Professors Demand TPP Transparency; USTR Says Detailed Response Forthcoming

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By Anandashankar Mazumdar  

U.S. Trade Representative A. Ronald Kirk said he was “offended” by assertions that the negotiation process surrounding the Trans-Pacific Strategic Economic Partnership Agreement has been non-transparent and lacking in public participation, according to a May 9 response to a critical letter submitted by 32 law professors from institutions around the world.

The message from Kirk was forwarded to a listserv by Sean M. Fiil Flynn, a professor at American University, and appeared to be from Kirk's USTR email address, signed with his initials, “ARK.”

Kirk said in an email message that a more detailed response to the criticism will be forthcoming from the USTR's office, while asserting that there has been transparency and public participation in the process so far.

The TPP Agreement seeks to establish free trade principles among nine countries. Brunei, Chile, New Zealand, and Singapore ratified the treaty in 2006 and negotiations are underway for five new signatories--Australia, Malaysia, Peru, the United States, and Vietnam. The parties are currently meeting in Dallas for the 12th round of negotiations, scheduled for May 8-18.

The United States has proposed amending the treaty with provisions on enforcement of intellectual property rights, a move that has drawn the criticism of public interest groups.

Law Professors Express Concern, Disappointment.

The 23 professors submitted a letter to Kirk on the morning of May 9 stating a “profound concern and disappointment at the lack of public participation, transparency and open government processes by the [USTR] in the negotiation of the Trans-Pacific Partnership Agreement.”

The letter stated that the TPP process risks provoking the kind of opposition that the Anti-Counterfeiting Trade Agreement has faced from the European Parliament (80 PTD, 4/26/12).

The administration has already faced calls from members of Congress to include strong IP rights standards in the TPP agreement.

However, critics like the professors who signed the May 9 letter have expressed concerns about what they consider excessive IP protection, particularly when such protection might restrict access to generic medicines in developing countries.

On at least one occasion, a non-governmental organization has gained access to and leaked the texts of discussion drafts (206 PTD, 10/25/11). Following that leak, Flynn, one of the signatories of the May 9 letter--said that U.S. proposals regarding pharmaceutical pricing and IP protection were “extreme” and “have no place in a trade negotiation, particularly one with some of the poorest countries in the world.”

This concern was echoed in December by Rep. James A. McDermott (D-Wash.), the ranking minority member of the House Ways and Means Committee's Subcommittee on Trade. McDermott expressed a desire for the administration to adhere to standards set forth in a May 2007 agreement on IP rights that would seek to ensure that life-saving generic medicines would be available overseas at the same time they became available in the United States (243 PTD, 12/19/11).

The May 9 letter urged the USTR's office “to expand, rather than contract, the opportunities for public engagement in trade policy setting,” particularly in a time when trade agreements “no longer focus exclusively, or perhaps even predominantly, on the regulation of trade.”

In particular, the letter expressed concern about the use of trade agreements to effect changes in domestic law without going through the legislative process.

USTR Responds Briefly.

In his brief email response, after stating that he would respond to the letter in detail after reviewing it, Kirk said:  

[Y]ou may be surprised to know that USTR has conducted the most, active outreach to all stakeholders relative to the TPP than in any [Free Trade Agreement] previously, including, the proposed disciplines on intellectual property.  

I do not quarrel with any assertions that our work may not reflect the exact wishes of your colleagues, but, I am strongly offended by the assertion that our process has been non-transparent and lacked public participation. USTR has conducted in excess of 400 consultations with Congressional and private stakeholders on the TPP, including inviting stakeholders to all of the twelve negotiating rounds.  



Kirk concluded by expressing the hope that after the USTR's office has responded formally to the letter that the letter writers would “make every effort to educate your colleagues as to the extraordinary efforts our staff has engaged in relative to drafting our proposed texts for the TPP.”

Flynn reacted to Kirk's message with a public statement that while the TPP process might be more transparent than other FTA negotiations had been, it is not as transparent as the processes instituted by the World Intellectual Property Organization, the World Trade Organization, or national legislatures.

“The difference is important,” Flynn said. “FTAs are indeed even more secretive than TPP (or ACTA). The justification for that secrecy was traditionally that their subjects were about the horse trading of tariff schedules rather than the setting of domestic legislative standards. The setting of domestic legislative standards should be subject to far more open and transparent processes than that for bilateral trade agreements.”

The signatories to the professors' letter included Christopher Jon Sprigman of the University of Virginia, Charlottesville, Va., Michael Geist of the University of Ottawa, Canada; Pamela Samuelson of the University of California, Berkeley, Calif.; Peter Jaszi of American University; and Rebecca Tushnet of Georgetown University.

By Anandashankar Mazumdar  

Text of the professors' letter at


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