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Viewing the Trans-Pacific Partnership Agreement Through an Agriculture Lens

Discussion paper by Boonekamp, Clemens/UNCTAD, 2016

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The Trans-Pacific Partnership (TPP) trade agreement will be one of the most consequential trade agreements in twenty years, on par with the North American Free Trade Agreement (NAFTA) or China’s entry to the World Trade Organization (WTO).1 The TPP is deeper and broader than other agreements, containing 30 chapters that bind 12 member countries (Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, United States and Vietnam) together in ways that are often covered in less depth or are even carved out completely. Most the TPP takes effect immediately. As discussed in greater detail below, roughly 90 percent of all tariffs fall to zero on the date of entry into force of the agreement. All of the services and investment provisions kick in immediately. Much of the remainder of the agreement’s rule book also becomes active from the first day, with some flexibility for some of the rules in areas like intellectual property rights protections for countries like Vietnam. Once the TPP has been fully implemented, nearly all of the tariffs will be at zero for all of the TPP members moving goods between markets in the agreement. These provisions apply even to sensitive items like agriculture. The TPP could dramatically reconfigure supply chains in food and processed food items in ways that past trade agreements did not. The deep and broad commitments in the TPP sets up some interesting new dynamics. It is likely to exacerbate tensions in the global trading system that fall most acutely on the smallest, poorest states as companies increasingly “vote with their feet” and shift production, sales and services into TPP member markets and leave behind non-member markets in the region.

U N I T E D N AT I O N S C O N F E R E N C E O N T R A D E A N D D E V E L O P M E N T


Viewing the
Trans-Pac i f ic


Partnersh ip Agreement
through an Agr icu l ture


Lens


Explor ing new
trade front iers


ANALYSIS







U N I T E D N AT I O N S C O N F E R E N C E O N T R A D E A N D D E V E L O P M E N T


V iewing the
Trans-Pac i f ic


Par tnersh ip Agreement
through an Agr icu l ture Lens


Explor ing new
trade front iers


ANALYSIS


New York and Geneva 2016




NOTES


The designations employed and the presentation of the material in this publication do not imply the expression
of any opinion whatsoever on the part of the Secretariat of the United Nations concerning the legal status of any
country, territory, city or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries.


Symbols of United Nations documents are composed of capital letters combined with figures. Mention of such
a symbol indicates a reference to a United Nations document.


Material in this publication may be freely quoted or reprinted, but acknowledgement is requested. A copy of the
publication containing the quotation or reprint should be sent to the UNCTAD secretariat at: Palais de Nations,
CH 1211 Geneva 10, Switzerland.


The views expressed in this publication are those of the authors and do not necessarily reflect the views of the
United Nations Secretariat.


This publication has not been formally edited.


© Copyright United Nations 2016
All rights reserved


UNCTAD/DITC/TED/2016/2


VIEWING THE TRANS-PACIFIC PARTNERSHIP AGREEMENT THROUGH A LENS OF AGRICUTUREii




ACKNOWLEDGEMENTS


This publication is a part of a series “Exploring new trade frontiers”, commissioned by the Division on International
Trade in Goods and Services, and Commodities, UNCTAD.


The analytical paper “Viewing Trans-Pacific Partnership Agreement through a Lens of Agriculture” was prepared
by Clemens Boonekamp, consultant, and revised by an UNCTAD team comprising Marisa Henderson and
Marina Murina. The work was completed under the overall supervision of Guillermo Valles, Director of the Division
on International Trade in Goods and Services, and Commodities.


Design of cover and desktop publishing by Laura Moresino-Borini.


iiiACKNOWLEDGMENTS






vCONTENT


CONTENT


Notes ................................................................................................................................................................ ii


Acknowledgements .......................................................................................................................................... iii


Executive Summary ......................................................................................................................................... vii


I. Introduction ................................................................................................................................................. 1
A. Economic Significance ........................................................................................................................... 2


B. Literature Review ................................................................................................................................... 3


C. Market Access Provisions ...................................................................................................................... 3


II. Assessing the Commitments: Focusing on Agricultural Goods ........................................................... 5
A. Good commitments are extensive .......................................................................................................... 6


B. Concentrated Industry Focus in Agriculture ............................................................................................ 6


C. Market Access Commitments for Agriculture ......................................................................................... 7


1. Rules of Origin .................................................................................................................................. 8


2. Tariff Rate Quotas in the TPP ............................................................................................................ 8


3. Safeguards and Other Market Protection Mechanisms ..................................................................... 9


III. The Trans-Pacific Partnership in Practice: A Series of Case Details ............................................... 11
A. Selected agricultural goods .................................................................................................................. 12


1. Mineral water .................................................................................................................................. 12


2. Pumpkins ....................................................................................................................................... 12


3. Frozen red salmon .......................................................................................................................... 13


4. Avocados ....................................................................................................................................... 13


5. Beef ............................................................................................................................................... 14


6. Rice ................................................................................................................................................ 14


7. Tomato ketchup ............................................................................................................................. 15


7.1. Tomatoes ................................................................................................................................ 15


7.2. Vinegar ................................................................................................................................... 16


7.3. Sugar and substitutes ............................................................................................................. 16


7.4. Rules Of origin (RoO) for ketchup ............................................................................................ 17


7.5. Value chain scenario: Chilean ketchup Ltd. .............................................................................. 17


IV. Trade Facilitation .................................................................................................................................... 19
A. SPS and TBT ....................................................................................................................................... 20


B. Services .............................................................................................................................................. 20


C. Investment ........................................................................................................................................... 22


D. E-Commerce Provisions ...................................................................................................................... 24


V. Trans-Pacific Partnership Ratification Status Update ......................................................................... 25


VI. Relationship with Multilateral Trading System .................................................................................... 29


VII. Conclusions ........................................................................................................................................... 35
Endnotes ........................................................................................................................................................ 37


Appendix ........................................................................................................................................................ 41




Tables


Table III.1: US Ketchup Tariffs ......................................................................................................................... 15


Table III.2: Chilean Ketchup Ltd.’s costs ........................................................................................................................... 18


Table IV.1: Non-conforming measures for agriculture and services incidental to agriculture ............................. 24


Figures


Figure III.1: Tariff schedule - Mineral water ....................................................................................................... 12


Figure III.2: Tariff schedule - Pumpkins ............................................................................................................ 12


Figure III.3: Tariff schedule - Forzen Red salmon ............................................................................................. 13


Figure III.4: Tariff schedule - Avocados ............................................................................................................ 13


Figure III.5: Japan’s agricultural safeguard measure for beef ............................................................................ 14


Figure III.6: Tariff schedule - Tomato ketchup .................................................................................................. 15


Figure III.7: Tariff schedule - Tomatoes ............................................................................................................ 15


Figure III.8: Tariff schedule - Vinegar ................................................................................................................ 16


Figure III.9: Tariff schedule - Fructose syrup .................................................................................................... 16


Figure III.10: Tariff schedule excluding Mexico - Fructose syrup ...................................................................... 17


Figure III.11: Chilean ketchup Ltd’d costs ....................................................................................................... 18


VIEWING THE TRANS-PACIFIC PARTNERSHIP AGREEMENT THROUGH A LENS OF AGRICUTUREvi




EXECUTIVE SUMMARY


The Trans-Pacific Partnership (TPP) trade agreement will be one of the most consequential trade agreements
in twenty years, on par with the North American Free Trade Agreement (NAFTA) or China’s entry to the World
Trade Organization (WTO).1 The TPP is deeper and broader than other agreements, containing 30 chapters
that bind 12 member countries (Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru,
Singapore, United States and Vietnam) together in ways that are often covered in less depth or are even carved
out completely.


Most the TPP takes effect immediately. As discussed in greater detail below, roughly 90 percent of all tariffs fall
to zero on the date of entry into force of the agreement. All of the services and investment provisions kick in
immediately. Much of the remainder of the agreement’s rule book also becomes active from the first day, with
some flexibility for some of the rules in areas like intellectual property rights protections for countries like Vietnam.
Once the TPP has been fully implemented, nearly all of the tariffs will be at zero for all of the TPP members moving
goods between markets in the agreement.


These provisions apply even to sensitive items like agriculture. The TPP could dramatically reconfigure supply
chains in food and processed food items in ways that past trade agreements did not. The deep and broad
commitments in the TPP sets up some interesting new dynamics. It is likely to exacerbate tensions in the global
trading system that fall most acutely on the smallest, poorest states as companies increasingly “vote with their
feet” and shift production, sales and services into TPP member markets and leave behind non-member markets
in the region.


EXECUTIVE SUMMARY vii






Introduct ion


I




A. ECONOMIC SIGNIFICANCE
The Trans-Pacific Partnership (TPP) trade agreement
brings together 12 countries: Australia, Brunei,
Canada, Chile, Japan, Malaysia, Mexico, New
Zealand, Peru, Singapore, United States, and Vietnam.
The deal spans three continents across the Pacific
with members at diverse levels of current economic
development. Together, TPP members account for 40
percent of global trade.


Assessing the economic significance of the TPP is
difficult. The agreement was completed in October
2015. The texts were released in November 2015
and the legally scrubbed texts and schedules were
made public in late January 2016. The 30 chapters
in the legal texts run to 622 pages and the various
schedules add more than 5,000 pages. Many TPP
parties also signed more than 100 bilateral side letters.
Totaling up the economic impact of an agreement of
this magnitude, with overlapping and interlocking
commitments is not easy. The start date is unclear,
since ratification procedures are not finished yet.


Nevertheless, some experts have weighed in with
estimates of the economic impact. The most
keenly awaited modeling was released in late May
2015, when the United States International Trade
Commission, USTIC, released its report on the TPP.
The USTIC is an independent federal agency charged
with producing a report for Congress within 105
days of TPP signing.  The agency reviewed the TPP
agreement, other analyses of the TPP and projected
its impacts on the United States.


The report’s findings were modest overall.   It found
that by year 15 of the TPP, America’s income would
be 0.23% higher, imports and exports would both be
about 1% higher, and there would be 128,000 more
US full-time jobs than there would be without the TPP.
American agriculture and services would benefit most,
while manufacturing, energy and resource sectors
would be 0.1% lower than without the TPP.


While the US already had FTAs with most TPP
countries, the report predicts exports to increase
18.7% to the five countries (Brunei,  Malaysia, New
Zealand Vietnam, and most significantly, Japan) where
it did not have prior free trade agreements. Trade with
the other six nations would increase 2.4% as a result of
further improvements to existing FTAs.   The TPP can
only come into force if the United States is included
(along with at least Japan and four other parties). 


The US trade deficit is projected to increase by
$21.7 billion due to the TPP, though this rests on the
assumption that there is a fixed ratio between GDP
and the size of the trade deficit, i.e. the deficit grows
because GDP is higher.


The report used a computable general equilibrium
model, known as GTAP, to predict the economic
outcomes. This model allows large variegated
databases that should lead to more accurate results
than simpler economic models used in the past. But
USTIC’s model also included certain assumptions:
The US economy is operating at or close to full
capacity (long-run aggregate supply). Thus the TPP
will reallocate resources from less liberalised to more
liberalised sectors. (p73) All spillover effects are
ignored, particularly the likely removal of non-tariff
barriers by non-TPP members. (Note that these are
included in an important report released by PIIE.)    It
does not assume that US firms will become more
competitive due to the TPP (p45)


While some non-tariff measures were included, the
modeling omits many that were difficult to quantify. This
cautious approach may suggest an underestimation
of effects. It also ignores spillover effects resulting from
other countries’ actions following TPP implementation.


Early reactions to the report varied. Many US
industry groups welcomed it. The American
National Association of Manufacturers used it as an
opportunity to restate the importance of the other 27
chapters, beyond just tariffs reductions,  especially
improvements in transparency, fair competition and
intellectual property (IP) laws among trading partners.2
Peter Petri and Michael Plummer, authors of important
calculations of economic benefits from TPP, praised the
ambition of USTIC’s report but found it too cautious.3
Economist Jared Bernstein made a similar point:
the overall economic impacts may be negligible, but
there will be significant changes for some industries
and changing regulations in other countries.4 The ITC
report was congressionally mandated, so it should
come as little surprise that was US-centric, aimed at
members of Congress who need impartial information
on the TPP, and have elections to fight.


