The Trans-Pacific Partnership ("TPP") is a trade
liberalization agreement signed by twelve countries on February 4,
2016. The signatories are: Australia, Brunei Darussalam, Canada,
Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the
United States and Vietnam. Included in the TPP is a chapter
relating to trade and the environment. This is not the first time
that environmental protection has been ascribed as a goal of a
bilateral or multilateral trade agreement. The TPP is different,
however, in that it incorporates an enforcement mechanism that
shows more teeth than seen in previous trade agreements.
Multilateral agreements have traditionally favored trade over
environmental concerns. The General Agreement on Tariffs and Trade
("GATT") did allow that countries may legitimately
undertake certain environmental measures as long as they did not
result in unjustifiable discrimination on trade between countries
or act as disguised restrictions on international trade. Article XX
of the GATT accepts that legitimate measures may be undertaken as
necessary to protect human, animal or plant life or health; or to
conserve exhaustible natural resources. Similar measures were
adopted in the General Agreement on Trade in Services
("GATS"). The WTO Agreement on the Application of
Sanitary and Phytosanitary Measures expanded the scope for
health-related environmental controls, but once again, subject to
the limiting rules set out in Article XX of the GATT.
The North American Free Trade Agreement
("NAFTA") appended an environmental side
agreement, the North American Agreement on Environmental
Cooperation ("NAAEC"), with the aim of ensuring
that lax enforcement of existing environmental laws would not be
used by parties to obtain trade advantages. The NAAEC did
allow for consultations, and if those failed, an arbitral panel to
recommend the means of resolution. If such resolution could not be
found, the Panel had the right to impose monetary penalties. To
date, no arbitral panel under the NAAEC has ever been
The TPP goes further than previous trade agreements in
establishing a range of positive environmental obligations on
member countries, and for the enforcement of these obligations
through consultation and arbitral panels.
In addition to the usual bromides about public awareness,
accountability and transparency, the TPP specifies obligations
combating illegal fishing, logging
and wild life trade; and
affirming commitments to multilateral
environment agreements that have been ratified by the member
The multilateral environment agreements ("MEAs") cited
include the Montreal Protocol on Substances that Deplete the Ozone
Layer, the International Convention for the Prevention of the
Pollution from Ships, and the Convention on International Trade in
Endangered Species of Wild Fauna and Flora. Certain environmental
commentators have expressed concerns that "climate
change" has not been expressly addressed in the TPP; though
arguably, the Paris Agreement would constitute an MEA, such that
member states would be bound by the obligations they made once the
Agreement is ratified.
In the event of a breach of responsibilities under the
Environment Chapter of the TPP, there is a process for
consultations between members. In the event that consultations are
not sufficient to resolve the issue, the matter can be sent to an
arbitral panel in accordance with rules relating to the broader TPP
dispute resolution mechanism. Panel resolutions made pursuant to
Article 28.18 of the TPP are enforceable by means of suspension of
benefits accruing to the responding Party under the TPP, or payment
of a monetary assessment.
Appendix A provides an overview of the major provisions of the
TPP Environment Chapter on an article-by-article basis.
While the TPP is a trade agreement, it represents an evolution
in the understanding of a need to balance trade liberalization with
recognition that there are issues of environmental concerns that
affect all of humanity, and that should not be sacrificed to the
goal of trade liberalization.
The foregoing provides only an overview and does not
constitute legal advice. Readers are cautioned against making any
decisions based on this material alone. Rather, specific legal
advice should be obtained.
While that agreement mandated export measures on Canadian softwood lumber exports destined for the United States, it also protected those lumber exports from the potential imposition of onerous import measures by the U.S.
On September 29, 2016, the Supreme Court of Canada issued its first tariff classification decision since Canada signed the International Convention on the Harmonized Commodity Description and Coding System in 1998.
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