TPPA Red Lines Demands:
1. Chapter on Trade in Goods
(a) There should not be elimination of tariff (zero tariff) covering all products.
There should be exceptions for sensitive products (whereby if there is tariff
elimination or steep tariff cuts, the local producers will be adversely affected).
Thus there should be exclusion of rice, other food products, tobacco crop,
alcohol, automobile sector and other sensitive industrial products where there
is local production.
(b) There should not be a ban or restriction on export taxes. Malaysia depends
on export taxes to enable local processing and manufacturing of several
commodities, including timber, fisheries, palm oil. Export taxes are also a
source of government revenue.
(c) There should not be a “yarn forward rule” in textiles and clothing (whereby
clothing producers in Malaysia have to source their yarn only from TPP
countries, thereby raising their cost of production).
2. Chapter on Services.
(a) The services chapter has to include liberalisation on a positive list basis not a
negative list basis as being demanded. In the negative list framework, all
sectors are assumed liberalised totally unless placed on a “negative list.” The
danger includes that all new sectors (not listed) are automatically opened to
companies from other TPP countries; and existing sectors that later the
country decides it wants to develop domestically, are also opened up already.
3. Investment Chapter.
(a) There should not be an investment chapter.
(b) In case there is to be an investment chapter, Malaysia should not agree to an
investor-to-state dispute settlement (ISDS) mechanism or provision as this
makes the government vulnerable to claims and lawsuits from foreign
investors of TPP countries.
(c) It should not restrict regulation of capital flow; and thus this chapter should
not require free movement of capital flows.
(c) There should not be a provision on “fair and equitable treatment.”
(d) There should not be an expropriation provision. At the least, there should
absolutely not be a provision on expropriation that includes “indirect
expropriation.”
(e) There should not be restrictions on performance requirements beyond those at the WTO.
(f) It should not bind state and local governments as a number of investment
disputes have already required national governments to pay monetary damages
for the violations of the investment protection provisions by state/local governments.
4. Government Procurement
(a) There should not be any government procurement chapter.
(b) If there is to be such a chapter, it must have provisions or effective exceptions
that allow for freedom for Malaysia to maintain policies allowing preferences
for locals, and for set asides for specific local communities, as according to
national objectives.
(c) If there is a chapter on GP, it should have high enough and adequate
threshold levels.
(d) It should also allow for offsets that are adequate.
5. Intellectual property
(a) There should be no intellectual property chapter.
(b) If there is an IP chapter, it should not go beyond the World Trade
Organization’s Agreement on Trade-Related Aspects of Intellectual Property
Rights (TRIPS).
(c) Most importantly, there should not be any extension of patent term.
(d) There should not be any provisions requiring data exclusivity, linkage between
patent status and medicine registration, patents on new uses or ban on pregrant
patent opposition, etc.
(e) There should be no copyright term extension.
(f) There should not be provisions requiring patents on plants, animals and
naturally occurring microorganisms. (This would go against our Patent Act
1983.)
(g) There should not be any provision requiring Malaysia to join the International
Convention for the Protection of New Varieties of Plants 1991 (UPOV
Convention). (Malaysia already has the Protection of New Plant Varieties Act
2004 which should not be amended by the TPPA).
(h) There should not be any provision requiring Malaysia to join the Budapest
Treaty on the International Recognition of the Deposit of Microorganisms for
the Purposes of Patent Procedure (1977), as amended in 1980.
6. Competition and State Owned Enterprises
(a) There should be no competition chapter
(b) If there is a competition chapter, it should not be enforceable via state-state
dispute settlement.
(c) There should not be any provisions or section on state owned enterprises, as
these would restrict their operations or viability.
7. Financial Services Chapter
(a) This chapter should not require Malaysia to liberalise its financial services or
bind its level of financial openness.
(b) It should not in any way reduce the ability or policy space of Malaysia to
regulate the financial sector, especially for the purpose of financial stability.
(c) Malaysia should not be prevented from having maximum policy space to
introduce or strengthen capital controls over the inflow and outflow of funds.
(d) The chapter should not require Malaysia to open up to the establishment or
spread of new financial instruments, especially introduced by foreign
institutions, since the risks of this are little known.
8. Telecommunications
(a) There should be no telecommunications chapter.
(b) Any telecommunications chapter should not have additional obligations aimed
at ‘major suppliers’ such as Telekom Malaysia (otherwise Telekom Malaysia’s
profitability and ability to achieve social objectives may be severely harmed)
9. Food Safety and Labelling
(a) There should not be any provisions (for example in a chapter on TBT or SPS)
that restrict the ability of Malaysia to regulate in favour of food safety; in
particular the TPP should not require changes to our existing laws (i.e.
Biosafety Act 2007 and Food (Amendment) Regulations 2010) that require the
identification and labelling of genetically modified organisms (GMOs) and
products of such organisms, including GM food.
10. Public Health
(a) The TPPA must not contain provisions that reduce the ability of patients
and government to obtain medicines at affordable prices.
(b) It should not have any provisions that discourage or prevent the viability
and growth of production and use of generic medicines.
(c) Tobacco control measures (such as regulations on cigarette packaging,
and on advertising of tobacco products) should be explicitly excluded from
the TPP.
(d) The TPP must not restrict the ability of government to require quantitative
ingredient declarations or health warning labels on alcohol in as large and
prominent manner as desired, for consumer/health reasons.
11. Halal Products
(a) The TPP should not reduce the ability of government to regulate halal
products. Therefore there should be a carve out (exception) from the TPP
for regulations on halal products.
12. Exceptions
(a) The exceptions chapter should have effective exceptions needed (eg for
financial crises, health, environment, consumer protection, halal etc) that apply to all chapters.
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