With the ITC report out, other academics, particularly,
will be eagerly sharpening up pencils to take aim
directly at the assumptions or conclusions of the 792
pages report. In relatively short order, new economic
projections should be forthcoming for the TPP
agreement. Hopefully, many of these will be based


VIEWING THE TRANS-PACIFIC PARTNERSHIP AGREEMENT THROUGH A LENS OF AGRICUTURE2




on the texts and schedules of the deal with more
attention paid to the non-tariff aspects (which are, of
course, considerably harder to quantify and model but
which are also likely to bring much greater benefits).


B. LITERATURE REVIEW
The legal texts of the TPP were released on 26 January
2016. Considered one the most ambitious FTAs in
recent memory, TPP has drawn significant attention
from scholars, researchers and institutions. A large
number of publications have been done over the years
even before the legal text was released to estimate
and analyze potential effects of TPP. In general, these
works either discuss the general impact of TPP on the
whole economy or focus on a narrower portion of the
agreement such as a country or a sector.


As Appendix 1 shows, some of the most important
broad-brush works are Petri and Plummer (2016),
Lawrence and Moran (2016), Schott et al. (2016),
and Elms (2014, 2014, 2015 and 2016). There are,
on the other hand, more publications with a narrow
emphasis. A range of country-specific articles include
O’Neil and Rachel’s on Australia (2016), Vo Tri Thanh’s
on Vietnam (2015), Vergara et al.’s on Chile (2016),
Chen et al.’s on Malaysia (2016), Sosnow et al.’s on
Canada (2016), Narayanan et al.’s on India (2016),
Ortiz and Turenna Ramirez’s on Mexico (2016), Gault
et al.’s on New Zealand (2016) and a few works on
USA such as USITC report (2016), Congressional
Research Service (2015, 2016) and Elms (2015).


There are also other articles that analyze different
sectors under TPP effect. Many of these articles focus
on public health and medical topics such as Mitchell et
al. (2016), Lee et al. (2016), Beard (2015) and, Labonté
et al. (2016). Others analyze various sectors such as
Horton et al.’s on intellectual property (2016), Herzfeld
and Mindy’s on government regulation and taxation
(2016), Sutton and Trent’s on labor and employment
(2016), Cheong and Takayama’s on public welfare


(2016), Fleury and Marcoux’s on State-Owned
Enterprises (2016) and Henckels and Caroline’s (2016)
and Nottage and Luke’s (2016) on investment.


However, only one other work has been done on
the agriculture sector after the release of TPP texts
and schedules–a chapter in Peterson Institute for
International Economics publication (February 2016).
Being aware of the gap and the importance of
agriculture in most TPP countries, this paper largely
attempts to fill this critically important missing link.


C. MARKET ACCESS
PROVISIONS


Assessing the overall impact of the TPP is complicated.
Even tracking market access for goods is difficult, as
the provisions that affect trade in goods can be found
throughout the entire agreement. In such a deep and
broad set of commitments, member states included
provisions in various locations that may dramatically
affect the ability of goods producers to access markets
in different member countries. As an example, some
aspects of the e-commerce chapter may have an
impact on firms that do not currently view themselves
as e-commerce participants. Provisions in the trade
facilitation chapter may make it easier or harder for
some products to cross member market borders than
Chapter 2 on trade in goods suggests.


To narrow down the scope of assessing the impact of
the TPP, this paper focus attention on one sector—
market access for agricultural products. Doing
so helps keep the context for assessment more
manageable. It also brings into sharp relief the
paradox at the heart of the TPP project—on the one
hand, some of the most substantial benefits found
in the entire agreement can be found in agricultural
products and, on the other, food remains subject to
some of the most complicated provisions in the deal
with the least progressive elements overall.


I. INTRODUCTION 3






Assessing the
Commitments:


Focusing on
Agricultural


Goods


II




A. GOOD COMMITMENTS ARE
EXTENSIVE


The TPP commitments for goods are complex and
are contained in multiple locations in the agreement.
Chapter 2: National Treatment and Market Access
for Goods sets out the specific regulations to be
followed by member governments for trade in goods.
This chapter also contains a section specifically on
agricultural trade (Section C). The annexes for the
chapter include: 2-A on notifications by members on
national treatment and import and export restrictions;
2-B on remanufactured goods for Vietnam; 2-C on
export duties, taxes and other charges for Malaysia
and Vietnam; and annex 2-D that outlines in exhaustive
detail the tariff elimination schedules by each individual
member country.5


Other elements of the TPP that apply to trade in
goods can be found in many other locations. In an
agreement that stretches for thousands of pages,
relevant or important aspects to a given industry or
firm can literally be found sprinkled anywhere. The
legislative and regulatory changes needed at the
domestic level to bring the TPP into implementation
are critical, since many of the TPP provisions are more
like guidelines than specific instructions.


Within the TPP texts, the commitments on tariff
reductions cannot be read and understood without
a close focus on the accompanying rules of origin
(ROO). Firms that do not meet the ROOs for a specific
product cannot qualify for the lower tariffs on offer in
the TPP.


The TPP uses product-specific ROOs—for each and
every tariff line, there is a matching ROO. This is different
from many other trade agreements, particularly in
Asia, where ROOs are often blanket rules (as long as
40 percent of the content, for example, comes from
participating members, the products qualify for tariff
preferences).


Other goods rules can be found in the trade facilitation
chapter (5) that covers the faster, smoother (and
hopefully cheaper) movement of goods over borders.
As discussed in greater detail below, Chapter 7 deals
specifically with food and food safety (Sanitary and
Phytosanitary) although the chapter does not go very
far in writing new standards for the industry as the gaps
were quite substantial between members. Instead, the
SPS chapter and the Technical Barriers to Trade (TBT)
chapter (8) mostly cover provisions for transparency


in creating rules: procedures for how new regulations
should be communicated, requirements for rules to be
based on science, pressure on members to eliminate
duplicative testing requirements, and the timelines
and public comment periods that should be followed
if possible.


Goods are also addressed in other areas. While
services are normally assumed to be divorced from
trade in goods, the two are intertwined. An increasing
proportion of the value of a manufactured good can be
found in services. The TPP opens services dramatically
across the 12 members, making it much easier for
companies to operate goods and, particularly, supply
chains across the region. Investment is also extremely
important to goods companies. E-commerce rules
matter, even to firms that do not seem themselves as
operating in this space today. In short, most of the
TPP agreement is relevant to the goods sector.


B. CONCENTRATED INDUSTRY
FOCUS IN AGRICULTURE


The TPP is a wide, deep and broad agreement, with
interlocking commitments across 30 chapters that can
make it difficult to determine with certainty the impact
of the agreement on specific sectors. Overall, the
agreement is likely to contain many benefits, especially
in services and investment. But the commitments in
goods are less progressive. Within goods, many of
the agricultural pledges are the least ambitious of all.


One of the reasons, perhaps, why the goods
commitments are the least progressive parts of the
overall agreement may be that interest groups are
most organized for goods. Since trade negotiations
have been underway for goods and have been steadily
reducing tariffs for decades, the ground has been very
firmly covered in all member countries. The TPP is
a bit different than most past trade agreements in its
coverage of even highly sensitive goods sectors like
all parts of agriculture, but the majority of items under
discussion have been aired somewhere previously.


Many of the goods sectors have industry associations
and many have had long histories of working together.
Many even had trans-national connections across
TPP member countries. Thus, firms and farmers
that might be affected by TPP rules or commitments
in goods were more organized and vocal than firms
that might be affected in newer areas like state-owned
enterprises or government procurement or even
services.


VIEWING THE TRANS-PACIFIC PARTNERSHIP AGREEMENT THROUGH A LENS OF AGRICUTURE6




Agriculture is unique, perhaps, in most countries in
having an outsized political influence relative to their
overall numbers. This is certainly true for TPP member
countries where the total number of farmers in some
specific sectors can be quite small. For instance, the
total number of sugar producers in the United States
is about 700 farms, while Australia has roughly 4,000.6
In spite of relatively modest numbers, the extent of
sugar protections granted as shown further below, in
the TPP is quite substantial.


C. MARKET ACCESS
COMMITMENTS FOR
AGRICULTURE


Despite conditions that favored a limited outcome,
negotiators in the TPP were still able to obtain more
impressive results in agriculture than nearly any other
existing agreement. Nearly all tariffs cut to zero and
many do so on entry into force (EIF). On the first
day of the agreement, 99 percent of agricultural tariff
lines into New Zealand will drop to zero, all but one
line7 will become duty free for Australia, 92 percent
of Malaysian tariffs are eliminated, 31 percent of
Vietnamese lines drop, and 32 percent of Japan’s tariff
lines also disappear.8


Many of the tariff reductions are substantial as well,
including some that will be duty free on EIF—drops
from 15%, 18% or even 40% are not uncommon.
The products chosen for zero tariffs are also not
automatically items that are never traded. For
example, many high value fresh or processed fruits
and vegetables that are currently subject to high tariff
levels that are produced across TPP members are
becoming tariff free on EIF.


Some of the tariff drops are even greater. Mexico is
dropping tariffs of over 200% on many types of pork
products to 0 on entry into force or in as little as
five years for TPP firms.9 The tariff schedules for all
12 members are available for review along with the
complete TPP texts.10


Market access improvements for most goods are
immediate (nearly 90 percent to zero on EIF). In the
remaining ten percent or so of tariff lines, the majority
of these products also fall to zero and most do so
in a relatively short time frame. Most drop within as
little as three years, and a few in five years. Goods
negotiations were largely about which product lines
fit into the first category subject to immediate drops,


which could be phased out, the specific timelines that
could be used, and any mechanisms for protection
along the way.


There are tariff lines that have phase outs that last
longer than five years. Most of the products with the
longer phase out periods are agricultural.11 As an
example, many cheeses into Japan (that do not have
TRQs as discussed below) have staging categories of
16 years. This means that tariffs on these products will
drop, sometimes from fairly high levels like 40%, in 16
even cuts. Sometimes the cuts are long even for low
original tariffs, making it complicated for companies to
work out the specific benefits for firms in a given year.
As an example, some beef products from Japan into
the United States are currently subject to 4% tariffs.
This is being cut down over a 10 year time frame. The
tariff reductions, therefore, drop annually from 4% to
3.6% to 3.2% to 2.8% and so forth until they reach 0
in year 10. For a firm, tariff cuts are always welcome,
of course. But the benefit of a tariff reduction from
2.8% to 2.4% is extremely modest. During the same
period, exchange rate fluctuations, to name just one
issue, could easily offset whatever tariff gains are on
offer.


Most of the tariff reductions take place in even
installments—starting at entry into force and
continuing in regular steps afterward over a clear
schedule until completed. But some tariff cuts for
specific products may contain a tariff cut at the outset
(sometimes modest) that holds for a period of time
and then comes down again only right at the end of
a (usually) long phase out period. These variations
in tariff reductions and schedules were all subject to
often-heated negotiations across many rounds and
intersecessional meetings of officials across the years
of negotiations.12


One complicating factor in negotiating market access
in the TPP from the beginning was the promiscuous
nature of the participating countries. Nearly all
members had existing free trade agreements between
at least some of them. Some had multiple agreements
binding them together in different ways. Many of these
existing deals had different types of commitments. All
covered trade in goods. Hence TPP officials had to
figure out how to offer access to each other that took
existing commitments into account.


The end result in the tariff schedules for each of the 12
TPP members is not as bad as some had feared. In
most cases, TPP commitments went beyond existing


II. ASSESSING THE COMMITMENTS: FOCUSING ON AGRICULTURAL GOODS 7




FTAs by granting lower tariff rates or greater quota
access. By default then, the TPP granted the best
market access and existing FTAs did not need to be
referenced at all.13 In instances where existing FTAs
provided a specific member with improved access
off the TPP provisions, this had to be noted in the
schedules.


In practice, this difference largely shows up in a few
country schedules. The tariff schedules for most of
the participating countries shows the preferences
granted to all TPP members. The primary country-
specific variations are found in the TRQs for agricultural
products, discussed in more detail below.


