for preventing or mitigating financial crises.
In July 2015, the four Democrats in the House of Representatives with the highest authority on
matters of trade and finance the ranking members of the House Financial Services Committee,
the House Ways and Means Committee and the trade subcommittees of both sent a letter to the
Obama administration to warn against the TPPs threat to capital controls. They concluded, With
13
what we know today about the dangers of volatile, short-term capital movements, we hope the
Administration will avoid showing the world that there are times when those who remember the
past are also bound to relive it, especially when it is likely to come at enormous economic and
human cost. In a December 2014 letter to the administration, Senator Elizabeth Warren (DMass.), member of the Senate Banking Committee, and Sens. Tammy Baldwin (D-Wis.) and
Edward Markey (D-Mass.) urged the administration to not replicate in the TPP terms from past
U.S. FTAs that could limit the ability of the government to use capital controls. In another letter
that same month led by Congresswoman Maxine Waters (D-Calif.), the ranking member of the
House Financial Services Committee, leading House Democrats made clear to the administration
their opposition to the inclusion of such restrictions on capital controls in pending trade deals.
In February of that year, U.S. Federal Reserve economists backed capital controls in a study
finding they can lead to a significant welfare improvement. And in a February 2012 letter signed
by more than 100 prominent economists, including Jagdish Bhagwati of Columbia University,
former IMF officials Olivier Jeanne of Johns Hopkins University and Arvind Subramanian
(formerly of the Peterson Institute for International Economics, now chief economic adviser to the
government of India), demanded that such provisions be excluded from the TPP, stating, The U.S.
governments rigid opposition to capital controls does not reflect the global norm. This followed a
January 2011 letter to the Obama administration signed by more than 250 economists, including
Nobel laureate Joseph Stiglitz, Harvard economics professors Ricardo Hausmann and Dani Rodrik
(formerly at Harvard University, now at the Institute for Advanced Study), and Jos Antonio
Ocampo (a former executive secretary of the UN Economic Commission on Latin America and the
Caribbean, and Colombias former Minister of Finance), noting that past U.S. FTAs and BITs
strictly limit the ability of our trading partners to deploy capital controls. Yet, the final TPP text
would replicate the past U.S. template, defying the post-financial crisis consensus that policy space
for capital controls must be preserved.
Ineffective Exceptions and Limitations
Broad-based concerns about the TPPs ban on the use of capital controls resulted in a new
temporary safeguard provision despite years of U.S. opposition. But the actual provision
ultimately agreed would not adequately protect governments ability to regulate speculative
and destabilizing flows of capital. In contrast to past U.S. FTAs, the final text includes a
temporary safeguard to allow the use of limited types of capital controls, subject to a litany of
conditions, that would otherwise violate the expansive obligations of the Investment Chapters free
transfers provisions (Article 29.3). Unfortunately, the provision largely replicates Article XII of the
WTOs General Agreement on Trade in Services (GATS) Restrictions to Safeguard the Balance
of Payments provision. Both the GATS and TPP language apply to serious balance-of-payments
and external financial difficulties or threat thereof (GATS XII-1).
Thus, the provision would only apply to capital controls enacted for certain reasons (e.g. to remedy
balance of payments crises or exceptional macroeconomic problems), while capital controls used
for other policy objectives (e.g. to prevent destabilizing asset bubbles) would still be subject to
ISDS challenges. In addition, the GATS language refers to the special needs developing countries
may have for such policies. Both the TPP and GATS terms require capital controls to be consistent
with the Articles of Agreement of the International Monetary Fund, avoid unnecessary damage to
the commercial, economic and financial interests of any other Party, not exceed those necessary to
deal with the circumstances and not be used to avoid necessary macroeconomic adjustment. Thus,
14
the safeguard would only apply to those capital controls that an ISDS tribunal not a governments
central bank deemed necessary. Governments, not ISDS tribunals, should have the authority to
decide when capital management measures are needed and how they should be implemented.
And such measures are to be temporary and phased out progressively. Under the TPP provision,
even capital controls used to respond to balance-of-payments and other macroeconomic problems
(rather than to prevent them) could run afoul of the provisions requirement, if they last longer than
18 months. Use beyond this time period is subject to majority approval of the other TPP parties.
This restriction would preclude the use of capital controls for longer-lasting financial crises. The
provision would have failed to safeguard, for example, the capital controls that Malaysia, also a
TPP party, implemented in 1997 in response to the Asian financial crisis, which were phased out
slowly over a decade. Indeed, the overarching requirement that such policies be temporary means
the safeguard does not provide policy space for capital controls of a more permanent nature, such
as those relating to capital inflows that are designed to avoid balance-of-payments and other
macroeconomic problems. For example, the capital management policies of Chile, a TPP party,
involve standing laws of general application that were not implemented in response to a specific
crisis, but to avoid the conditions that could cause one. A separate TPP annex would allow Chile
alone to maintain or enact capital controls that are consistent with its own domestic laws to ensure
financial stability (Annex 9-E). No such protection is available for other TPP nations.
The TPP provision adds two further constraints. First, such measures are subject to ISDS
challenges as indirect expropriations. That is to say that while the safeguard may permit a TPP
country to enact a capital control, it may also be required to compensate a foreign investor if doing
so results in a significant reduction in the value of that investors investment. There is no
comparable obligation to compensate private investors in the GATS. And, in TPP capital controls
shall not apply to payments or transfers relating to foreign direct investment.
The TPP provision on environmental, health and other regulatory objectives is meaningless.
The text includes a provision, largely copied from past U.S. pacts, on Investment and
Environmental, Health and other Regulatory Objectives that provides no meaningful safeguard
against ISDS challenges to public interest policies (Article 9.15:Nothing in this Chapter shall be
construed to prevent a Party from adopting, maintaining or enforcing any measure otherwise
consistent with this Chapter that it considers appropriate to ensure that investment activity in its
territory is undertaken in a manner sensitive to environmental, health or other regulatory
objectives. (emphasis added). The provisions inclusion of self-cancelling language means that a
signatory government may enact public interest protections, so long as doing so does not conflict
with the sweeping rights that the pact gives to foreign investors. But it is precisely when investors
broad rights conflict with environmental, health or other regulatory objectives that a government
needs an agreement to specify that its right to regulate trumps its obligations to foreign investors.
Thus, this provision is meaningless. Indeed, a tribunalist in the S.D. Myers v. Canada NAFTA
ISDS case noted that this provision, also included in NAFTA, was among those referred to by trade
analysts as tautologies or as diplomatic, rather than legal statements. A recent legal review
from Cambridge University Press concluded that this clause falls short in failing to add more than
a nebulous provision that can easily be marginalized.
In an earlier leaked version of the TPP Investment Chapter, one country proposed an additional
paragraph to this text that read: The Parties recognise that it is inappropriate to encourage
investment by relaxing its health, safety or environmental measures. Accordingly, a Party should
15
not waive or otherwise derogate from or offer to waive or otherwise derogate from, such measures
as an encouragement for the establishment, acquisition, expansion, or retention in its territory of an
investment of an investor. This proposed language has been omitted from the final TPP
investment chapter. (And while similar language has been included in the TPPs environment
chapter, the inclusion of such language in past FTAs, such as the U.S.-Peru FTA, has failed to
prevent or discipline rollbacks of environmental protections explicitly enacted to encourage
investment see Sierra Clubs analysis of the final TPP environment chapter for more.)
Finally, while a few TPP countries tried to exempt specific domestic public interest policies from
the broad obligations of the Investment Chapter in the leaked January 2015 version of the text, all
of these exceptions have been eliminated in the final text. As a result, Australias public health
programs, Malaysias procurement measures and Canadas cultural promotion policies would all be
exposed to ISDS challenges under the TPP. And while the text includes a provision to prevent
ISDS challenges to tobacco-related health measures, the deal would allow ISDS attacks on a wide
array of other public health policies, from patent laws that tamp down the rising cost of medicines
to commonsense bans on toxins to requirements for firms to mitigate pollution.
A new article makes a hortatory reference to encouraging corporate social responsibility.

