The TPP Agreement: An Anti-Privacy Treaty for Most of APEC

Abstract

Twelve Pacific-rim nations accounting for 40% of the global economy, including most significant APEC economies other than China, have reached agreement on a historic free-trade agreement, and others are queuing up to join. The Trans-Pacific Partnership Agreement (TPP) was signed in Atlanta, Georgia on 5 October 2015 after eight years of negotiation. It is yet to obtain the necessary ratifications. All twelve initial parties to the TPP are APEC member economies: Australia; Brunei Darussalam; Canada; Chile; Japan; Malaysia; Mexico; New Zealand; Peru; Singapore; the United States; and Vietnam. Indonesia, South Korea, Taiwan and the Philippines have also expressed interest in joining.

The TPP is the first multilateral trade agreement with detailed provisions relating to privacy/data protection that go beyond GATS Article XIV(c)(ii). The TPP requirements are overwhelmingly negative from a privacy perspective, because they:

(a) include no substantive or meaningful requirements to protect privacy;

(b) are coupled with prohibitions on data export limitations or data localisation requirements that can only be overcome by a complex ‘four step test’ of justification; and

(c) are backed up by the risk of enforcement proceedings between states or under ISDS (investor-state dispute settlement) provisions, both involving uncertain outcomes from dubious tribunals and potentially very large damages claims.

If the TPP fails to be ratified, this will be a net gain for privacy protection, whatever one thinks about its other potential economic advantages.

Note: A more detailed discussion of the TPP and privacy is included in ‘The TPP & Other Free Trade Agreements: Faustian Bargains for Privacy?’ at http://ssrn.com/abstract=2732386.

Keywords: privacy, data protection, free trade, FTA, APEC, TPP, ISDS, investor-state dispute settlement