The US has a more complicated tariff schedule overall,
which breaks out commitments for specific products
in some areas by country. As an example, chilled or
frozen swordfish fillets are broken into two categories.
Brunei, Japan, Malaysia, New Zealand, and Vietnam
(all countries that did not have existing FTAs with the
Americans) were given ten years for the 6% tariff to
be reduced. But Australia, Canada, Chile, Mexico,
Peru and Singapore already receive duty-free entry for
swordfish and this was preserved in the TPP.


1. Rules of Origin
The reduction in tariffs is important, but not every
product crossing the border into a TPP member
country will automatically qualify for these reduced
duty rates. The TPP has a single set of rules of origin
(ROOs) that apply to all members. The ROOs are
all product-specific. Each tariff line has a specific,
matching ROO that must be met in order to qualify
for the tariff reduction as indicated in the TPP tariff
schedules.


Hence TPP goods access has to be read with a careful
eye towards both the tariff reductions and the ROO
commitments for the same product. It is possible
that duty free access promised in the agreement will
be easy or completely impossible for companies to
use. It may very well be the case that companies
will need to shift current sourcing patterns, especially
for processed agricultural products, to ensure that
finished goods meet the ROO and qualify for tariff
reductions into TPP member markets. As always,
TPP benefits apply only for goods being shipped into
TPP countries.


The TPP uses “wholly obtained” and “substantial
transformation” as the two principle criteria to
determine origin of goods. Most agricultural products


are wholly obtained, but processed food producers
are keenly interested in the rules for transformation.


For substantial transformation, the TPP allows three
different calculation methods:


(i) A general Regional Value Content (RVC) Rule,
ranging from 30% to 55% content value, de-
pending on the method of calculation (Focused
Value Method, Build-Down Method or Build-
Up Method);


(ii) Change in Tariff Classification Rule: Requires
that for the final good to qualify for preferences,
it has to be classified under a different tariff cat-
egory (usually at 4 or 6 digit level) as compared
with the original inputs; or


(iii) Process Rule.14


For certain tariff lines, businesses may opt to use either
one of the three methods to determine origin. For
some other tariff lines, only one option is specifically
allowed. The TPP Chapter 3 outlines the specific
methods for calculating origin under each method.


Of particular importance to companies, the TPP does
allow cumulation across members—this is one of
the biggest benefits of using a regional arrangement
instead of a bilateral trade deal. Firms can add up
or “cumulate” the originating content from a wider
set of countries to reach thresholds, particularly for
meeting RVC calculations.15 The TPP also allows
firms to include 10 percent of the content of products
to originate outside the TPP (a 10% de-minimus
threshold) without violating RVC or CTC.16


2. Tariff Rate Quotas in the TPP
From the earliest days of negotiations, it was clear
that some very sensitive issues in agriculture were
going to prove problematic. These areas, like dairy,
beef, and sugar, have always been hard to handle.
Most agreements simply carve them out completely.
But TPP officials had insisted that no lines could be
excluded from the agreement.


Aggravating the solution to these issues was the
inclusion after 2 years of negotiations of Canada and
Mexico to the list of participating countries, as both
also have strong sensitivities in dairy and sugar. Once
Japan got into the negotiations a year later, it was also
obvious that some new agricultural problem areas
were going to be added to the list. The Japanese
government had a list of five “sacred” items from the


VIEWING THE TRANS-PACIFIC PARTNERSHIP AGREEMENT THROUGH A LENS OF AGRICUTURE8




beginning: rice, wheat, beef/pork, sugar and dairy.
If the list covering these five items had contained, in
fact, just five items, the outcome might have been
more easily managed. However, the Japanese split
rice alone into more than 66 tariff lines and keeping so
many lines out of the agreement was not going to be
possible.17


The solution to many of these problematic areas for
agriculture was the continued use of tariff rate quotas
(TRQs) in the TPP. TRQ issues might have been
handled differently. In fact, not all TPP members went
down this path and most avoided using TRQs at all.
A TRQ assigns two tariff rates to products. The first,
lower, rate applies to a certain volume of products,
say 50 tons at 10%. The second, out-of-quota rate
applies at the 51st ton and may be set at 50%.


TPP members have always claimed to be creating a
“high quality, 21st century agreement.”18 A genuinely
high standard agreement could have said, “Every
product will have tariff cuts on EIF. For products with
TRQs, the TRQ in-quota should fall to zero. Over
time, the amount of the quota should be lifted. The
out-of-quota tariff rate should also fall. In time, the
TRQ will be abolished, as both rates will be 0 and all
quantitative limits will be abolished.” As the TRQs are
largely in highly sensitive sectors, the end point might
have been set at a distant date, but the general high
standard could have been maintained while ensuring
sufficient time for transition for domestic industry. The
point of the agreement, after all, is to encourage more
open trade between partners.


This was not done across the board in the TPP. Many
of the tariff lines that contain TRQs do not result in new
market access for all TPP partners. The tariff rates
do not really change or the quotas do not change. In
some circumstances, TPP parties simply shifted the
quota allocations from one party to another, like for
cake mixes or wheat or malt.


Some of the TRQs are embedded within the Annex 2D
tariff schedules, like Vietnam’s commitments for sugar
or salt. Others are highlighted in separate schedules
in the TPP. Canada has included separate TRQ
documents for dairy products (like milk, cream, milk
powders, yogurt and buttermilk, whey powder, butter,
mozzarella and other types of cheese, ice cream),
eggs, chicken and turkey. Japanese TRQ information
covers items like wheat products, barley, shredded
cheese, butter, milk powders, cocoas and chocolates,
oils, evaporated and condensed milks, coffee and


teas, candies, sugars, rice, and whey. Malaysia has
several TRQs as well, including for live poultry, some
pork products, milk, and eggs. Mexico has TRQs on
dairy, butter, cheese, and palm oil with country-specific
allocations for sugar. The U.S. schedules for TRQs
runs to 54 pages and is, as with most things related to
the TPP, much more complicated than others. Finally,
Vietnam also has a separate TRQ document, but it
covers very different products—on used vehicles and
on unmanufactured tobacco.


To see where this all ends up, consider Japan’s
commitments on butter. Under TPP, the in-quota tariff
rate remains at 35% forever (or at least as far as the
current schedule can predict). Of course, the situation
is not so simple. The Japanese also tacked on an
additional charge that varies across the first ten years
for in-quota butter shipments. In the first year, the
tariff is 35% plus 290 yen/kg. This additional per kg
rate falls gradually, reaching 174 yen/kg in year 5, 29
yen/kg in year 10 and disappears completely in year
11 leaving only the 35% tariff rate for butter.


The quantity of the quota increases, but barely at all,
from 39,341 metric tons in whole milk equivalent in year
one to 45,898 in year six where it also never increases
afterward. The out-of-quota rate is unchanged.
Hence the highly competitive dairy producing TPP
countries will be fighting for an additional 6,000 or so
metric tons of in-quota butter over a six-year period
and sharing in the spoils of continuing to pay a 35%
tariff (plus an additional declining rate charge) for the
privilege.


3. Safeguards and Other Market
Protection Mechanisms


TRQs are being used to shelter some products from
competition. But this is not the only deviation from the
“gold standard” in goods commitments. Some tariff
levels never actually fall to zero. Cream cheese into
Japan, for example, remains at 26.8% forever. Some
beef remains at 9% (and subject to safeguards as
well). Shiitake mushroom tariffs stay 9.6%. Mexico
maintains high tariffs on coffee of either 10% or 36%
(depending on classification) from year 10 onwards.
Instant coffee is even higher at 42%.19


These tariff rates are an improvement, certainly, off the
current status quo. Beef into Japan without the TPP
is subject to 38.5% tariffs, so 9% is better. Given the
competitive strengths of some TPP companies, it is
likely that they will be able to take advantage of these


II. ASSESSING THE COMMITMENTS: FOCUSING ON AGRICULTURAL GOODS 9




new rates.20 However, 9% is not 0. Particularly for a
sector that has access to myriad ways of managing
competition within this agreement, it is deeply
disappointing that the tariff is also scheduled to remain
across decades.


The TPP also contains some safeguard mechanisms
for Japan and the United States. Both countries
identified and scheduled a list of products where higher
duties can be imposed if the level of imports surge
past certain levels. For example, the United States
maintains a safeguard on Swiss cheese from Australia
if shipments exceed more than 800 metric tons in
the first year then the US can reapply the MFN tariff


rate. Other American safeguards apply to different
specific dairy products from individual TPP countries
including a wide variety of cheeses from Peru. Japan
has extremely complicated commitments to protect
beef and pork, milk powders, fresh oranges, and race
horses (!) from import surges.


Some products also covered by a provision called
tariff differentials.21 For some products coming into
the United States, Japan and Mexico, companies
have to comply with an additional set of rules as well.
For the US, covered products include sugar and some
dairy.22 Japan scheduled some seafood and forestry
products.23


VIEWING THE TRANS-PACIFIC PARTNERSHIP AGREEMENT THROUGH A LENS OF AGRICUTURE10




The Trans-Pacif ic
Partnership in


Pract ice:
A Ser ies of


Case Detai ls


III




A. SELECTED AGRICULTURAL
GOODS


1. Mineral water
Eight of the 12 TPP members currently apply tariffs
for mineral water imports. On the day TPP comes
into force, seven countries – apart from Vietnam – will
remove tariffs for this product. Starting with remarkably
high rate for mineral water (40%), Vietnam will take
eight years to remove this tariff for other TPP members.


2. Pumpkins
Pumpkins are one of the more common vegetables in
the region. As can be seen from figure III.2, the tariff
rates applied for pumpkins range from 3% to 12% for
Chile, Japan, Mexico, US and Vietnam.


The USA has a more complicated tariff schedule for
pumpkins compared to other TPP countries. At EIF,
the tariff of 11.3% will be removed for eight countries,
while Japan, New Zealand and Vietnam have it
gradually reduced to 0% within 5 years.


Figure III.1: Tariff schedule - Mineral water (Percentage)


45


40


35


30


25


20


15


10


5


0


Base rate Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 Year 7 Year 8


Chile


Japan


Malysia


Mexico


New Zealand


Peru


United States


Vanuatu


Figure III.2: Tariff schedule - Pumpkins (Percentage)


14


12


10


8


6


4


2


0


Base rate Year 1 Year 2 Year 3 Year 4


Chile


Japan


Mexico


United States


Vanuatu


VIEWING THE TRANS-PACIFIC PARTNERSHIP AGREEMENT THROUGH A LENS OF AGRICUTURE12




3. Frozen red salmon


Red salmon imported to TPP countries are subject
to non-zero tariff rates in Chile, Japan, Mexico and
Vietnam. Under TPP effect, all of these tariffs will be
removed.


4. Avocados


Under TPP, five member countries will remove tariffs for
avocados on the day of entry into force, while Vietnam
and the USA will take 4 and 5 years respectively.


Figure III.3: Tariff schedule - Forzen red salmon (Percentage)


Chile


Japan


Mexico


Vanuatu


25


20


15


10


5


0


Base rate Year 1


Figure III.4: Tariff schedule - Avocados (Percentage)


25


20


15


10


5


0
Base rate Year 1 Year 2 Year 3 Year 4 Year 5


Chile


Japan


Malysia


Mexico


Peru


United States


Vanuatu


III. THE TRANS-PACIFIC PARTNERSHIP IN PRACTICE: A SERIES OF CASE DETAILS 13




5. Beef


Significant advances were made on meat and livestock.
Japan, Peru, Mexico and Vietnam substantially cut
beef and pork tariffs. This is good news for major
exporters Australia, New Zealand, Canada and the
USA who also see rising demand from a more affluent
Asia short of pasture, as well as complementary corn
and soybean demand.


However, the specifics are more variegated. Take beef
as an example. The United States and Canada are net
beef importers, but did not reduce restrictions much
because most of their domestic market is targeted
at higher-end products, and these producers sought
to avoid competition. The main TPP beef exporters
(Mexico and Australia) already have FTAs in place.