Language included in the final TPP investment chapter is even weaker than the already-hortatory
corporate social responsibility language proposed in an earlier leaked version. While the earlier
language stated that each signatory government should encourage firms to voluntarily
incorporate principles of corporate social responsibility, the approved language in the final text
merely notes that the signatory governments reaffirm the importance of such non-binding
encouragement (Article 9.16).
Foreign investors could not invoke procedural ISDS provisions from other agreements, but
could still try to invoke even broader substantive rights for foreign investors than found in
the TPP. While the most-favored nation treatment provisions of ISDS-enforced pacts are
supposed to simply require governments to treat foreign investors from a pacts signatory countries
no less favorably than investors from other countries, foreign firms have successfully used these
provisions as a loophole to import broader foreign investor privileges from other pacts. Doing so
has allowed foreign firms to launch ISDS cases against governments for allegedly violating
obligations to which the governments never agreed. The TPP text includes a new provision that
appears aimed at partially closing this loophole, indicating that foreign investors cannot use the
most-favored nation treatment obligation to import procedural rights from other pacts (Article
9.5.3). However, the provision would not prevent foreign investors from importing broader
substantive rights from other pacts. For example, the language would appear to allow tribunalists to
grant a foreign investor, upon its request, access to definitions of indirect expropriation and
minimum standard of treatment that are even more expansive and more favorable to investors
than those included in the TPP, posing an even greater threat to public interest policymaking.
The United States, unlike most other TPP countries, has chosen to subject sovereign debt
restructuring to ISDS challenges. An annex in the investment chapter seeks to ensure that
disputes related to sovereign debt and sovereign debt restructuring are not subject to the full range
of investment chapter disciplines (Annex 9-G). But a footnote states that the partial safeguards for
sovereign debt restructuring do not apply to Singapore or the United States. That is, were
Singapore or the United States to negotiate a restructuring of its sovereign debt that applied equally
to domestic and foreign investors, foreign investors alone would be empowered under the TPP to
16
challenge the non-discriminatory restructuring before an ISDS tribunal, claiming violations of any
of the broad substantive foreign investor rights provided by the TPP Investment Chapter.
Despite prior opposition, and in defiance of the Australian governments own Productivity
Commission, Australia has agreed to subject its policies and taxpayer funds to the
jurisdiction of ISDS tribunals under the TPP. In prior leaked versions of the investment chapter,
Australia had included a footnote stating that it would not be bound to ISDS enforcement. That
footnote has been eliminated, meaning that, for the first time, the TPP would expose Australia to
ISDS attacks from U.S. firms the worlds most aggressive users of ISDS. (Australia successfully
resisted U.S. pressure to include ISDS in the existing U.S.-Australia FTA.) This decision by the
Australian government directly contradicts the advice of the governments own pro-free-trade and
pro-TPP Productivity Commission, which warned in a June 2015 report against including ISDS in
Australias trade pacts. The commission concluded that ISDS-enforced obligations in FTAs depart
from national treatment principles by affording substantive appeal rights to foreigners not available
to domestic firms, risk impeding domestic regulatory reform (regulatory chill), include safeguards
and carve-outs of uncertain effect, lack transparency and have inadequate parliamentary scrutiny.
In addition, the commission found that ISDS provisions are not necessary or sufficient to foster
investment flows between developed countries and warned that they could expose the Australian
Government to potentially large unfunded contingent liabilities dependent on decisions by
international arbitration tribunals. With the Australian governments reversal on ISDS in the TPP,
all TPP countries would be subject to the private investor-state corporate enforcement regime. This
would also impose new obligations on Japan, New Zealand, Malaysia, Brunei and Vietnam the
TPP countries that do not have existing U.S. FTAs.
For more information, contact Public Citizens Global Trade Watch lwallach@citizen.org
17

