Memento Mori: Membership Issues in the Entry into, Modification of, and Withdrawal from the TPP

19 Pages Posted: 19 May 2016 Last revised: 24 Jan 2017

Date Written: May 15, 2016

Abstract

Compared to the substantive obligations such as tariff reduction, investor-state dispute settlement (ISDS) mechanism or intellectual property rights, less attention has been paid to systemic, administrative concerns that the Trans-Pacific Partnership (TPP) might face.However, "membership" issue has become the more important after the official announcement by the US President Donald Trump to “withdraw” from the TPP.

This article tries to provide a broader perspective about the membership issues throughout the life cycle of the TPP regime. Needless to say, there must be a sufficient number of members for the TPP to take effect in the first place. In addition, accession is a key topic regarding membership. Furthermore, there are many other aspects of the membership issue that would affect the orderly functioning of the TPP. For example, whether or not other 11 original signatories to the TPP can "amend" the treaty text without the US is a pressing question.

We examine three membership issues that cover different life stages of the TPP, namely, ratification of the TPP, ratification of an amendment and withdrawal from the TPP. More specifically, we first look into the requirements for an original signatory to be a Party to the TPP after it takes effect for other original signatories (the “late ratification” issue). Second, we analyze the role of additional requirements for an amendment to take effect once adopted by the Commission, the TPP’s highest decision-making body (the “second ratification” issue). Third, we evaluate if withdrawal is a real option, in relation to the threat of ISDS arbitration afterwards (the “litigation risk of withdrawal” issue).

Our findings can be summarized as follows. First, imposing an additional burden on late ratifiers to membership of the TPP may create incentives for early ratification. However, it may also incentivize rent seeking in early participants by way of renegotiation or side payment, which would endanger the fragile balance that the original signatories reached in October 2015. Second, the rationale to require ratification by all member states for an amendment to take effect is not clear. The current requirement may prevent the TPP’s expedited adjustment to subsequent changes in circumstances. Third, a member state is free from the risk of ISDS arbitration if notification of the withdrawal from the TPP precedes the request for consultation by a foreign investor. Finally, we found that membership issues are important in a broader context in ensuring the effective functioning of the TPP.

Keywords: Trans-Pacific Partnership (TPP), Accession, Amendment, Withdrawal, Treaty interpretation

JEL Classification: K33

Suggested Citation

Kobayashi, Tomohiko, Memento Mori: Membership Issues in the Entry into, Modification of, and Withdrawal from the TPP (May 15, 2016). Available at SSRN: https://ssrn.com/abstract=2781813 or http://dx.doi.org/10.2139/ssrn.2781813

Tomohiko Kobayashi (Contact Author)

Otaru University of Commerce ( email )

3-5-21 Midori
Otaru, Hokkaido 047-8501
Japan
+81-134-27-5430 (Phone)
+81-134-27-5430 (Fax)

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