Foreword: The Continuing Relevance of the Trans-Pacific Partnership

Abstract

We are delighted to introduce this special issue of the Melbourne Journal of International Law ('MJIL') on the Trans-Pacific Partnership Agreement ('TPP'). The special issue developed from fruitful collaboration between MJIL and Melbourne Law School's Global Economic Law Network ('GELN'), and in particular the symposium hosted by GELN at Melbourne Law School on 19-20 May 2016: The Age of Mega-Regionals: TPP & Regulatory Autonomy in International Economic Law, which was skilfully managed by Mr Christopher Pidgely. The symposium brought together more than 70 participants from around the globe including presenters from academia, non-governmental organisations, industry, the legal profession, and governmental departments in Australia, New Zealand and South Africa. The symposium benefited from a range of funding sources including the Melbourne Law School Major Collaborative Project Fund and the Australian Research Council (Discovery Project DP 130100838 and Linkage Project LP120200028, which involves collaboration with the McCabe Centre for Law and Cancer). Led by Editors Ms Anna Saunders, Ms Kara Connolly and Mr Justin Browne, MJIL issued a call for papers for the TPP special issue in conjunction with the GELN symposium but open to all. The majority of the papers in this special issue were presented at the symposium; all were selected by MJIL through a competitive process and expertly edited by MJIL's Editors and Members. Since we conceived the symposium, and since the core of the articles in this special issue were written, the world has developed in unexpected directions. In particular, the TPP appears to be but one of many casualties of the United States election held on 8 November 2016. Since then, on 21 November 2016, New Zealand became the first country to enact TPP-implementing legislation, which is specified to come into force on the date that the TPP enters into force for New Zealand. (1) Of course, the entry into force of the TPP requires ratification by either all 12 signatories (2) or by 'at least six of the original signatories, which together account for at least 85 per cent of the combined gross domestic product of the original signatories in 2013'. (3) In effect, then, both the United States and Japan must ratify the TPP for it to come into force in the form signed on 4 February 2016. And while Japan continues to pursue ratification, (4) United States President-elect Donald Trump has made clear--both before and since his election--his aversion to globalisation and trade liberalisation in general, and the TPP in particular. (His plans for bilateral as opposed to regional or multilateral trade deals are less clear, as regards both theory and practice). Should Mr Trump proceed with his threatened withdrawal from the TPP upon his inauguration, (5) the TPP in its current form is undeniably dead. However, two alternative futures exist for the TPP. First, at the time of writing, while plans to submit the TPP in the lame-duck session of Congress before Trump's inauguration have been abandoned, (6) key stakeholders still predict that the United States might agree to renegotiate the treaty. (7) Second, even if the United States is out, the other negotiating parties may remain committed to the TPP or something very like it, raising the possibility of a 'TPP-11'. Renegotiation would not be easy, particularly given the heavy influence of United States demands and drafting on the TPP text, which for example bears a strong resemblance to existing United States preferential trade agreements. (8) Moreover, the TPP market absent the United States would be considerably smaller, leading to necessary recalculations of its likely benefits, (9) which were already contentious. (10) On 30 November 2016, the Joint Standing Committee on Treaties ('JSCOT') of the Parliament of the Commonwealth of Australia released its report on the TPP. (11) JSCOT recommended that Australia ratify the TPP, while making certain other recommendations reflecting various concerns with the agreement, such as a recommendation for enhanced transparency in the negotiation of trade agreements by allowing 'security cleared representatives from business and civil society to see the Australian Government positions being put as part of those negotiations'. …