Trans-Pacific Partnership

The Trans-Pacific Partnership (TPP) is a multilateral trade and investment agreement signed on 5 October 2015, following years of negotiations,1 by 12 Pacific Rim countries, including Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the US and Vietnam (the parties or singularly, a party). Overall, the parties represent 40 per cent of global trade, and if the TPP enters into force it will create the largest free trade area in the world.

The TPP’s investment protection provisions are set out in Chapter 9 (the Investment Chapter), but this is only part of a wider and more ‘comprehensive regional agreement that promotes economic integration to liberalise trade and investment, bring economic growth and social benefits, create new opportunities for workers and businesses, contribute to raising living standards, benefit consumers, reduce poverty and promote sustainable growth.’2 These objectives are put in place throughout 30 chapters, numerous annexes and a number of side agreements and reservations.

The Investment Chapter is designed to protect investments of nationals of a party in the territory of another party. Like other international investment agreements (IIAs), the TPP sets out different promotion, protection and liberalisation rights for qualifying investors and their investments, but it also introduces limitations to investors’ rights in order to preserve the host state’s ability to regulate in the public interest.

Additionally, like most IIAs the TPP provides an investor-to-state dispute settlement (ISDS) mechanism, including the parties’ consent to refer investment disputes to international arbitration. As explained below, the TPP preserves the investors’ right to bring treaty claims through arbitration, but it also makes certain concessions leaning in favour of state interests, addressing some of the criticism that has been raised in the past against investment treaty arbitration.

If the TPP enters into force it will fit into a wider network of IIAs, including the free trade agreements (FTAs) that the US has entered into with other TPP parties (namely, the North American Free Trade Agreement (NAFTA) and the FTAs with Chile and Peru). That said, as explained below, the TPP is not enjoying all the initial support in the US that was expected,3 which could complicate the treaty’s ratification process and entry into force.

Substantive investment protection provisions

Like other investment protection provisions found in IIAs, the Investment Chapter protects qualifying investments of investors that are nationals of one party make in the territory of another party.4 The protection granted is, however, more limited than in other IIAs, generally leaning in favour of the host state’s interests. This can be seen as a general recognition that the host state may regulate in the interest of certain public policies without breaching the Investment Chapter. It can also be seen in a more detailed formulation and limited application of the fair and equitable treatment (FET) standard (in the form of the ‘minimum standard of treatment’),5 and the national treatment6 and most favoured nation (MFN) treatment standards.7

The Investment Chapter also includes the prohibition against expropriation without compensation,8 but this is also subject to a number of limitations and caveats to preserve the parties’ power to regulate, particularly in the environmental, public health and other public interest areas.

Scope of protected investments

The scope of protected investments is narrower than the open-ended definition of investment found in other IIAs. Notably, under the Investment Chapter, only tangible ‘assets’ involving a commitment of capital and entailing an assumption of risk qualify for protection under the treaty,9 departing from recent investment treaty case law that considered a wider range of assets to be within the scope of treaty protection.10

Minimum standard of treatment

In the context of other IIAs, the FET standard has often been construed broadly to include the right to a stable and predictable business and legal framework, preventing the host state from applying regulations that depart from investors’ legitimate expectations at the time the investments were made. On this basis, the FET standard has become the most frequently invoked provision in disputes between states and investors. To clarify this issue, the Investment Chapter defines the FET standard as the minimum standard of treatment under customary international law. This approach is in line with Chapter XI of the NAFTA, the investment chapters in recent FTAs and the US model bilateral investment treaties (BITs).

In particular, under a provision on the minimum standard of treatment11 the Investment Chapter covers both the FET and full protection and security standards. It sets out the parties’ obligation to ‘accord to covered investments treatment in accordance with applicable customary international law principles, including fair and equitable treatment and full protection and security’.12 The Investment Chapter also clarifies that these standards ‘do not require treatment in addition to or beyond that which is required by that standard, and do not create additional substantive rights.’13 Therefore, the scope of protection is confined to the ‘customary international law principles that protect the investments of aliens’.14

The application of the FET standard is further limited in two ways. First, the mere fact that a state measure is ‘inconsistent with an investor’s expectations’ does not constitute a violation of the FET standard, even if there is loss or damage to the covered investment as a result.15 An additional element is required, such as discrimination or arbitrariness. This is a novel addition to the TPP, with no similar language found in other IIAs.

