On November 11, 2017, in Da Nang, Vietnam, ministers of Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam “agreed on the core elements of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP).”
In their statement, the ministers expressed their understanding that “the CPTPP maintains the high standards, overall balance, and integrity of the TPP while ensuring the commercial and other interests of all participants and preserving our inherent right to regulate, including the flexibility of the Parties to set legislative and regulatory priorities.”
The CPTPP incorporates provisions of the TPP-12, concluded before the U.S. withdrawal, with the exception of certain suspended provisions and items that still depended on further negotiations. In the investment chapter, the suspended provisions are those regarding “investment agreement” and “investment authorization,” which are covered by investor–state dispute settlement (ISDS).
In a press release issued on October 31, 2017, New Zealand Prime Minister Jacinda Ardern had expressed her government’s concern regarding the ISDS clause of the TPP and resolve to amend it. “In addition, Cabinet has today instructed trade negotiation officials to oppose ISDS in any future free trade agreements,” the press release stated.
After the Da Nang November 11 meeting, Ardern hailed the narrowing of ISDS in three areas: “One, ISDS no longer applies to investor screening. The second, anyone who takes up a contract with a Government is no longer able to sue through ISDS, but must go through domestic procedures instead. The third relates to financial services.”
While acknowledging that the agreement is not perfect, Ardern stated that “it is a damn sight better than what we had when we started,” and that the review of the TPP in three years would be another chance for New Zealand to challenge the ISDS provisions. She finally confirmed: “We’re putting a line in the sand—we will not sign up to future agreements that include those clauses.”
Canadian Prime Minister Justin Trudeau and Japanese Prime Minister Shinzo Abe had a meeting on November 10 that ended in disagreement. A subsequent meeting with other TPP leaders was unexpectedly cancelled as Trudeau decided not to attend it.
Criticized by some for allegedly “sabotaging” a final agreement, Trudeau explained that there still was “important work to be done” regarding gender, rules of origin, culture and the automotive sector. “We weren’t ready to close it,” Trudeau said. In advance of the Da Nang meeting, he had stated that Canada would “not be rushed into a deal that is not in the best interest of Canada and Canadians.”