Our
worst fears confirmed
The
disclosure of the finalised texts of the Trans-Pacific Partnership
Agreement (TPPA) has confirmed our worst fears about the purported
21st Century Agreement.
Despite
what governments and cheerleaders claim, our concerns have not been
overblown, and only go to show what happens when we allow a select
few – their every move monitored and driven by multinational commercial
interests – to craft out a deal behind closed doors.
Given
that we will be legally-bound to follow the TPPA – or face trade or
other sanctions should we be found in violation – the prospects are
dire.
The
Intellectual Property chapter will jeopardise access to affordable
medicines:
- It
enables drug companies to press for patent term extensions beyond
the standard 20 years, to compensate for any “unreasonable” time
a patent office or drug regulatory authority takes to approve a
patent application or grant marketing approval, and for delays by
health authority in checking the medicine is safe, effective and
good quality. Patent term extensions will significantly delay the
entry of cheap generic medicines into the market.
- Generic
companies will be prevented for 5 years from registering an equivalent
generic version of a patented drug for market approval based on
originator company data, thereby curbing the supply of cheaper drugs.
While Malaysia already has this data exclusivity provisions, these
have various safeguards, while the TPPA locks this in.
- Exclusivity
extends to the new generation of ‘biologics’ medicines (medicines
derived from proteins isolated from plants, animals and micro-organisms)
that have been developed to treat human diseases and conditions,
such as vaccines, cancer medicines and therapies such as insulin.
Under the TPPA, Malaysia must provide 5 years biologics exclusivity.
The Malaysian law currently does NOT have exclusivity for biologics
and therefore will have to be amended to incorporate this. The number
of years of biologic exclusivity have led to such high prices that
even in the US, the Obama administration has repeatedly sought to
reduce the number of years of biologics exclusivity in that country.
- ‘Evergreening’
of already existing monopolies will happen through market exclusivity
if a ‘new’ medicine is an old drug that has been found to be useable
for a condition other than that which it was originally developed
to treat, or for old medicine that has been found to be useable
for a different population of patients. A pharmaceutical company
can also seek exclusivity for new combinations of an old drug and
a new chemical entity.
The
Investment Chapter overrides national sovereignty, allowing foreign
investors to sue the government directly and preventing government
from protecting citizens’ interests
- It
provides for overly-wide definition of “investment” that extends
the coverage of the foreign investor rights, exposing the government
to challenges and multi-million dollar compensation over their actions
and policies. The definition of “investor” is also overly-wide,
allowing corporations from non-TPPA countries – if they have substantial
business activities in a TPPA country – to sue under the chapter’s
investor-state dispute settlement (ISDS) system.
- Rights
will be granted to foreign investors that are not granted to domestic
firms, such as the ability to challenge and demand compensation
in an international court, which is a system that is lopsided in
favour of private commercial interests.
- There
are some provisions meant to improve on certain procedural aspects
of the ISDS regime, but there remains no solution to the problem
of the lack of an appeals mechanism, or the lack of a vigorous code
of conduct for the ISDS judges that is comparable to most domestic
judicial systems.
- Although
Malaysia has signed investment agreements containing ISDS provisions
as far back as 1959, the situation today is vastly different. Multinational
corporations today wield far greater power, some of which have individual
budgets exceeding that of entire countries. The scope and depth
of investment provisions today provide for the enjoyment of rights,
but no obligations, by multinational companies. Moreover, Malaysia
does not have a free trade agreement with the US, whose investors
are among the most litigious in the world and whose investors have
a very high chance of a broad interpretation of their procedural
rights when they sue.
We
have listed above just a few aspects of the TPPA as finalised by the
Malaysian government and its 11 other ‘partners-in-crime’. Over the
next few days, we will analyse and state our position on other aspects
of the TPPA.
These
few aspects are however enough to confirm our worst fears, and we
call on the government, for the sake of Malaysia and her future generations,
not to sign the agreement.
Contacts:
Mohd
Nizam Mahshar – Chairman of BANTAH
Azlan
Awang – Deputy Chairman of BANTAH
