CPTPP: The gov’t is right in being cautious

By Jason Loh

With the signing of the Regional Comprehensive Economic Partnership (RCEP) on Nov 15, the stage is set for Malaysia to tap into the world’s largest free trade area (FTA) of some 2.1 billion population, including China, and accounting for approximately 30% of the world’s GDP.

Up next is the Comprehensive and Progressive Trans-Pacific Partnership (CPTPP) – spanning the Asia-Pacific Rim countries and home to 95 million consumers as well as contributing around 13.5% of the global GDP worth a total of USD10.6 tril.  

The CPTPP is a gargantuan FTA in terms of the scope of provisions running into thousands of pages. Previously, it was known as the Trans-Pacific Partnership (TPP) under the lead sponsorship of the US.

Essentially, the TPP is perceived to be biased in favour of the rights and interests of multinational corporations, i.e. the foreign investors (based in the US), over governments as sovereign entities. Both the TPP and CPTPP excludes China.

Even with the withdrawal of the US from the TPP, the CPTPP (the new version of the TPP) remains highly controversial. It is good that International Trade & Industry Senior Minister Datuk Seri Mohamed Azmin Ali has reiterated Malaysia’s stand that there is no timeline to ratify the CPTPP.

And that ratification must be dependent on the CPTPP being about “fair” trade, not just about “free” trade.

Such caution is to be welcomed because both the old TPP and new CPTPP are not a standard FTA.

Plus, the basic provisions of the TPP remains intact in the CPTPP.

Sovereignty vs corporate interests

Well-rehearsed arguments opposing the TPP include:

  • the prospects of imported products threatening to swamp the local market and thus, putting domestic producers and suppliers out of business and cause inflationary pressures; and
  • the fear that the bumiputera agenda and government procurement policy in relation to bumiputera contractors, as well as local small and medium-sized enterprises (SMEs) will be undermined in the name of “convergence”, “non-regression”, or “level playing field”.

Adding to that is the issue of state aid, i.e. Government or state intervention in the private sector targeted at nurturing and developing certain industries and sectors. Outside of Malaysia, South Korea with its chaebols and Japan with its zaibatsus are classic examples.

Under the CPTPP, state aid rules remain a major concern. As highlighted in a report by Khazanah Research Institute (KRI), Chapter 17 of the CPTPP specifically mandates “level playing field” between state-owned enterprises/SOEs (government-linked companies/GLCs) at the federal level and non-SOEs (read: foreign investors).

This would definitively impact the advantages enjoyed by our GLCs from the government (institutional, regulatory and financial).

In addition, the TPP was also opposed within Malaysia on grounds revolving around investor-state dispute settlement (ISDS) and intellectual property rights (IPR).

Firstly, on ISDS which basically means disputes between the Government and foreign investors are to be arbitrated by a non-judicial tribunal outside of the country’s sovereign jurisdiction.

Given developments post-TPP which spills over into the current CPTPP context, the worry is that in the event our Government chooses to cancel or renegotiate a contract with a foreign investor as was the case with the East Coast Rail Link (ECRL), just to give an example, will this expose us to ISDS proceedings? This on the basis that it constitutes a form of “indirect expropriation” and breach of investment obligation?

Secondly, on intellectual property rights (IPR), there is the well-acknowledged and well-founded argument that the TPP would result in the prices of drugs soaring, thus impacting access for the low income, due to patent enforcement and licensing requirement.

Focus on RCEP

Now under the CPTPP, the suspension of longer patent periods for innovative medicines and shorter periods for copyright protection may be welcomed as good news for Malaysia.  But will the inbuilt bias against data localisation work to the adverse disadvantage of new entrants into the CPTPP market, not least of all from Malaysia?

Data localisation means data collected be first approved by the host country before being transmitted across borders. Prohibiting data localisation benefits countries with strong patents applications and track record.

New data from one country can be used as part of the subsequent newer patent submissions in another country, with all the ramifications on us including also loss of tax revenue due to ease of transfer pricing, for example. Ironically, this undermines level playing field.

Thirdly, on e-commerce. Will our accession to the CPTPP render the digital service tax (DST) under the Service Tax Act (2018) susceptible to legal challenge as being incompatible with the provisions on electronic commerce as per Chapter 14 (of the CPTPP)?

The relevant provisions mention the prohibition of the “imposition of customs duties on electronic transmissions”. Will the DST be interpreted under the ISDS as constituting a violation of the government’s “investment obligation”, where the digital content providers that are the foreign service providers (FSPs) have operations in Malaysia, whether outsourced or through subsidiaries?

Furthermore, will the DST be deemed as a form of customs duties and, therefore, a form of protectionism? Bear in mind, legal action can still be initiated by an interested party based in Malaysia with legal standing on the basis of judicial review.

Thus, the relevant stakeholders who may be aggrieved need not go through the ISDS which of course has a much higher threshold, for example, requiring demonstration of loss of investments.

Last but not least, as we pause to consider ratification of the CPTPP, have we weighed the potential impact on intra-Asean cooperation and regionalisation? Will the CPTPP also simultaneously weaken Asean’s “centrality” as the “fulcrum” of the wider Asia-Pacific cooperation – which lies at the core of the RCEP?

The Government is right to be now focussing and committed towards accelerating and intensifying intra-Asean cooperation and coordination by prioritising the RCEP.

In doing so, we’re tapping into the vast potential of the Asean and wider RCEP market which is also more supply-chain resilient while at the same time, taking advantage and playing a part in shaping the reshoring and onshoring phenomenon of the supply chain reconfiguration.- Nov 18, 2020.

Jason Loh Seong Wei is Head of Social, Law and Human Rights at EMIR Research, an independent think tank focused on strategic policy recommendations based on rigorous research.

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