Second, the Investment Chapter provides comparable considerations with regard to subsidies and grants. The mere fact that a subsidy or grant has not been issued, renewed or maintained, or has been modified or reduced, by a party does not constitute violation of the FET standard. This provision is also unique to the TPP, without any equivalent counterparts in NAFTA, the US BITs or the US FTAs.

Most favoured nation and national treatment

The MFN treatment is intended to secure a level playing field for investors and their investments. An investment treaty that contains an MFN clause typically allows an investor to rely on any greater substantive protections offered by a host state to the nationals of any other state, including those contained in the host state’s investment treaties with other states. This may allow investors to avoid certain restrictions on substantive investment protections that might otherwise be available under the applicable treaty.

It is in respect of the application of the MFN standard that the TPP limits the scope of investors’ rights. While the right to MFN (and national treatment) appears to extend to the right of entry, parties are allowed to opt out of ISDS with respect to claims brought for breach of the MFN clause.16 The application of the MFN clause is further limited by the fact that the Investment Chapter expressly indicates that MFN ‘does not encompass international dispute resolution procedures or mechanisms’.17 This removes the possibility of investors resorting to the MFN clause to rely on the more favourable dispute resolution mechanisms in another IIA concluded by the host state.18

One other key feature of IIAs is the principle of according national treatment to investors of the other contracting state. It requires the host state to treat the foreign investor in the same way as similarly situated domestic investors. The Investment Chapter endorses this obligation,19 but in an effort to ensure that governments retain their discretion to regulate (even if the regulation results in discriminatory treatment) the Investment Chapter establishes that the question of whether a foreign investor has been discriminated against by a national investor must be assessed by considering ‘the totality of the circumstances, including whether the relevant treatment distinguishes between investors or investments on the basis of legitimate public welfare objectives,’ rather than whether the foreign and domestic investor are simply in like circumstances.20 This type of clarification is a novel one, again focused on preserving governments’ regulatory powers.

Performance requirements

Performance requirements are typically aimed at achieving domestic benefits for the host state. In exchange for admitting an investment, a host state often seeks to impose performance requirements to strengthen a particular sector. The TPP prohibits the imposition by a host state of an exhaustive list of types of performance requirements.21 This includes prohibitions on requiring the achievement of a given percentage of local content or the supply of goods and services to certain markets. That said, the prohibition on performance requirements is subject to a number of carveouts, addressed in more detail below.

One notable type of prohibited performance requirement in the TPP relates to the transfer of technology, production processes or other proprietary knowledge. States often employ such requirements to bolster production capacity in a particular sector by requiring that a putative foreign investor agree to transfer its technology or know-how to a domestic company. This prohibition will be of particular interest to investors interested in safeguarding valuable intellectual property rights.

The TPP’s performance requirements provisions are particularly important in the Americas (namely in the three Latin American countries that have entered into the TPP: Chile, Mexico and Peru) as one of the unique features of these provisions (not available under the NAFTA or the US-Chile and US-Peru FTAs) is that they prevent requirements on purchasing, using or according a preference to technology of a party or a person of the party, or adopting a given rate, amount of royalties or duration of the terms for a licensing agreement.22

Expropriation

Like most IIAs, the TPP prohibits expropriation (whether direct or indirect), except where the expropriation is: for a public purpose; non-discriminatory in nature; accompanied by payment of prompt, adequate and effective compensation; and in accordance with due process of law.23

The TPP includes separate guidelines as to how to interpret the expropriation provisions under the Investment Chapter, with a similar wording to that used in the US Model BIT and in the latest generation of FTAs concluded by the US.24 Expropriation applies to governmental interference with ‘a tangible or intangible property right or property interest in an investment,’25 including both direct and indirect expropriation.26 Tribunals are, however, directed to determine, on a case-by-case basis, whether or not a state measure amounts to a taking, focusing on the following criteria:

  • First, tribunals are to consider a variety of factors in determining whether an expropriation occurred, including: the ‘economic impact’ of the host state action – although the adverse effect of such action on the ‘economic value of an investment’ does not establish an indirect expropriation in and of itself; the extent to which host state action interferes with ‘distinct, reasonable investment-backed expectations;’ and the ‘character’ of the host state action.27
  • Secondly, ‘non-discriminatory regulatory actions by a party that are designed and applied to protect legitimate public welfare objectives, such as public health, safety, and environment’ are excluded from the definition of indirect expropriation.28
  • Thirdly, there are certain types of specific measures listed in the treaty that are expressly deemed not to amount to a taking – namely in the context of the protection of human health and the environment.29

In spite of this great latitude in favour of states, this prerogative is not absolute and is subject to proportionality of the impact of the particular regulation on the investment compared with the public interest being served by the regulation.

