Leaked TPPA document leaves NZ position on software patents unclear

But New Zealand's lack of opposition to investor-state dispute provisions in Trans-Pacific Partnership agreement is evident, says TPPA critic

New Zealand’s lack of opposition to the “investor-state dispute provisions” in the Trans-Pacific Partnership Agreement (TPPA) is evident from a leaked draft negotiation text, says TPPA critic Jane Kelsey. However Kelsey acknowledges that New Zealand has not irrevocably signed up to provisions that would allow foreign investors to sue our government.

She explains that the punctuation of the leaked document reveals much about the negotiation positions of TPPA parties.

“Technically no country has signed up to anything until the treaty is signed. What the leak shows is that there are parts that have been agreed by all parties. That is all the material that does not appear in square brackets.

“In other places, there are square brackets and a footnote tells us which country is taking that position. The most important of these is Australia's footnote to Section B, which makes it clear that only Australia has rejected the application of investor state dispute mechanism (if the whole section was still in dispute more generally it would appear in square brackets),” Kelsey writes in an email to Computerworld.

Media, particularly Radio New Zealand National, have repeatedly said New Zealand has “signed up” to the provision, but Trade Minister Tim Groser has held adamantly to a position he described last year when he told Computerworld treaties NZ has signed always contain exceptions allowing the country to pursue its own public policy secure from overseas-investor interference. “We will not sign things that do not contain comparable public policy exceptions that any New Zealand government of any complexion would expect and require,” he said.

This position was reiterated more recently by Ministry of Foreign Affairs and Trade officials in May .

In the ICT context there are particular apprehensions about TPPA’s investor-state provisions potentially conflicting with New Zealand’s intention to exclude patents on software (Computerworld, April 5) and with privacy conditions this country may wish to impose on cloud computing.

The leaked text does not indicate which country’s negotiators are taking which position, Kelsey, a professor at the University of Auckland, says.

“However, where there are several versions still on the table, indicated by square brackets, some of these are clearly US positions as they mirror their existing free-trade agreements.

“I know from conversations with informed sources what position NZ is taking on various of these,” she claims, “but cannot produce text to show this.”

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