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11/18/2015

TPP: The Dirti...

Get informed Threats Posed by TPP

Public Citizen Factsheets, Reports & Memos

Public Citizen Press Releases & Statements

Members of Congress Speak Out

Civil Society Organizations Speak Out

RULES OF ORIGIN CHAPTER: ROOs, Particularly for Autos, Wont

This new provision establishes a standard that appears to be similar to a deemed

ENVIRONMENT CHAPTER: The TPP Would Increase Risks to Our Air,

New Rights for Fossil Fuel Corporations to Challenge Climate Protections

LABOR CHAPTER: Vietnam, Malaysia Side Agreements a New Low,

EXCEPTIONS CHAPTER: National Security Exception Weakened, No

SPS CHAPTER: Constraints on Food Safety Provisions

PHARMCEUTICAL PRODUCTS AND MEDICAL DEVICES ANNEX:

INTELLECTUAL PROPERTY PATENT PROVISIONS: TPP Rolls

INVESTMENT CHAPTER: Expanded List of Policies Subject to Attack

INTELLECTUAL PROPERTY COPYRIGHT PROVISIONS:

STATE OWNED ENTERPRISES TERMS: Rules Wont Reverse Rise of

VARIOUS TPP CHAPTERS: How Tobacco Is Treated

Secret TPP Investment Chapter Unveiled: Its Worse than We Thought

Detailed Textual Analysis

TPP Text Establishes Procedural Rights Available Only to Foreign Investors

Foreign tribunals would be empowered to order governments to pay unlimited cash

An overreaching definition of investor and lack of robust denial of benefits provisions

TPP Text Establishes Substantive Rights Available Only to Foreign Investors

Foreign investors would be allowed to use claims of indirect expropriation to demand

Foreign corporations could be newly empowered to privately enforce public agreements

Ineffective Exceptions and Limitations

A new article makes a hortatory reference to encouraging corporate social responsibility.

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