The Trans-Pacific Partnership: New Paradigm or Wolf in Sheep's Clothing?

By Lewis, Meredith Kolsky | Boston College International and Comparative Law Review, Winter 2011 | Go to article overview

The Trans-Pacific Partnership: New Paradigm or Wolf in Sheep's Clothing?


Lewis, Meredith Kolsky, Boston College International and Comparative Law Review


Introduction

The Office of the United States Trade Representative (USTR) has devoted significant resources to negotiating the United States' accession to a trade agreement known as the Trans-Pacific Partnership (TPP). Although these negotiations have captured the attention of U.S. negotiators, and are well-known to the countries already participating in the TPP, the TPP's existence is not otherwise well-known. As of mid- 2009, mentioning the TPP at international legal academic conferences drew mainly blank looks. Correspondingly, there is a dearth of legal scholarship on the TPP.1 Nevertheless, although the TPP has slid beneath the radar until this point, it should not be ignored any longer.

The TPP is a new type of trade agreement. It does not fit into the more common molds of bilateral free trade agreements or plurilateral customs unions. Rather, the TPP represents an unprecedented free trade agreement (FTA) comprising eight or more members, including the United States, and has implications for regionalism-particularly in the Pacific Rim-and the World Trade Organization (WTO), and for the power dynamics between major trading blocs. The TPP has the potential both to harmonize and to fragment. It reflects both a convergence of economies seeking to form a broader alliance, and a divergence from the multilateral trading system. The TPP has the potential to create a new paradigm for trade agreements, to form the basis for a Free Trade Area of the Asia-Pacific (FTAAP), and to provide an alternative power center within Asia-Pacific Economic Cooperation (APEC)2 in ways that are distinct from the models that have been jockeying for favor the past several years.3 Nevertheless, if the TPP is not negotiated properly, these results are unlikely to materialize. At times, the United States has appeared to approach the negotiations as if it were negotiating just another FTA according to the standard U.S. template. This tactic is contrary to the United States' long-term interests, however, as it is likely to result in an agreement that will not be sufficiently attractive to convince other APEC economies to join en masse.

In short, the TPP has the potential to be an exceedingly important agreement. This Article thus seeks to highlight what the TPP is, why it is an agreement to watch, and what negotiating issues will affect whether or not the agreement is truly groundbreaking or merely a repackaged version of the United States' existing FTAs.

I. What Is the TPP?

The TPP is a trade agreement-currently under negotiation-that has its roots in an existing agreement between Brunei, Chile, New Zealand, and Singapore.4 The goal of these original four TPP members was not to form a union based on economic synergies among the current partners, but rather to create a model agreement that could be expanded to include additional members from both sides of the Pacific.5 This is the first non-customs union trade agreement with the avowed purpose-and potential-of transforming into a large, plurilateral free trade agreement.6

The United States is currently negotiating to join an expanded version of the TPP, along with Australia, Peru, and Vietnam.7 An examination of the USTR's website reveals a significant amount of information about the TPP. In fact, the USTR has set up a separate section of its website specifically devoted to this negotiation.8 Although there is a great deal of material on the USTR website, it does not provide a complete picture of the origins and nature of this agreement.9

The USTR website explains that the TPP comprises eight countries-the United States, Australia, New Zealand, Singapore, Chile, Brunei, Peru, and Vietnam-that have recently decided to form a trade agreement.10 The USTR suggests that the Obama administration became interested in forming the TPP after the administration reviewed its trade policy strategy in conjunction with members of Congress.11 The USTR also suggests that the TPP is geared toward obtaining market access for U. …

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