It is important to note that in relation to expropriation the TPP contains stipulations regarding sovereign debt obligations, set out in Annex 9-G. This Annex expressly recognises ‘that the purchase of debt issued by a Party entails commercial risk,’ which may indicate that mere non-payment will not necessarily support a treaty claim, and excludes certain disputes, including expropriation claims, in relation to a restructuring of debt that is subject to a ‘negotiated restructuring’. This likely constitutes a response to a number of recent and controversial claims arising out of sovereign debt default and debt restructuring against Argentina, Cyprus and Greece.

Exclusions from investment protection under the TPP

As noted, the Investment Chapter was expressly intended to preserve ‘the right of governments to regulate in the public interest.’30 From the US perspective, the view was to ‘never negotiate away our right to [regulate], and we don’t ask other countries to do so either. This is true for public health and safety, the financial sector, the environment, and any other area where governments seek to regulate.’31 This approach has been endorsed in a number of additional provisions that either carve out the application of the substantive provisions or limit their application, including the following:

  • The parties are free to adopt, maintain, or enforce ‘any measure otherwise consistent with [the Investment Chapter] … to ensure that the investment activity … [is] sensitive to environmental, health, or other regulatory objectives.’32 Therefore, state measures adopted in these areas cannot give rise to state liability under the treaty.33
  • The parties may adopt measures that are necessary to regulate certain economic and financial interests of the host state. Notably, an investor’s purchase of sovereign debt is part of the commercial risks that an investor has to assume. Tribunals are thus directed to refrain from holding a host state liable for defaulting on or non-paying sovereign debt held by a foreign investor, unless the investor proves that there was a specific violation of the substantive investment protection provisions of the Investment Chapter. Further, disputes relating to sovereign debt restructuring are expressly excluded from investor-to-state arbitration under the TPP, unless the restructuring violates the national treatment and MFN standards. These provisions appear to respond to a number of the arbitrations that were brought against Argentina as a result of the country’s financial crisis in the early 2000s.
  • A tax carveout excludes host liability from taxation measures that affect investors. Therefore, taxation measures are not subject to the substantive investment protection provisions discussed above.34
  • The TPP includes denial of benefits provisions that allow the host state to deny the protection of the Investment Chapter in two different ways:
  • First, the parties can deny benefits to entities that: are owned or controlled by either a person of the denying party (ie, the host state) or a person that is not a national of one of the parties; and do not have substantial business activities in the territory of any of the parties (other than the denying party).35
  • Secondly, there is a separate way to deny benefits ‘with respect to claims challenging a tobacco control measure,’ including the ISDS provisions, both before and after a claim has been referred to arbitration.36 This appears to be a response to recent investment claims brought against states arising from measures banning, restricting or limiting the use or commercialisation of tobacco products.
  • The TPP gives states control over measures designed to regulate flow of capital as well. Even though the agreement is based on the commitment to free flow of capital, the drafters have contemplated instances where good faith and non-discriminatory limitations on transfer are permitted for laws relating to issues such as bankruptcy, securities, criminal offences, financial reporting and administrative proceedings.37 Aside from issues concerning the flow of capital, the state’s ability to regulate in good faith also extends to a portion of the prohibitions on performance requirements. The new performance requirement prohibitions that are unique to the TPP38 do not deprive states of their right to regulate in the public interest.39 In addition, parties are allowed to impose requirements ‘to employ or train workers in their territory provided that the employment or training does not require transfer of a particular knowledge’.40

In addition to the exclusions mentioned above, the TPP leans even further towards states’ interests by providing country-specific carveouts. It offers specific exceptions for Australia on ‘whether or not to approve a foreign investment proposal,’41 to Canada with respect to ‘whether or not to permit an investment that is subject to review,’42 to Mexico on ‘whether or not to permit an acquisition that is subject to review,’43 and to New Zealand regarding whether or not ‘to grant consent, or to decline to grant consent, to an overseas investment transaction that requires prior consent.’44

The investor-to-state dispute settlement mechanism

The Investment Chapter includes detailed ISDS provisions. As in other IIAs, the TPP provides qualifying investors (ie, nationals of another party) with a right of action against the host state through international arbitration, in circumstances where the state adopts measures in violation of the treaty’s investment protection standards that have an adverse effect on their investments.