Japan, the world’s third largest beef importer (over
US$3 billion in 2014), will reduce tariffs for all beef
products from 38.5% to 9% over 16 years. This will be
significant, given that all of Japan’s beef imports come
from TPP countries. However, Japan has a lengthy
appendix detailing ‘agricultural safeguard measures’,
meaning that if beef imports exceed a certain annual
limit, a higher tariff (though still lower than MFN) will
apply. These are used for several agriculture goods by
various countries. With Japan’s beef imports forecast
to exceed 800,000 MT by 2019, around a quarter of
imports will incur higher tariffs.24


6. Rice
Rice exporters should realize significant potential
benefits from TPP as this free trade agreement will help
to liberalize access to rice market in most TPP countries
including those with high domestic protection.


Vietnam’s 40 percent tariffs on all types of rice will be
eliminated immediately when the deal comes into force.
Starting with the same high tariff level for most types
of rice as Vietnam, Malaysia will take 10 years become
duty-free. Malaysia is one of the largest rice importers in
Asia, so even a long tariff elimination schedule could still
result in potential benefits to TPP rice exporters. Similarly,
Mexico needs 10 years to cut tariff on long-grain rice to
zero from 20 percent rate while Chile agreed to eliminate
eight percent tariff on rice within 8 years. However, the
good news for broken rice exporters to Mexico is that
the 10 percent tariff rate will be removed immediately
under TPP effect. Even for US—a giant rice exporter—
tariffs for all kinds of rice will be eliminated immediately
for most TPP countries except Japan and Malaysia.


For Japan, rice remains one of the most sensitive
agricultural products to be protected by the government,
such as Japan’s rice production structure. Unlike US and
Australia’s structure with smaller number of big rice farms,
Japan has a huge number of tiny rice farms that are
geographically diffuse.26 However, under the TPP, Japan’s
tariff schedule for rice shows modest concessions when
the country has agreed to increase tariff-rate quotas
(TRQ) within 13 years for US and Australia.


Figure III.5: Japan’s agricultural safeguard measure for beef25


800,000


750,000


700,000


650,000


600,000


550,000


500,000


450,000


400,000 0%
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18


5%


10%


15%


20%


25%


30%


35%


40%


TPP TariffQuota (MT) ASM Tariff


VIEWING THE TRANS-PACIFIC PARTNERSHIP AGREEMENT THROUGH A LENS OF AGRICUTURE14




7. Tomato ketchup
Ketchup or tomato sauce is most associated with
Western fast food, but is consumed in all countries.
The USA is certainly the largest market, though Mexico,
Japan, Canada and Australia are all significant.


The main ingredients are tomatoes, vinegar and sugar.
Other flavorings such as onions, garlic, celery, salt and
pepper may be included though these items make up
a small proportion of the product.


The finished product will see all tariffs eliminated
immediately for all except Japan and Vietnam. In light


of this, the US Tariff Schedule changes differently for
other countries.


7.1. Tomatoes


Of the six countries with tomato tariffs currently in
place, four will remove them on day one of the TPP.
Vietnam and USA take four years to reduce their tariff
to 0%27.


The biggest producers by volume are China, India and
USA. Of TPP members, Mexico and Australia also
produce tomatoes28. It is a relatively labour intensive
crop so favours countries with lower labour costs.


Table III.1: United States’ ketchup tariffs


US Ketchup Import Tariff Base rate
(%)


Year 1 Year 2 Year 3 Year 4 Year 5


- for Japan 6 4.8 3.6 2.4 1.2 0


- for Vietnam 6 4 2 0 0 0


- for other TPP countries 6’ 0 0 0 0 0


Figure III.6: Tariff schedule - Tomato ketchup


Figure III.7: Tariff schedule - Tomatoes


30


25


20


15


10


5


0


Base rate Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 Year 7 Year 8 Year 9 Year 10 Year 11


Canada


Chile


Japan


Malaysia


Mexico


New Zealand


United States*


Vietnam


20


15


10


5


0
Base rate Year 1 Year 2 Year 3 Year 4 Year 5


Canada


Chile


Japan


Mexico


United States


Vietnam


III. THE TRANS-PACIFIC PARTNERSHIP IN PRACTICE: A SERIES OF CASE DETAILS 15




7.2. Vinegar


Vinegar is relatively low value ingredient in ketchup.
This said, Vietnam and Mexico will see 20% tariffs
removed, albeit at different rates.


7.3. Sugar and substitutes


Sugar, in all its forms, is among the most sensitive
agricultural products. The TPP has a number of
complex schedules and definitions for it (see box
1). All TPP countries reduce the tariffs on raw sugar
cane, with varying sub-definitions, at different rates for
different countries. The precise forms of sugar used,


and the amount of manufacturing each producer may
apply to a sugar, will vary.


Heinz, the market leader in Europe and the USA,
uses high fructose corn syrup (HFCS) in its ketchup.
Producers outside the US may use normal refined
sugar. This reflects current corn subsidies to US
producers and sugar import tariffs making HFCS
more competitive in the USA. This also explains why
Coca-Cola is made using HFCS in the USA and sugar
in Mexico. The quid pro quo is eye-watering fructose
syrup tariffs in Mexico (210%), though under the TPP
these will steadily fall to 0% after 15 years.


Figure III.8: Tariff schedule - Vinegar


Figure III.9: Tariff schedule - Fructose syrup


Canada


Chile


Japan


Malaysia


Mexico


United States


Vietnam


175


200


150


125


100


75


50


25


0


Base rate Year 1 Year 2 Year 3 Year 4 Year 5 Year 6


Australia


Canada


Chile*


Japan**


Malaysia


Mexico


Peru


United States***


Vietnam


175


200


225


150


125


100


75


50


25


0


Yea
r 1


Bas
e ra


te
Yea


r 2
Yea


r 3
Yea


r 4
Yea


r 5
Yea


r 6
Yea


r 7
Yea


r 8
Yea


r 9
Yea


r 1
0


Yea
r 1


1
Yea


r 1
2


Yea
r 1


3
Yea


r 1
4


Yea
r 1


5


VIEWING THE TRANS-PACIFIC PARTNERSHIP AGREEMENT THROUGH A LENS OF AGRICUTURE16




Box 1: It’s Complicated, Sugar


The largest sugar producers among TPP countries are USA, Mexico and Australia. Between them they account for 80% of
sugar exports from TPP countries, though the US does little sugar exporting. (PIIE).


Bruce is an Australian beet sugar farmer, who has so much sugar he decides to sell some to the Americans. America uses
14 million metric tons (MT) of sugar per year so this should be easy.


Under the TPP, Australian producers may export an additional 60,500 MT of raw sugar to the USA per year, 0.5% of its
total sugar consumption. Any raw sugar beyond this amount is subject to a tariff of 33.9¢ / kg, double the world price.
Bruce may also export sugar derived products like syrup, but these are capped at 4,500MT / year. This is a larger quota
than was hitherto allowed, but is still relatively small, and much less than the Australians had hoped for. (http://www.cato.
org/blog/sugar-tpp)


Figure III.10: Tariff schedule excluding Mexico - Fructose syrup


7.4. Rules Of origin (RoO) for
ketchup


According to Annex 3-D (Product-Specific Rules of
Origin), for a ketchup product produced from non-
originating materials to be an originating product,
there should be:


“A change to ketchup of subheading 2103.20
from any other chapter, except from subheading
2002.90; A change to any other good of
subheading 2103.20 from any other subheading.”


[2002.90 -- Tomatoes prepared or preserved
otherwise than by vinegar or acetic acid including
tomato paste, tomato powder and others.]


In short, provided the ketchup is made in a TPP
member country and not made from tomato paste or


powder, it satisfies the rules of origin.


More generally, TPP’s rules of origin include
transparent procedures that promote compliance and
avoid unnecessary obstacles to trade. Certification
of origin can be completed by exporters, importers
or producers on the basis of they having enough
information required (article 3.21). Verification of origin
can be conducted after the good has been imported.
Refund of excess duties will then be paid after the
verification has been completed. (Article 3.27)


7.5. Value chain scenario: Chilean
ketchup Ltd.


The changing tariff schedules above show how value
chains in ketchup may change over the coming
years. The graphic shows a ketchup company with
a production facility in Chile. It is trying to expand into


25


30


20


15


10


5


0


Australia


Canada


Chile*


Japan**


Malaysia


United States***


Vitnam


Yea
r 1


Bas
e ra


te
Yea


r 2
Yea


r 3
Yea


r 4
Yea


r 5
Yea


r 6
Yea


r 7
Yea


r 8
Yea


r 9
Yea


r 1
0


Yea
r 1


1


III. THE TRANS-PACIFIC PARTNERSHIP IN PRACTICE: A SERIES OF CASE DETAILS 17




the north American market, and sees an opportunity to
become competitive due to the TPP. Market research
shows that American and Canadian consumers prefer
the taste of corn syrup to sugar, so it alters its recipe
for exports to these markets. It is able to save 6% on
the input costs due to lower input costs, and finally
12.5% on the final import tariff to Canada.


Table III.2 shows Chilean Ketchup Ltd.’s changing unit
cost for a bottle of ketchup both domestically and for
export.29 While this example is hypothetical, it is clear


that costs can be reduced by over 12% purely through
tariff reductions.


Chilean Ketchup Ltd. may struggle to export to Japan,
where Japanese ketchup manufacturers are afforded
protection for longer, though they will still need to
import sugar cheaply enough to stay competitive.
Vietnam’s competitiveness will depend on access
to cheaper inputs, though the removal of tariffs on
ketchup for most of its markets will help.


Table III.2: Chilean Ketchup Ltd.’s costs (US dollars)


Cost pre-TPP Cost under TPP Export Cost pre-TPP Export under TPP


Logistics 1.50 1.50


Tomatoes 4.03 3.80 4.53 3.80


Sugar 0.42 0.40 0.48 0.40


Vinegar 0.21 0.20 0.24 0.20


Total 4.66 4.40 6.75 5.90


Figure III.11: Chilean ketchup Ltd’d costs


7


6


5


4


3


2


1


0


Inputs pre-TPP Inputs post-TPP Export pre-TPP Export post-TPP


Vinegar


Sugar


Tomatoes


Logistics


VIEWING THE TRANS-PACIFIC PARTNERSHIP AGREEMENT THROUGH A LENS OF AGRICUTURE18




Trade Faci l i tat ion


IV




For agricultural traders and other goods companies,
however, the rules for tariff reductions and ROOs
are not the only things that matter. The processes
and procedures for getting goods in and out of TPP
member countries are also important. Fortunately,
TPP rules for trade facilitation are likely to prove
extremely helpful for companies.


The TPP generally promotes efficient and transparent
customs procedures. Particularly important provisions
include the following:


• Expedited and consistent customs treatment
at all domestic entry points, including the use of
automated systems


• Self-certification of origin for selected companies


• Advance rulings to allow companies to get a ruling
from customs officials about tariff classification and
ROO determinations that will remain in effect for a
full calendar year


• Specific rules for express shipments and expedited
delivery processes to include 6 hour guidelines


• Pre-arrival processing and guaranteed release
within specific time periods


A. SPS AND TBT
While tariffs matter to farmers and agricultural
producers, some of the greatest barriers to trade
can be loosely lumped together under the heading
of non-tariff barriers. These include both sanitary
and phyotosanitary (SPS) restrictions and technical
barriers to trade (TBT) regulations. Such barriers run
the gamut from inconsistent testing procedures to
incompatible pesticide regulations to conflicting rules
for labeling products.


Early on in negotiations for the TPP, officials often
spoke with enthusiasm about a desire to achieve
regulatory coherence. While TPP Chapter 25 has
this title, most of the content of these discussions
was ultimately removed and put into the SPS and
TBT chapters instead. What remains in Chapter 25 is
mostly descriptions of how TPP parties intend to foster
future regulatory cooperation, increase transparency
in procedures and encourage contact points across
TPP members.30


The TPP parties attempted to address many of the
non-tariff and other regulatory barriers, but in most
instances, the gaps between the 12 member states


were simply too large to overcome in the negotiations.
Hence the rules put in place in the agreement might
be best regarded as a basic framework rather than
any true achievement of deeper regulatory integration.


