Even looking at earlier drafts of sections reveal that trade agreements can have negative externalities that may have far-reaching costs for signatory nations. That some senators like Elizabeth Warren have signaled its problems only makes more transparency important and that for PBO, TPP is like Tom Brady not knowing how the footballs lost air.
The 20 March 2015 report to Congress has some interesting elements as well.
(2015) The issue of regulatory coherence represents one of the new cross-cutting trade issues added to the TPP negotiations. The goal of regulatory coherence is to ease the conditions and costs of trade between TPP countries while affirming the rights of TPP countries to regulate their economies to promote legitimate policy objectives. According to the USTR, this initiative stems from the proliferation of regulatory and nontariff barriers, which have become a major hurdle for business gaining access to foreign markets. Some of the goals of the effort are to “improve regulatory practices, eliminate unnecessary barriers, reduce regional divergence in standards, promote transparency, conduct regulatory processes in a more trade-facilitative manner, eliminate redundancies in testing and certification, and promote cooperation on specific regulatory issues.
(2014) All signatory countries will be required to conform their domestic laws and policies to the provisions of the Agreement. In the US, this is likely to further entrench controversial aspects of US copyright law (such as the Digital Millennium Copyright Act [DMCA]) and restrict the ability of Congress to engage in domestic law reform to meet the evolving IP needs of American citizens and the innovative technology sector. The recently leaked US-proposed IP chapter also includes provisions that appear to go beyond current US law.....
In short, countries would have to abandon any efforts to learn from the mistakes of the US and its experience with the DMCA over the last 12 years, and adopt many of the most controversial aspects of US copyright law in their entirety. At the same time, the US IP chapter does not export the limitations and exceptions in the US copyright regime like fair use, which have enabled freedom of expression and technological innovation to flourish in the US. It includes only a placeholder for exceptions and limitations....
TPP raises significant concerns about citizens’ freedom of expression, due process, innovation, the future of the Internet’s global infrastructure, and the right of sovereign nations to develop policies and laws that best meet their domestic priorities. In sum, the TPP puts at risk some of the most fundamental rights that enable access to knowledge for the world’s citizens.
The US Trade Rep is pursuing a TPP agreement that will require signatory counties to adopt heightened copyright protection that advances the agenda of the US entertainment and pharmaceutical industries agendas, but omits the flexibilities and exceptions that protect Internet users and technology innovators
Accordingly, a 21st Century approach to regulatory coherence in the TPP talks would pursue trade liberalization and regulatory objectives in an integrated manner. The compatibility and transparency of TPP member state regulatory systems should be achieved by working jointly on issues of mutual interest to the participating trade and regulatory officials. Current and future TPP members would participate more meaningfully in trade discussions on reducing unnecessary regulatory heterogeneity if they knew that the regulatory preconditions for benefiting from those binding commitments were in place. Similarly, pursuing regulatory objectives through TPP would help maximize member governments’ scarce resources on transnational regulatory challenges, engage other sources of leverage and expertise, and help ensure consistency with international trade law
The question is whether a 21st Century solution is actually going to be enacted.
The United States has reportedly proposed that each TPP member strongly consider establishing a regulatory coordinating mechanism, closely modeled on the U.S. Office of Information and Regulatory Affairs, to help limit duplication and conflicting regulatory actions among domestic ministries.
The institutional details of this coordinating mechanism will be otherwise left to each
TPP member, but early TPP chapter proposals outline in detail the regulatory impact analysis (RIA) that the coordinating mechanism should undertake and subjects the obligation to consider a coordinating mechanism to dispute resolution. The proposed RIA provisions reflect the good regulatory practices outlined in the APEC-OECD Integrated Checklist on Regulatory Reform. With respect to intergovernmental coordination, the chapter is expected to encourage the parties only to consider a broadly defined agenda of information exchanges, potential sectoral limitations on regulatory barriers in other TPP chapters, and the creation of regulatory coherence committee that meets annually or semi-annually to consider undefined cooperative activities.
If adopted, the intra-governmental regulatory reform proposals outlined above would have modest and indirect benefits for trade. Centralized coordination and cost-benefit analyses should help improve the quality and transparency of TPP member country regulations, which will help importers. This approach will do little, however, to address the inefficiencies that result from regulatory heterogeneity and duplication among TPP member countries. Adopting similar methods to coordinate and assess the impact of proposed domestic regulation will not necessarily lead to similar regulations. Without stronger coordination between countries, differences in TPP member states’ regulatory standards and conformity assessment procedures will persist. Similarly, the mechanisms of domestic regulatory reform will do little to foster the inter-governmental cooperation necessary to oversee increasingly transnational and complex production chains.
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This is what the Chamber of Commerce thinks it is in the Atlantic context...
Transparency and Stakeholder Involvement
Regulatory coherence begins with commitments to transparency and stakeholder
involvement, as such inputs provide regulators the breadth of information they need
to appropriately balance costs and benefits. It is critical that the TTIP agreement
include commitments on improving participation, transparency and accountability in
both the U.S. and EU rule-making processes. Such commitments form the bedrock
for greater regulatory compatibility and cooperation. It is impossible to spur
cooperation without agreement on the importance of coherence and adherence
to good regulatory practices. The reason is clear: It is difficult to cooperate if the
regulations are developed through analysis that relies on fundamentally different
information sets. When this happens, regulatory cooperation becomes a bridge too
far. As a base-line, therefore, transparency and solicitation of stakeholder inputs are
essential for regulators to achieve better-informed decisions.
The TTIP regulatory coherence transparency provisions should oblige regulators to:
Provide appropriate public access to regulatory measures and their supporting
documentation, analyses and data, making this information available online for
viewing and reproducibility by all stakeholders, including those outside the
regulated jurisdiction.
Publish and publicize draft proposals as early as possible in the process, and
definitely before action is taken beyond drafting.
Explain the objective and rationale for a proposal and provide all information,
data and related impact assessments used to develop the proposed measure.
Provide reasonable opportunities and sufficient time for stakeholders to
comment, considering the complexity of the proposal, by making the proposal
and supporting information readily available for a reasonable time before the
date public comments are due.
Take into account the comments received from interested persons, including
providing feedback on the substance of those comments, incorporating
changes prior to adoption, and clearly explaining why certain recommendations
of stakeholders were not incorporated.