Under section B of the Investment Chapter, the TPP provides a wide range of arbitration options. The signatory states irrevocably consent to the referral of investment disputes to arbitration under any of the following rules or forums: the International Centre for Settlement of Investment Disputes (ICSID), if both the host state and the investor’s home state are parties to the ICSID Convention; ICSID Additional Facility Rules, if either state is a party to the Convention; the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules; or any other arbitral institution or any other arbitration rule that the claimant and respondent agree, for example, the London Court of International Arbitration (LCIA) or the International Chamber of Commerce (ICC) Arbitration Rules.

The TPP seeks to address certain concerns voiced in recent years in relation to investment treaties and ISDS. Some of that criticism is that states often face frivolous or unfounded claims; investment treaties do not provide for any obligations for investors (they only focus on state conduct) and do not allow the host state to bring counterclaims against the investor; arbitral tribunals often produce inconsistent, ill-reasoned and sometimes incoherent awards, while there is no appellate mechanism available; investors often seek to have multiple bites of the cherry by commencing proceedings pursuant to different treaties; arbitration proceedings lack any transparency even though important sovereign interests are at stake; or even that in certain occasions complaints have been raised against unethical conduct by counsel or arbitrators.

The TPP intends to address these issues and, according to the United States Trade Representative the Investment Chapter ‘serves to modernise and reform ISDS by including clearer language and stronger safeguards that raise standards above virtually all of the other 3,000 plus investment agreements in force today’.45 Some of these safeguards are addressed below.

The ISDS provisions include safeguards to prevent abusive and frivolous claims, making claimants state the basis of their claims in detail from the beginning of the arbitration,46 requiring claims to be brought within three-and-a-half years from the alleged breach,47 and providing for the expedited review of frivolous claims,48 including the power for a tribunal to award attorneys’ fees to the prevailing party in those cases.49

The Investment Chapter also includes the novel approach of allowing respondent states to bring counterclaims against the investor,50 in cases where the claimant is in breach of a contract with the host state or in violation of an investment authorisation. This allows the respondent to ‘make a counterclaim in connection with the factual and legal basis of the claim or rely on a claim for the purpose of a set off against the claimant’.51

To address the problem of inconsistency of arbitral awards, the TPP leaves open the possibility of putting in place an appellate mechanism to be ‘developed in the future under other institutional arrangements’. The TPP, however, fails to incorporate such mechanism to offer consistent legal interpretation. This is also not a new proposal, as the possibility of an appellate mechanism has already been included in a number of IIAs concluded by the US since 2004,52 but not in place yet. An appellate mechanism was also subject to extensive discussions in 2006, during the revision of process of the ICSID Arbitration Process, which was ultimately discarded. Indeed, the extent of which an appellate mechanism would bring the desired uniformity in the awards rendered has not yet been tested.

The TPP also addresses the issue of potential parallel proceedings when an investor brings treaty claims under different IIAs. In cases where both the TPP and another IIA apply, an investor qualifying under both treaties may be able to avail itself of the ISDS mechanisms provided under both treaties. That said, the TPP also requires that a notice of arbitration made pursuant to the TPP’s ISDS provisions be accompanied by the claimant’s waiver of ‘any right to initiate or continue before any court or administrative tribunal under the law of a party, or any other dispute settlement procedure with respect to any measures alleged to constitute a breach’.53 This would protect states from having to defend themselves in multiple venues with regard to the same dispute.

As for transparency, the TPP attempts to increase the level of transparency in arbitral proceedings by making it more accessible to the general public. To that end, the TPP requires that all intent notices, arbitration notices, written submissions, orders, awards and decisions of the tribunals be published,54 and all hearings be open to the public.55 The topic of transparency in investment treaty arbitration is gaining increasing attention, particularly in light of the recent UNCITRAL Rules on Transparency in Treaty-Based Investor-State Arbitration,56 one of the key recent developments in international investment law.

Additionally, the Investment Chapter expressly allows amicus curiae submissions or submissions by non-disputing state parties regarding a matter of fact or law within the scope of the dispute that may assist the tribunal in deciding the issues in the dispute.57

Finally, it is envisaged that the TPP parties will establish a code of conduct for arbitrators to provide additional guidance on issues regarding independence and impartiality.