For SPS, Chapter 7 requires that members create
health-based restrictions for trade in goods that are
based on science.31 The risk assessment systems put
into place to screen products must be built on a scientific
basis. The agreement refers to specific international
standards, including the Codex Alimentarius and
the WTO SPS agreement. Any shipments that are
stopped for SPS reasons have to be reported under
tight timelines, with a special consultation system put
in place between members for addressing SPS issues
and a special dispute resolution system just for such
concerns. Over time, the consultation mechanisms,
transparency procedures and recommendations
on equivalence may evolve into something more
meaningful or may not.


The TBT chapter is notable for agriculture chiefly for
three specific annexes. Annex 8-A covers wine and
distilled spirits rules in rather deep detail, including such
matters as details that can (and can not be) required on
labels and allowable certification procedures. Annex
8-F covers proprietary formulas for prepackaged
foods and food additives. The annex is quite brief
and basically says that member governments must
collect only information related to legitimate objectives
and keep such information confidential. Annex 8-G
on organic products is also brief and encourages TPP
parties to be transparent and consistent in regulations
regarding organic products.


B. SERVICES
While market access for goods in the Trans-Pacific
Partnership (TPP) remains subject to some exceptions
and complications, the TPP exceeded expectations
for the quality of the services commitments.  TPP
member states might have been expected to exclude
some services subsectors, but generally this did not
happen.  The services elements of the TPP may turn
out to be the most ambitious aspect of the agreement
overall.


Services are increasingly important to today’s
globalized economy.  It may not seem obvious that
agriculture and services are linked, but new research
suggests that services account for somewhere
between 30-70 percent of the total value embedded in


VIEWING THE TRANS-PACIFIC PARTNERSHIP AGREEMENT THROUGH A LENS OF AGRICUTURE20




supply chains.32  Failure to provide market access with
minimal conditions attached would have strangled the
efforts of many firms trying to compete across the
TPP. Services are also a critical mechanism for smaller
firms or companies in more remote, geographically
distant locations to plug into larger supply chains. 
Even micro enterprises can deliver services via
e-commerce platforms.


Trade in services (Chapter 10) is divided into 12
sectors and approximately 160 subsectors, ranging
from business services to construction to travel to
retail.  In many Asian free trade agreements (FTAs),
services commitments are woeful.  Members have
opted to keep many sectors and subsectors closed
to foreign participation or have opened only areas with
limited or even zero commercial importance. 


The TPP did not take the same approach, negotiating
on a negative list.  Companies should find it easier
to deliver services across member states, particularly
because the TPP does not allow, for example,
quantitative limits to be placed on services.  In other
FTAs, members frequently allow in foreign medical
clinics, but may limit the total number of such clinics
to one or two facilities.  Or caps may be placed on the
total number of employees or boards of directors.  In
the TPP, by contrast, foreign companies can deliver
services without having to have a representative office
or be a resident to serve the market.  The TPP requires
that members treat foreign service suppliers just like
local service suppliers.


Note that, mirroring World Trade Organization
(WTO) handling of services, financial services and
telecommunications have their own chapters in the
TPP.  Both have long been regarded as “backbone”
service sectors that warrant special handling.


Some TPP countries appear to have been extremely
cautious in their scheduling and to hedge against
potential problems and gain future policy space
by claiming a broad exception or non-conforming
measure (NCM).  Note that, for some TPP members,
these exceptions may not ever be used.  In other
countries, the NCM may not matter overly much,
as they are taken in areas of likely limited interest to
other members.  For instance, Japan requires that
persons in the motor vehicle disassembling repair
business must have a business in Japan.  Assuming
that electronic repairs do not count, it could be hard
to imagine how a person might disassemble a car
from overseas.  Individuals engaged in specifying


measurement instruments have a host of rules to
continue to follow in Japan.


For countries like Vietnam and Malaysia that have
never used a negative list before, the peeling off
restrictions exercise could have still left an extremely
long NCM list.  However, a glance at Annex 1 shows
that both members largely matched the ambition
levels of other partners.  For example, Vietnam (like
many other TPP member countries) will continue to
have some restrictions in place on foreign lawyers. 
Tour guides continues to be a sensitive area for some
members, with limited (or no) foreign access. 


An examination of the schedules also throws up some
surprises.  Vietnam has an odd rule that appears to
make it more difficult to open up a second (or more)
retail establishment, although the measure is meant
to expire within five years after the agreement takes
effect.  Services attached to agriculture, hunting and
forestry still require a local partner.  Major anniversaries
in Vietnam must be marked with local film screenings
only.  Canada has a surprising number of rules around
owning duty free shops.  Amusement park investors
can come into Vietnam, but only if they invest more
than US$1 billion.  Less than that and investors are
subject to onerous criteria that will likely to make it
impossible to build the amusement park of their
dreams.   


Other restrictions across TPP members could be
more problematic, including a host of rules around
broadcasting rights, some restrictions on services and
investment in energy or mining, and rules on internal
land and sea transport that can prevent TPP parties
from delivering these services. 


Over time, it is possible that some of these restrictions
will be relaxed.  In the meantime, if a country did not
schedule a NCM, it cannot easily create a new one to
block market access to TPP member countries in the
future. 


Many existing FTAs have specific provisions attached
to the services chapters that apply to the temporary
entry to persons supplying services. The TPP goes
beyond that in Chapter 12 on the temporary entry of
business persons which applies to persons engaged
in trade in goods, supplying services or conducting
investment activities. It is not entirely clear how the
provisions of Chapter 12 might change practices
on the ground in TPP member countries for service
providers or for business persons in other sectors,


IV. TRADE FACILITATION 21




since the chapter makes clear that immigration
rules will continue to apply and dispute settlement
provisions (mostly) cannot be used.


Particularly important services elements for agriculture
and food may be the opening of logistics and other
critically important supply-chain elements required
to create, store, pack, ship and deliver agricultural
products between markets. The TPP also opens
up retail sectors include not just grocery businesses
but also hotels and other final markets for agricultural
and food products. Larger agribusinesses may also
benefit from market opening in sectors like business
services such as accounting, legal services, marketing
and so forth.


In short, like other elements of the agreement, the
basic texts have to be read carefully with the country-
specific annexes.  While the TPP may appear to have
extensive carve-outs or broad exceptions in some
specific areas, these are actually significantly fewer in
number and cover a handful of subsectors that may
be viewed as commercially meaningful to some TPP
members.  Certainly, compared to other agreements
on services, the TPP may be setting the standard for
high quality in this area.


C. INVESTMENT
In Chapter 9, the TPP addresses a critical issue for many
firms:  setting out the rules of the game that apply to
foreign investors in TPP countries.  Currently, investors
can face a complicated thicket of regulations, shifting
rules, and informal practices that make it difficult or
even impossible to open and maintain businesses and
investments in some TPP member countries. 


The chapter aims to simplify and clarify the rules for
inward investment by TPP firms.  Doing so should
make it easier for firms to operate across TPP countries
and help unleash new growth for member countries. 
Most of the attention has been given to one aspect of
this chapter, Investor-State Dispute Settlement (ISDS),
but the rest of the provisions are likely to be much
more relevant and important to companies.


Covered TPP investments include: an enterprise;
shares, stock and other forms of equity participation
in an enterprise; bonds, debentures, other debt
instruments and loans;  futures, options and other
derivatives; turnkey, construction, management,
production, concession, revenue-sharing and other
similar contracts; intellectual property rights; licences,


authorisations, permits and similar rights conferred
pursuant to the Party’s law; and other tangible or
intangible, movable or immovable property, and
related property rights, such as leases, mortgages
liens and pledges.


The basic point of the chapter is to ensure that inves-
tors are granted greater certainty with fewer risks of
government action that could negate or destroy their
investments. Investors are also promised free transfers
of things like profits, dividends, proceeds, and pay-
ments from the investment in and out of the member
country.  Investors are also granted the ability to invest
without being subject to certain performance require-
ments, such as a possible demand that investors ex-
port a certain amount, or include a certain percentage
of local content, or transfer technology as a condition
for investment permission.  A prohibition on perfor-
mance requirements is particularly important in Asia,
where many FTAs continue to allow such practices.


The investment rules create opportunities for firms,
but are not a guarantee of success.  Nothing in the
chapter promises profits or will compensate investors
for normal business risks and losses. 


The agreement does spell out in detail what happens
when a TPP member government directly or indirectly
seizes property through expropriation (nationalization).
Government can, it should be emphasized, continue to
make policy in the public interest and render decisions
that could invalidate investments.  For instance, a
government can legitimately order the demolition of
shops if these stand in the way of land needed for
new roadways.  However, the TPP makes clear that
the government must follow certain policy steps prior
to expropriation and provide adequate compensation.   


In most of the rest of the TPP agreement, member
states are legally bound to follow the rules.  If they do
not, other member governments can challenge their
behavior, using the provisions in the dispute settlement
chapter.  Investors also have recourse to another
mechanism for ensuring compliance.  Section B of
the chapter spells out in detail the rules around ISDS
that allows investors to directly sue a government for
breach of the agreement (illegal seizure of property). 
The lengthy passages devoted to ISDS spell out in
detail how investors can claim arbitration to resolve
the dispute.


Investors, like all business owners, also have the right
to use domestic court procedures to resolve issues. 


VIEWING THE TRANS-PACIFIC PARTNERSHIP AGREEMENT THROUGH A LENS OF AGRICUTURE22




However, if the government seizes property, it is not
unreasonable to assume that some court systems
in some countries might not view the matters of the
case dispassionately or may hesitate before deciding
against their own government.  In these situations,
investors have the ability under the TPP to have the
matter dealt with by arbitration. Annex 9B spells out
in detail exactly what constitutes an expropriation for
the TPP. 


Just like the services commitments, understanding
TPP investment provisions requires carefully reading
the specific text with the rules that apply to all 12
parties and then sorting through the annexes.  Note
that Chapter itself contains several short annexes
in the text—several of which are country specific or
applicable to, for instance, Peru, Mexico or Canada.
Investors or potential investors will also need to
carefully review the country-specific annexes that list
all non-conforming measures (NCMs).  Just like the
services negotiations, investment commitments were
made on the basis of a negative list. 


The list of NCMs for investment also contains a range
of prohibited investments or restrictions on full access
for TPP members.  Some of these restrictions may be
problematic as the exemption can be deep and broad
while others are likely to be of limited commercial
significance. 


Canada, for instance, maintains the right to regulate
the sales and marketing for air transportation services,
as well as many rules around maritime services and
transport, and maintains a possible cultural exception
that allows the government to create rules or subsidize
books, videos, music and other forms of cultural
expression.  Malaysia reserved the right to review
materials for consistency with domestic decency
standards.


Japan has an odd commitment that allows it to create
any measure it wants for “telegraph services, betting
and gambling services, manufacture of tobacco
products, manufacture of Bank of Japan notes,
minting and sale of coinage, and postal services
in Japan.”   Vietnam bundled together potential
restrictions on the manufacturing of paper and buses
with more than 29 seats.   The complicated nature
of these commitments—combining things that


may not appear logically connected—highlights the
importance of reviewing the entire TPP document for
hidden barriers.


Malaysia has scheduled a broad exception for
Bumiputera policies.  These are the programmes that
provide advantages for Malay citizens, somewhat akin
to affirmative action programmes used elsewhere. 
While considerably less sweeping, several other TPP
members also lodged NCMs to protect native peoples.


In general, the investment provisions suggest that
new opportunities exist for firms in the agriculture
sector and, especially, the processed food sector, for
companies. Certainly, combined with new market
access and tariff concessions the stage is set for
shifts in supply chains across the region as companies
figure out how to take advantage of the rules to gain
competitive advantage over potential business rivals.
The opening of investment opportunities across TPP
member states makes it easier for firms to contemplate
setting up new or expanding existing operations in
member countries.


Agriculture and services incidental to agriculture is
among the sectors that are subject to NCMs in six TPP
members including Australia, Brunei, Japan, Mexico,
New Zealand and Vietnam. Most of the obligations
concerned are national treatment or performance
requirement. Table IV.1 shows in more details NCMs of
these countries for Agriculture and services incidental
to agriculture sector.33


For example, in Mexico, only Mexican nationals or
Mexican enterprises may own land for agriculture,
livestock or forestry purposes. In Japan, a foreign
person who has neither a domicile nor residence in
Japan cannot enjoy most of plant breeder’s rights or
related rights. Whereas in Brunei, foreign investors may
not utilize sites under the control of the Department
of Agriculture, Ministry of Primary Resources and
Tourism, for any agriculture and services incidental to
agriculture activities unless they comply with certain
requirements. Besides that, in Vietnam, foreign
investment to supply services incidental to agriculture,
hunting and forestry is only possible under business
cooperation contract, a joint venture or the purchase
of shares in a Vietnamese enterprise.