Further developments in the ratification process by the US

The TPP requires ratification by the individual signatory governments before it enters into force. The TPP may come into force through two different processes. If all 12 signatories ratify the agreement, then it will become effective 60 days after the last instrument of ratification is deposited with New Zealand (the TPP’s depositary).58

If, however, two years elapse and at least some of the signatories have not ratified the treaty, then the treaty will still enter into force if at least six parties have ratified it and those parties comprise at least 85 per cent of the GDP of the original 12 signatories.59 The US and Japan’s economy, respectively, make approximately 57 per cent and 22 per cent of the total GDP involved in the TPP. Therefore, if the treaty is not ratified by either of these two countries it would automatically fall short of the 85 per cent threshold. Therefore, without the US’s ratification it will be difficult for the TPP to enter into force.

The US Constitution gives the power to ‘regulate commerce with foreign nations’ and ‘to lay and collect taxes, duties, imposts, and excises’ to Congress.60 On the other hand, the authority to negotiate treaties and international agreements and exercise broad authority over the nation’s foreign affairs is assigned to the president.61 Furthermore, Trade Promotion Authority (TPA) laws give the president the ability to implement international trade agreements under an expedited legislative procedure if the president follows specific statutory obligations.62 Congress exercises its trade policy role in the TPA by defining objectives that the president should pursue during the negotiation.63 Under TPA, FTAs and multilateral trade agreements that go beyond tariff reductions, such as the TPP, are treated as congressional-executive agreements, which require the approval of both houses of Congress.64

It is highly unlikely that even under the fast-track TPA the implementation bill would pass both houses of Congress before the 2016 presidential election.65 Moreover, both the Republican and Democratic candidates for president appear to be against the ratification of the treaty,66 complicating even further the possibilities of ratification by the United States.

Although the TPP was initially deemed to be endorsing a ‘new gold standard’ in free trade agreements,67 the TPP is today subject to certain political debate and reservations in the United States and it is uncertain whether the treaty will get the required Congressional approval. Without the US ratification, the future of the TPP is uncertain, especially given the fact that without the ratification of both the US and Japan the treaty will never come into effect. Despite the uncertainties regarding the treaty’s entry into force, the Investment Chapter in the TPP represents a new model in international investment agreements.

Notes

1     Originally known as the ‘Trans-Pacific Strategic Economic Partnership’, the TPP was ‘conceived in 2003 by Chile, New Zealand and Singapore as a path to trade liberalisation in the Asia-Pacific region. Brunei joined negotiations in 2005, and the Trans-Pacific Strategic Economic Partnership (P-4) agreement was concluded in 2006. In March 2008, the United States joined the negotiations to conclude the still outstanding investment and financial services provisions. President Bush notified Congress of his intention to negotiate with the existing P-4 members on 22 September 2008, and with other countries, Australia, Peru and Vietnam, on 30 December 2008. See Ian F Fergusson, ‘The Trans-Pacific Partnership (TPP): Negotiations and Issues for Congress’, Congressional Research Service (2015), page 1.

2     TPP, Preamble.

3     According to the Office of the United States Trade Representative (USTR), the TPP ‘writes the rules for global trade – rules that will help increase Made-in-America exports’ and ‘grow the American economy.’ See Office of the United States Trade Representative, The Trans-Pacific Partnership, Leveling the playing field for American workers & American businesses, (2016), available at https://ustr.gov/tpp.

4     TPP, Section A.

5     TPP, article 9.6.2(a).

6     TPP, article 9.4.

7     TPP, article 9.5.

8     TPP, article 9.8.

9     TPP, article 9.1 (definition of investment).

10   For example, in Deutsche Bank AG v Sri Lanka (ICSID Case No ARB/09/02), the tribunal held that the definition of the term ‘investment’ under the BIT includes ‘every kind of asset’, including ‘the Hedging Agreement is an asset. It is a legal property with an economic value for Deutsche Bank. It is a claim to money which has been used to create an economic value’ (Award, paragraph 285).

11   TPP, article 9.6.2(a).

12   TPP, article 9.6 (Minimum Standard of Treatment).

13   TPP, article 9.6.2.

14   TPP, Annex 9-A.

15   TPP, article 9.6.4.

16   TPP, Annex 9-H. This has already been the case in Australia, Canada, New Zealand and Mexico.

17   TPP, article 9.5.3.

18   A similar prohibition on the use of the MFN standard does not exist in NAFTA, nor in the US BITs. It does, however, appear in the footnotes in a number of US FTAs, including the treaties with Peru and Chile. The addition of this prohibition to the actual text of the TPP can be attributed to correcting efforts made by several governments, including the US government, after a number of arguably broad interpretations of the MFN clause.

19   TPP, article 9.4.

20   TPP, article 9.4, footnote 14.

21   TPP, article 9.9.

22   TPP, articles 9.10.1(h) and (i).

23   TPP, article 9.7.

24   TPP, Annex 9-B.

25   TPP, Annex 9-B(1).

26   TPP, Annex 9-B(2).

27   TPP, Annex 9-B(3).

28   TPP, Annex 9-B(3)(b).

29   TPP, Annex 9-B(3)(b), footnote 37.

30   Office of the United States Trade Representative, The Trans-Pacific Partnership, Levelling the playing field for American workers & American businesses (2016), https://ustr.gov/tpp/#upgrading-isds.

31   Ibid.

32   TPP, article 9.16.

33   See TPP, Annex 9-B. See also article 29.3 recognising that a state may adopt or maintain restrictive temporary financial safeguards in exceptional circumstances if they are otherwise consistent with the TPP; or article 29.5 of the TPP allowing states to prevent or stop a claim that challenges a tobacco control measure.

34   TPP, article 29.4.

35   TPP, article 9.14.

36   TPP, article 29.4.

37   TPP, article 9.9.4.

38   Article 9.10.1(h) and (i) of the TPP introduce prohibitions in performance requirement that are unique to the TPP. By virtue of these two subsections, purchasing, using or according a preference to technology of a party, or adopting a given amount of royalties or duration of licence terms is prohibited.

39   TPP, article 9.10.3(h).

40   TPP, article 9.10.4.

41   TPP, Annex 9-H.1.

42   TPP, Annex 9-H.2.

43   TPP, Annex 9-H.3.

44   TPP, Annex 9-H.4.

45   Office of the United States Trade Representative, The Trans-Pacific Partnership, Levelling the playing field for American workers & American businesses (2016), https://ustr.gov/tpp/#upgrading-isds.

46   TPP, article 9.19(3).

47   TPP, article 9.21(1).

48   TPP, articles 9.23(4) and (5).

49   TPP, article 9.32(6).

50   TPP, article 9.18(2).

51   TPP, article 9.18(2).

52   In a variety of US FTAs, the annexes (eg, 10-H in the Chile-US FTAs) give parties three years to consider establishing a bilateral appellate body. In the context of the US-European Union free trade agreement, the Transatlantic Trade and Investment Partnership (TTIP), the Investment Chapter suggests that an ‘investment court system’ should replace ISDS where an Appeal Tribunal would operate on similar principles to the WTO Appellate Body.

53   TPP, article 9.20.2.b.

54   TPP, article 9.24.1.

55   TPP, article 9.24.2.

56   United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (New York, 2014); available at www.uncitral.org/pdf/english/texts/arbitration/rules-on-transparency/Rules-on-Transparency-E.pdf.

57   TPP, article 9.23.3

58   TPP, article 30.5.1.

59   TPP, article 30.5.2.

60   US Const, article I, section 8.

61   US Const, article II.

62   Christoph Antons and Reto Hilty, Intellectual Property and Free Trade Agreements in the Asia-Pacific Region, 160 (2015).

63   Office of the United States Trade Representative, Trade Promotion Authority (2016), https://ustr.gov/trade-topics/trade-promotion-authority.

64   See Ian F Fergusson, Trade Promotion Authority (TPA) and the Role of Congress in Trade Policy, Congressional Research Service, 9 (2015). In respect of the TPP see also Ian F Fergusson, The Trans-Pacific Partnership (TPP): Negotiations and Issues for Congress, Congressional Research Service (2015).

65   Muftiah M McCartin and Kaitlyn McClure, What’s Next for TPP: Will Congress Ratify in 2016?,Global Policy Watch, (2016), www.globalpolicywatch.com/2016/01/whats-next-for-tpp-will-congress-ratify-in-2016/.

66   Abby Phillip, ‘In Ohio, Hillary Clinton strengthens opposition to Trans-Pacific Partnership’, Washington Post, (2016), www.washingtonpost.com/news/post-politics/wp/2016/03/12/in-ohio-hillary-clinton-will-voice-support-for-tougher-trade-rules/ and Donald J Trump, ‘Disappearing Middle Class Needs Better Deal on Trade’, USA TODAY, (2016), www.usatoday.com/story/opinion/2016/03/14/donald-trump-tpp-trade-american-manufacturing-jobs-workers-column/81728584/.

67   See Hillary Rodham Clinton, Secretary of State, ‘Remarks at Techport Australia’ (2012), available at www.state.gov/secretary/20092013clinton/rm/2012/11/200565.htm.

Get unlimited access to all Global Arbitration Review content