IV. TRADE FACILITATION 23




Table IV.1: Non-conforming measures for agriculture and services incidental to agriculture34


Country Obligations concerned Measure


Australia National treatment (Art. 9.4)


Most-favored-nation treatment (Art. 9.5)


Performance requirements (Art. 9.10)


Senior management and boards of directors (Art. 9.11)


Australia reserves the right to adopt or maintain any
measure to allow screening of investment proposals for
agribusiness above a certain value.


Brunei Performance requirements (Art. 9.10) Performance requirements, technology transfer, prefer-
ence for local goods; limit on foreign ownership; require-
ments for foreign investors at certain agricultural sites.


Japan National treatment (Art. 9.4) Prior notification and screening requirements for foreign
investment in agriculture, forestry and related services;
residency requirements for plant breeders.


Mexico National treatment (Art. 9.4) National requirements for land ownership for agriculture
or livestock purposes; foreign ownership restrictions in
enterprises owning such land; nationality requirements
for ownership of enterprise involved in pesticide spraying.


New Zealand National treatment (Art. 9.4)
Most-favored-nation treatment (Art. 9.5 and 10.4)
Local presence (Art. 10.6)
Performance requirements (Art. 9.10)
Senior management and boards of directors (Art. 9.11)


Establishment of marketing authorities with monopoly
marketing and acquisition powers for certain products;
New Zealand reserves the right to adopt or maintain any
measures regarding shares in certain dairy cooperatives;
any measures regarding WTO rights for tariff quotas,
countr7-specific preferences or other measures including
wholesale distribution rights for agricultural products.


Vietnam National treatment (Art. 9.4)
Most-favored-nation treatment (Art. 9.5)
Performance requirements (Art. 9.10)
Senior management and boards of directors (Art. 9.11)


Limits on firms’ legal form and ownership restrictions;
Vietnam reserves the right to adopt or maintain any
measure regarding investment in cultivating rare plants
and breeding rare wild animals


D. E-COMMERCE PROVISIONS
One innovative chapter in the TPP that is likely to apply
to a range of businesses now and, particularly, into the
future is Chapter 14 on e-commerce. The agreement
tries to set down some of the first rules across multiple
countries for the digital space. Because the concepts
were relatively new for a trade agreement, in many
areas, the regulations will ultimately be come to be
seen as light and in need of adjustment over time.


For example, the agreement carves out and defines the
scope of e-commerce rather tightly. The agreement
does not apply to government procurement and,
perhaps more problematic, does not apply to
financial institutions or cross-border financial service
suppliers.35 While customs duties cannot be applied
to electronic transmissions, governments can impose
internal taxes, fees, and other charges.36 Broadcasting
can be subjected to discriminatory treatment.


The TPP recognizes that consumer protection and
personal information protection is important to
governments, but does not include provisions for
achieving either objective. The agreement recognizes
that trading should be made paperless and electronic
signatures allowed. Information should flow across
borders without restriction as needed to allow the
conduct of TPP business to continue. Computing
facilities should not be required to be maintained
locally. Source code should not be required to be
transferred. The agreement is subject to dispute
settlement.37


Do note, however, that in most of the “harder”
provisions of the text, TPP parties also gave themselves
an exception clause—nearly every paragraph 3
undermines paragraph 2 by allowing governments
to adopt or maintain inconsistent measures provided
they meet legitimate public policy objectives that are
not arbitrary or unduly trade restrictive.


VIEWING THE TRANS-PACIFIC PARTNERSHIP AGREEMENT THROUGH A LENS OF AGRICUTURE24




Trans-Pacif ic
Partnership
Rat i f icat ion


Status Update


V




Negotiations on the agreement concluded in October
2015 and trade ministers from the 12 member
countries signed the agreement in February 2016. This
triggered the start of domestic ratification procedures.
All of the provisions in goods, services, investment
and the like will be for naught, if the agreement never
comes into force.


Each TPP member has different procedures needed
to bring the final TPP agreement into force. In general,
most members have limited specific requirements for
free trade agreement implementation.


Malaysia, as an example, has no specific requirement
for FTAs. Because the TPP became quite controversial
domestically, the government decided to allow
Parliament to hold a debate on the agreement prior
to proceeding with signature. Such a debate had
never been held on any other FTA in Kuala Lumpur.
The debate was held across a two-day period in late
January 2016, and, in the end, the Parliament agreed
that the government could sign off on the final texts
as negotiated.


This is not quite the end of the story in Malaysia,
however. To bring the country into compliance with
the agreement, the government identified 26 specific
pieces of legislation that need to be changed.
In addition, there are likely to be many different
regulations that will also need to be altered in whole
or in part to ensure that TPP rules do not conflict with
domestic policy. However, having gotten clearance
from Parliament on the TPP as a whole, the necessary
legislative changes should proceed smoothly.


Singapore and Brunei are much easier. Each
government will decide when it wants to “ratify” and it
will happen. The bureaucracies will make the necessary
changes to bring procedures into compliance. If laws
need to be adjusted, these changes will be submitted
to Parliament for approval and implementation.


More challenging are Australia and New Zealand,
where the TPP agreement has some domestic
opposition. In both, however, political parties from
across the spectrum likely have sufficient support
to push through the agreement in Parliament, even


VIEWING THE TRANS-PACIFIC PARTNERSHIP AGREEMENT THROUGH A LENS OF AGRICUTURE26




with an election forthcoming in Australia. Canada’s
new government has been coy about whether it
will support the deal. Since, in the end, the critically
important dairy sector was largely protected from
change, few legislative changes are forthcoming and
the TPP will likely prove less controversial in practice.


Japan’s ruling party had originally intended to push
through TPP ratification in the Diet ahead of important
elections in June 2016. However, the government has
been facing rising discontent and falling poll numbers.
The opposition party has been pushing back against
the TPP specifically. The Abe administration has
now said that consideration of the TPP has to be
postponed until an extraordinary session of Parliament
in late summer due to the earthquake in Kyushu in
April. This will, conveniently, put the session after the
electoral period where the ruling party is expected to
secure a larger majority in the Diet.


The real problem, of course, is what happens to the
TPP ratification in the United States. Unlike all the other
TPP countries, the Americans have to contend with a
serious approval process that includes Congressional
legislators. The TPP cannot come into force unless
both parts of Congress give explicit approval for the
agreement.


The approval is enshrined in a piece of domestic
legislation called Trade Promotion Authority (TPA). Put
simply, Congress delegates authority to the Executive
Branch to negotiate trade agreements. It would be too
difficult for 535 individual members of the legislature
to personally oversee negotiations, so they are to be
kept informed by the White House agencies, chiefly
the United States Office of the Trade Representative
(USTR). At the end of negotiations, Congress must
approve the necessary implementing legislation
needed to bring the agreement into force by a simple
majority vote in both houses without any amendments
to the texts.


Trade has never been especially popular in Congress.
Recent FTAs have passed with whisker-close margins.
Historically, the Republican party, which represents
business, has supported trade while the Democrats,
which represent labor unions, have largely not.


The TPP has arrived at a very challenging moment in
the United States. It is a Presidential election year when
voter turnout is at its highest levels. The Democratic
President Barack Obama is not eligible for re-election
and his vice-president is not running for office. All


435 members of the House of Representatives are
also running for office as well as 1/3 of the Senate.
Given the fairly even division between the two parties
in both chambers, the election may have serious
consequences for Congress with the possibility of a
flip from Republican control to Democratic control.


The leading candidates for President, including
Republican, Donald Trump, as well as both Democrats,
Hilary Clinton and Bernie Sanders, have all come out
against the TPP. Some of this may well be political
posturing, in an attempt to appeal to their respective
base voters. Voters in the primary season tend to be
more ideological than voters in the general election.
Candidates often shift towards the center once the
field narrows down to two.


Even if the anti-TPP rhetoric remains through the
election, of course, it could diminish rapidly after the
election is concluded in early November. It seems
quite clear that the Obama administration and leading
figures in the current Congress would like to push
through TPP approval in what is called the “lame duck”
period. This is the period between the general election
and the seating of the new President and Congress in
January 2016.


The advantage of the lame duck is that it has no
consequences for members of Congress. Many
members will never face voters again—they are
retiring or have lost elections. The rest have already
won re-election and will not face voters for at least two
years. Many politically unpopular things have been
addressed in the lame duck period over the years.
Hence, the TPP might also be voted on in this period.


The TPA legislation has specific timelines for bill
consideration embedded within it, but Congress could
proceed extremely rapidly with approval of the TPP if
it wanted to do so. USTR has already prepared all the
necessary implementing legislation and Congress staff
members have quietly started the mark up sessions
needed.


If the lame duck is missed—perhaps because the
incoming President or new Congress do not want to
ruin a “honeymoon” by pushing through a major new
trade bill directly after an election when many millions
of voters have expressed strong opposition to trade—
then what might happen? It will depend, of course,
on the composition of the new Congress and on who
becomes the next President. Another point to watch
is who will be the next USTR, since it takes time for a


V. TRANS-PACIFIC PARTNERSHIP RATIFICATION STATUS UPDATE 27




new person to get familiar with the complexities of the
TPP. If the agreement is not approved before the end
of 2016, it gets harder to predict, but could be taken
up in late 2017 or early 2018 instead.


Given the uncertainty around when, exactly, all
members would complete domestic procedures,
the TPP texts provided three possible methods for
achieving entry into force.38 The first and easiest
method for TPP EIF is to have all 12 countries finish
domestic procedures within 2 years of signing the
agreement. Within 60 days of the last approval, the
agreement automatically enters into force. 


If the Americans managed to approve the TPP in the
lame duck before the end of 2016,39 the remaining
members could relatively quickly conclude their own
ratification procedures. Most are simply waiting for
the United States. Hence, EIF could be some time in
2017.


But if the United States struggles to get the agreement
approved quickly in Congress, or if not all 12 members
can get their own domestic approval procedures
completed, the TPP provides a second option for
triggering entry into force. Under option 2, if all 12
parties have been unable to commit to the agreement
at the domestic level inside of 2 years, the agreement
can still come into force if at least 6 members are
ready. 


However, this comes with a catch—because TPP
officials were worried that either the United States
or Japan would not get the agreement through their


legislators and bureaucracies for approval, option
2 also requires that both countries must be among
the six (or more) countries ready to move ahead to
implementation. Hence, option 2 really means that,
provided the United States and Japan can join up with
at least 4 other good-sized members by the end of a
two-year period, the agreement can proceed and the
TPP will enter into force automatically in April 2018.


But what if either Japan or the United States are not
finished with domestic procedures within 2 years? 
Then Option 3 kicks in, under which the agreement
can come into force within 60 days of the last one
signing the agreement (along with the other major
party and at least 4 more members). 


The TPP agreement, therefore, does give more weight
to the Japanese and American approvals than the
remainder. This is a reflection of economic realities,
where the payoffs are greatest if, and only if, the
biggest markets are included. Unless all 12 members
are included at the outset, then members that
collectively contribute at least 85% of the market size
need to be ready to implement the TPP. Any country
that is not involved at the date of entry into force (other
than the U.S. and Japan) can enter the agreement at
any later time.


The TPP currently contains 12 members. Assuming it
survives the ratification process and enters into force,
it also has an accession clause to allow additional
members to join in the future. While the clause
privileges members of APEC, the TPP is not limited to
only APEC membership.


VIEWING THE TRANS-PACIFIC PARTNERSHIP AGREEMENT THROUGH A LENS OF AGRICUTURE28




Relat ionship with
Mult i lateral Trading


System


VI




The TPP, like other trade agreements, builds on the
multilateral trade system. Many of the provisions in
the TPP can be closely tracked to existing WTO rules.
Others show just a hint of the origins, while some are
completely new. Partly, the diversity comes from the
age of WTO rules—the last major update of the MTS
rulebook took place in the early 1990s. Since then,
most TPP members have experimented with new
regulations, market access approaches, and whole
new concepts in different configurations of bilateral
and regional trade agreements.


Some of these provisions may make their way back
into the WTO rulebook in whole or in part. For example,
TPP rules and some of the commitments on services
are replicated in the ongoing Trade in Services (TiSA)
negotiations. If TiSA is concluded and becomes part
of the WTO as a plurilateral agreement, these rules will
be directly incorporated.


Other TPP elements may be likely candidates for
similar plurilateral discussions in the future, including
a bundle of issues around e-commerce. To be truly
effective at the MTS level, the TPP text in the current
e-commerce chapter alone is likely to be insufficient.
In part, this was because it was negotiated some time
ago (in terms of a rapidly evolving industry). As noted
above, unless payments are included, e-commerce is
unlikely to flourish. Other rule changes are likely to
be needed to help smaller firms compete effectively in
e-commerce, including an additional emphasis at the
WTO level on improving the movement of small size,
small value shipments and freeing up cross-border
trade in services. But the TPP suggests a promising
avenue, perhaps, for launching discussions around a
critically important area for the future.


The TPP should be taken much more seriously
than past FTAs, for the potential threats it poses to
the existing global trading regime. Existing bilateral
arrangements do not reset the rules of the game.
Even most past regional deals (with the exceptions
of the European Union, of course, and the North
American Free Trade Agreement) did not really offer
companies significant enough benefits to dramatically
reshape trade arrangements.


The TPP, by contrast, could really mark the start
of something different. The deep and broad
commitments in the TPP create a package of
commitments compelling enough for companies
large and small to reconsider many of their current
and future sourcing, trading and investing decisions.


The likelihood—and not merely the potential—of trade
and investment diversion as a result of the TPP is
real. Such diversion is not just for large, complicated
multinational companies, but even smaller firms.


Return to the example of ketchup production. The
diagrams below show dramatically how a simple
supply chain currently based in ASEAN is likely to be
transformed by the TPP. Sourcing could change, with
sugar currently supplied from Philippines changing to
fructose from Mexico. The entire production process
may shift to Singapore from Thailand. This change
is true even through Singapore is already a duty-free
port and already has existing preferential tariff rates
for a wide range of countries given an extensive set of
FTA partners.


If Singapore can suddenly capture the value chain
for ketchup production as a result of the TPP, it is
clear to see how many non-TPP countries are at risk.
This simple example highlights only the tariff benefits
of the agreement. It does not really emphasize the
additional gains from improved access to services,
new investment openings and protections, access to
government procurement markets (if, for example, the
defense department wanted to order up packets of
ketchup), intellectual property protections of the trade
secrets guarding our hypothetical ketchup formulas
and so forth.


The TPP is meant to expand in the future. There are
currently a number of countries lining up to join and
the deal could easily include another 8 members by
2020. The trade and investment diversion effects of
an expanded agreement are all the greater. This is
particularly true, of course, for many of the neighboring
countries in the Asia-Pacific and in Latin America.


As is often the case, the smallest and poorest
countries are at the greatest risk. Countries like Laos
and Cambodia will find it difficult or even impossible
to meet the high standards and ambitions in the
TPP. Membership in the agreement requires full
commitment to every element of the agreement.
There is no special and differential treatment clause or,
really, any concessions to developmental status at all
beyond a few extra years for implementation for some
provisions and some capacity building.


What can these countries do? There are three things
that should be encouraged. First, non-TPP members
must recognize the dangers posed by these types of
deep integration frameworks. Trade and investment


VIEWING THE TRANS-PACIFIC PARTNERSHIP AGREEMENT THROUGH A LENS OF AGRICUTURE30




diversion is likely, particularly if governments continue
to pursue “own goal” policies that make trade more
difficult, costly, and cumbersome than it needs to
be. In a competitive world, firms will move to where
benefits are best. They will largely avoid countries
that, for example, hold up shipments at the borders for
days or even weeks or require complicated paperwork
or side payments or charge excessive tariffs and so
forth.


Second, countries should pursue trade arrangements
that are available and use them as levers to make
domestic reforms wherever possible. For example,
Laos and Cambodia should seize on both the
ASEAN integration process and the ongoing Regional
Comprehensive Economic Partnership (RCEP) talks.
The primary purpose ought to be to access markets,
but also to reduce domestic impediments. Aid money
should be directed to encouraging such outcomes as
much as possible.


But the best, third, outcome—for smaller, poorer
states but also for the broader system—is to focus


on reinvigorating the global trade system. Even
companies that benefit from the TPP can (or will) see
the benefits and constraints of an agreement that
includes just 12 or 20 members. Far, far better would
be a similarly ambitious effort from the WTO to expand
access across more countries. Global value chains
need to be global. It is inefficient to shift supply chains
for ketchup to match the best tariff level reductions
or to have to consider the final destination markets
for every product off an assembly line to match the
appropriate rule of origin or decide if a particular
service can be delivered cross-border using which
mode of supply.


The WTO needs to get beyond stale discussions of
formula cuts for agriculture and start studying the
TPP. Negotiators in Geneva should look carefully at
what the agreement does in agriculture and think hard
about what such a deal does for trade and supply
chains. These talks are not easy, of course, but the
business communities have moved on and are waiting
for officials to catch up.


VI. RELATIONSHIP WITH MULTILATERAL TRADING SYSTEM 31




Pre-TPP global value Ccain


VIEWING THE TRANS-PACIFIC PARTNERSHIP AGREEMENT THROUGH A LENS OF AGRICUTURE32




The shift of ketchup global value chain post-TPP


VI. RELATIONSHIP WITH MULTILATERAL TRADING SYSTEM 33




Graeter market access outside the region for Singapore-made ketchup


VIEWING THE TRANS-PACIFIC PARTNERSHIP AGREEMENT THROUGH A LENS OF AGRICUTURE34




Conclusions


VII




The Trans-Pacific Partnership is a transformative
trade agreement. The depth and breadth of the
commitments between 12 members has the power to
reshape supply chains and respond to many business
concerns in ways that previous free trade agreements
did not.


TPP member states have been busily signing FTAs
with various parties. While many of these deals provide
benefits for companies, many have been complicated
to use. Bilateral agreements, for example, rarely
match up with the production networks of companies
who often struggle to meet qualifying criteria with just
two member country inputs. Most existing FTAs carve
out significant portions of goods trade, including highly
sensitive sectors where trade usually occurs. Much
of the commitments made in other areas like services
and investment has tended to be light. Agreements,
for example, often restate services pledges made at
the WTO.


In short, while the growth in FTAs has been explosive,
especially in Asia, the utilization of these agreements
has remained relatively limited.40 The “penalty” for
non-use has also been limited. Most firms have
always been able to rely on WTO MFN tariff rates,
for example. For many products, MFN rates at the
border meet or are not far from preferential rates
available under existing FTAs in any case, particularly
for agricultural products since many FTAs carve out
agricultural trade in whole or in part from FTA benefits.


The TPP, as this paper makes clear, upsets this
calculus quite dramatically. Tariff rates even for


sensitive agricultural products will fall. In most cases,
tariffs drop to zero as soon as entry into force. The
ability of firms to add up or cumulate the contents
across the current 12 members of the TPP using
relatively easy and consistent rules of origin makes
it much easier for producers of processed goods to
create products for TPP member markets.


These tariff reductions are accompanied by a host
of additional benefits for firms, including new trade
facilitation benefits, dramatic services and investment
liberalization, and a host of new areas including
additional intellectual property rights protections and
enforcement, openings in government procurement
markets and even new access to e-commerce
markets across TPP members.


The result of the TPP—unlike most existing FTAs—is
that firms are likely to reconsider existing trade and
investment decisions. Companies may decide to
change location decisions. They may reduce their
footprint in some countries and shift production to
TPP members for products that may be bought, sold
or serviced in TPP markets now or in the future.


Not everything, of course, will move. Many agricultural
products are never traded across borders. For some
products, even the TPP does not solve all problems.
Domestic regulations that require, for instance, that
fresh milk be sold within 7 days of milking a cow does
not make it easier for some TPP members to reach
consumers fast enough no matter how low the tariff
cut.


VIEWING THE TRANS-PACIFIC PARTNERSHIP AGREEMENT THROUGH A LENS OF AGRICUTURE36




ENDNOTES


1 Of course, the European Union and associated market, regulatory and legal provisions go far beyond what
the TPP will provide. If the Trans-Atlantic Trade and Investment Treaty (TTIP) between the United States and
the EU ever gets concluded and implemented, it could leapfrog the TPP as well.


2 http://www.shopfloor.org/2016/05/itc-report-barely-scratches-the-surface-of-tpps-impact/


3 http://www.politico.com/tipsheets/morning-trade/2016/05/itc-shakes-out-tpp-winners-and-losers-next-
ttip-round-likely-in-july-a-new-day-for-brazil-trade-214390


4 http://www.huffingtonpost.com/jared-bernstein/itc-tpp-economic-impact-report_b_10054968.html


5 Because each TPP member used slightly different approaches to scheduling tariffs, it is always important
to examine the general notes that accompany each specific country commitments as well, ie, Australia has
general notes that are meant to explain Australia’s specific schedule. The TPP texts and schedules as a
whole will not change in the future, however, once the date of entry into force for the agreement is known,
the schedules shown in Annex 2D will be changed so that, for example, “Year 2” will read January 1, 2019,
or whatever specific date reflects the year 2 commitment timelines once entry into force (EIF) is known.


6 Shown in fn 15, PIIE Briefing 16-1, p. 50. Mexican sugar producers are much more numerous at nearly
166,000 sugar cane farms on significantly smaller plots.


7 Bamboo shoots, which retain a 5% tariff for four years before becoming tariff free.


8 “Opening Markets for Agricultural and Agri-Food Products,” Government of Canada, October 5, 2015, http://
www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/tpp-ptp/benefits-avantages/
sectors-secteurs/01-AgriSector.aspx?lang=eng (accessed May 24, 2016).


9 This statement may need to be viewed with some degree of caution. Because Mexico has existing FTAs with
nearly all TPP members, few likely pay 200+% tariffs on pork products as most already receive preferential
tariff rates in existing FTAs. However, the primary point is that all TPP members can be guaranteed the same
rates under the TPP agreement and all are assured that the rates will be locked at 0 within five years. (It is
possible that the existing FTAs do not drop to 0 or do not drop to 0 in the same time frame.)


10 New Zealand is the official repository country. The texts are posted in English, French and Spanish at:
https://mfat.govt.nz/en/about-us/who-we-are/treaty-making-process/trans-pacific-partnership-tpp/text-of-
the-trans-pacific-partnership/


11 But not all. The longest tariff reductions can be found in autos, where the United States will take 25 years to
remove a 2.5% tariff on passenger cars from Japan and 30 years to remove a 25% tariff on pickup trucks.


12 TPP negotiations officially commenced in March 2010 and concluded in October 2015. The agreement
was released in November 2015 and signed in February 2016. The original TPP negotiating parties were
Australia, Brunei, Chile, New Zealand, Peru, Singapore, United States and Vietnam. Malaysia joined later in
2010. Canada and Mexico entered in 2012. Japan entered in 2013.


13 All existing FTAs continue to exist, of course. In most places, companies are free to choose the agreement
that provides the best benefits. By default, the TPP is likely to give better terms (particularly deeper tariff cuts
or better access to services or improved investment protections and so forth). Therefore, firms will effectively
“vote with their feet” and migrate to using the TPP over other, less useful FTAs over time. Note, however, that


37ENDNOTES




many FTAs also contain “ratchet” clauses. These clauses grant FTA partners the same benefits and means
that many TPP provisions could be spread to a much wider set of beneficiaries than originally intended
and that many existing FTAs with different participants may continue to be used by companies since the
provisions and benefits could be identical. Such clauses will also keep many lawyers gainfully employed for
a long time to come in sorting out what is likely to be a very big set of issues.


14 The process rules are about where, in geographic space, a product was created and are mostly used for
chemical tariff lines. See Margaret Liang, “Rules of Origin in the TPP,” AWRN Conference, Hong Hong, May
16, 2016.


15 Cumulation applies to all products except, as noted below, a very small number of dairy items for some
member states where something called a “tariff differential” kicks in.


16 Although there is also a small set of products (again, mostly dairy) where de-minimus is not allowed.


17 TPP was negotiated at the level of domestic headings. The WTO negotiates and binds tariffs at the 6 digit
level (like the World Customs Organization). By contrast, the TPP and many other FTAs are handled 8, 10 or
even 12 digits resulting in a much more finely detailed set of product specifications. Note however that tariff
bindings at the 6 digit level also cover more items.


18 Of course, no official ever went out and claimed to be creating a “low quality, low ambition” agreement. But
most do not deliberately set the stage quite like TPP officials from the outset. The extent to which claims of
high ambition were true was the subject of the book, The Trans-Pacific Partnership: A Quest for a Twenty-
first Century Trade Agreement, Lim, Elms and Low (eds), (Cambridge, 2012).


19 Tariffs remain not only for agricultural items. For Mexico, used heavy vehicle tariffs will stay at 47.5%. Some
other automotive tariff lines applied to Japan also remain as high as 7.5%.


20 Hopefully without triggering the safeguard mechanisms at the same time that will shut off the market.


21 Specifically, Japan, Mexico and the United States have annexes listed in the schedule of commitments as
part of 2-D.


22 Plus footwear, glassware and porcelain, tires, autos and auto parts.


23 Mexico scheduled large vehicles and trucks


24 http://www.thecattlesite.com/articles/2578/fapri-2010-agricultural-outlook-world-meat/


25 From Appendix B-1. These schedules do not apply to cheek or head meat, which have higher tariffs. After
year 16 the ASM tariff will reduce by 1 percentage point. If Japan does apply the safeguarding measure in
a given year, the tariff will not reduce the following year. This means it would take a minimum of 25 years for
the ASM quota to reach the level of other tariffs. However ASM will lapse entirely if it is not invoked for four
consecutive years beyond year 15.


26 Elliott, K. A., Freund, C., Gelpern, A., Hendrix, C. S., Hufbauer, G. C., Kotschwar, B., ... & Petri, P. A. Assessing
the Trans-Pacific Partnership, Volume 1: Market Access and Sectoral Issues  (No. PIIEB16-1). Peterson
Institute for International Economics.


27 The US has a lot of complex tariff schedules on agricultural goods and tomatoes are no exception. Currently
the tariff is 3.9¢ / kg during autumn (harvest time) and 2.8¢ for the rest of the year. For all countries except
Japan this falls to 0 on day one of the TPP. We calculated a percentage figure for the USA based on tariff as


VIEWING THE TRANS-PACIFIC PARTNERSHIP AGREEMENT THROUGH A LENS OF AGRICUTURE38




a proportion of average retail prices in the USA. As this tariff only affects one country in subsequent years,
this figure was divided by 11 to show average tariff. NB this does weight tariffs by export volume. Data from:
http://www.ers.usda.gov/data-products/fruit-and-vegetable-prices.aspx


28 http://faostat3.fao.org/faostat-gateway/go/to/download/Q/QC/E/


29 We conservatively assume that logistic costs stay constant, though streamlined regulations, greater
competition as service sectors open up and economies of scale suggest the costs would fall.


30 All of which would have been much easier had the TPP created a Secretariat.


31 It remains to be seen how TPP members interpret such provisions in practice, of course, as the definition of
“science” is often contested.


32 See, for example, Services in Manufacturing Supply Chains, Policy Support Unit, APEC Secretariat,
APEC#215-SE-01.15, http://publications.apec.org/publication-detail.php?pub_id=1677


33 USITC Report


34 USITC Report


35 It is not entirely clear what this provision will mean—simply that financial institutions may be required to host
data locally? Or that financial data cannot move across borders? Or that financial institutions are not bound
by source code restrictions and other provisions of the e-commerce chapter? Recall that financial services,
more broadly, are opened under the TPP and are covered under TPP Chapter 11.


36 To be fair, of course, such provisions also apply to other products—internal taxes can be applied to goods
as long as these are applied consistently without discrimination.


37 Malaysia and Vietnam have two additional years before this chapter can be enforced under TPP DSM.


38 See Chapter 30, Final Provisions, Article 30.5: Entry into Force.


39 There is, it should be noted, one final point for American approval. USTR must provide a report to Congress
that “certifies” that all other members have completed their own domestic procedures. But this report is not
voted on by Congress and the gap between approval by Congress and the delivery of the report need not
be too lengthy. By the time other countries have concluded their own approvals, USTR could have finished
the reporting.


40 See, for example, Inkyo CHEONG, Korea’s Policy Package for Enhancing its FTA Utilization and Implications
for Korea’s Policy, ERIA-DP-2014-11; W. Leelawath. 2012. Utilization of Tariff Preferential under AFTA: A
Case of Thailand. Working Paper from the International Institute for Trade and Development. Bangkok:
International Institute for Trade and Development; M. Kawai and G. Wignaraja. 2010. Free Trade Agreements
in East Asia: A Way toward Trade Liberalization? ADB Briefs.1. Manila: ADB; R. Pomfret, U. Kaufmann, and
C. Findlay. 2010. Use of FTAs in Australia. RIETI Discussion Paper Series. 10-E-042. Research Institute of
Economy, Trade, and Economy. Tokyo: RIETI; and World Trade Organization (WTO). 2011. World Trade
Report 2011. Geneva: WTO.


39ENDNOTES






Appendix




TPP Literature Review Summary


Title Author Source Category


A Trade and Welfare Analysis of
Tariff Changes Within the TPP


Cheong Juyoung, Takayama Shino B.E. Journal of Economic Analysis
& Policy. Jan2016, Vol. 16 Issue 1,
p477-511. 35p. 16 Charts


Tariffs, Public Welfare


Adjustment and Income Distribu-
tion Impacts of the Trans-Pacific
Partnership


Lawrence, R. Z., & Moran, T Peterson Institute for International
Economics Working Paper, March
2016


An Analysis of Tariff Reductions
in the Trans-Pacific Partnership
(TPP): Implications for the Indian
Economy


Narayanan, Badri and Sachin
Kumar Sharma


Margin: The Journal of Applied
Economic Research 10.1 (2016):
1-34.


India


Assessing the Trans-Pacific Part-
nership, Volume 1: Market Access
and Sectoral Issues


Elliott, Kimberly Ann, et al. Peterson Institute for International
Economics Working Paper, Febru-
ary 2016


Market access and sectoral issues


Assessing the Trans-Pacific
Partnership, Volume 2: Innovations
in Trading Rules.


Schott, Jeffrey J., and Cathleen
Cimino-Isaacs


Peterson Institute for International
Economics,


(March 2016)


Extensive IP Provisions in the
Trans-Pacific Partnership


Horton, R. L., Otteson, J., Carmack,
T., Reade, C. E., & Kientzle, M. E.


Intellectual Property & Technology
Law Journal. Feb 2016, Vol. 28
Issue 2, p16-19. 4p.


IP


Impact of Trans-Pacific Partnership
Agreement on Cost of Medicine


Lee, K. Seng, Tahir M. Khan and
Chiau Ming Long


Research in Social and Administra-
tive Pharmacy. Jan 2016


Medicine


Market Access in Goods in
the Trans-Pacific Partnership
Agreement


Elms, Deborah K. Trans-Pacific Partnership Agree-
ment: A Critical Vision, Publisher:
National Autonomous University,
Mexico City, January 2014


Market Access


National Interest Analysis of
Malaysia’s Participation in the
Trans-Pacific Partnership


Institute of Strategic and Interna-
tional Studies (ISIS) Malaysia


November 2015 Malaysia


New Zealand and the TPP Gault, Ian, and Andy Glenie. Global Trade and Customs Journal
11.4 (2016): 175-177.


New Zealand


Origins and Evolution of the
Trans-Pacific Partnership (TPP)
Trade Agreement


Elms, Deborah K. In book: Regionalism in the Asia
Pacific, Publisher: ISEAS, Editors:
Sanchita Das and Kawai, May
2015


VIEWING THE TRANS-PACIFIC PARTNERSHIP AGREEMENT THROUGH A LENS OF AGRICUTURE42




Title Author Source Category


Possible Trans-Pacific Partnership
Implications for Chilean Interna-
tional Trade.


Vergara, R., Vergara, M., &
Laporta, P.


Global Trade and Customs Journal,
11(4), 188-191, 2016.


Chile


Potential impact of Trans-Pa-
cific Partnership on labor and
employment


Sutton, Trent New York Law Journal. Feb 5,
2016, Vol. 255 Issue 24, p4, 2 p


Labor and Employment


Potential Macroeconomic
Implications of the Trans-Pacific
Partnership


World Bank Group World Bank Global Economic
Prospect, January 2016


Protecting Regulatory Autonomy
through Greater Precision in In-
vestment Treaties: The TPP, CETA,
and TTIP


Henckels, Caroline Journal of International Economic
Law 19.1 (2016): 27-50.


Investment


Public health and the Trans-Pacific
Partnership Agreement


Mitchell, Andrew D. Voon, Tania


Whittle, Devon


Asian Journal of International Law.
July 2015, Vol. 5 Issue 2, p279


Public Health


Regional cooperation and free
trade agreements in Asia


Hu, Jiaxing; Vanhullebusch,
Matthias


Publisher: Brill - Nijhoff; Lam
edition, September 2014


Study on Potential Economic
Impact of TPPA on the Malaysian
Economy and Selected Key Eco-
nomic Sectors


Pricewaterhouse Coopers December 2015 Malaysia


Tax implications of the Trans-Pacif-
ic Partnership


Herzfeld, Mindy Tax Notes International. April 4,
2016, Vol. 82 Issue 1, p7


Government regulation, Taxation


The Economic Effects of the
Trans-Pacific Partnership: New
Estimates


Petri, P. A., & Plummer, M. G.
(2016)


Peterson Institute for International
Economics Working Paper, (16-2)


The TPP Investment Chapter and
Investor-State Arbitration in Asia
and Oceania: Assessing Prospects
for Ratification


Nottage, Luke R. Sydney Law School Research
Paper 16/28 (2016).


Investment


The Trans Pacific partnership
and its implications for Australian
Businesses


O’ Neill, Rachel PLoS Medicine. 3/8/2016, Vol. 13
Issue 3, p1-7. 7p


Australia


43APPENDIX




Title Author Source Category


The Trans-Pacific Partnership (TPP)
as a Pathway to Asian Integration
The Goal: Free Trade Area of the
Asia Pacific (FTAAP)


Elms, Deborah K. Conference: 2014 Korea Dialogue
on Strengthening North Pacific
Cooperation, East-West Center and
KIEP, At Hawaii, July 2014


The Trans-Pacific Partnership
(TPP) Negotiations and Issues for
Congress


Congressional Research Service,
2015


USA


The Trans-Pacific Partnership
Agreement: Looking Ahead to the
Next Steps


Elms, Deborah K. ADBI Working Paper Number 447,
December 2013


The Trans-Pacific Partnership and
Malaysia


Chen, Kuok Yew, and Tracy Wong. Global Trade and Customs Journal
11.4 (2016): 185-187.


Malaysia


The Trans-Pacific Partnership
Negotiations: Some Outstanding
Issues for the Final Stretch


Elms, Deborah K. Asian Journal of WTO and
International Health Law and Policy
(AJWH), Volume 8, Issue 2, pp
379-599, September 2013


The Trans-Pacific Partnership,
China and India


Amitendu Palit Publisher: Routledge, 2014 China and India


The Trans-Pacific Partnership: Is It
Everything We Feared for Health?.


Labonté, R., Schram, A., & Ruckert,
A.


International Journal of Health Poli-
cy and Management. April 2016


Public Health


The Trans-Pacific Partnership
(TPP): Key Provisions and Issues
for Congress


Ian F., Brock R. Congressional Research Service,
May 2016


The Trans-Pacific Partnership:
Mexico’s Perspective and Expec-
tations


Ortiz, Turenna Ramirez. Global Trade and Customs Journal
11.4 (2016): 198-202.


Mexico


VIEWING THE TRANS-PACIFIC PARTNERSHIP AGREEMENT THROUGH A LENS OF AGRICUTURE44








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