As of March 2017, there had been a number of rounds for negotiating the Regional Comprehensive Economic Partnership, or RCEP Agreement. The latest round of negotiations were held between 27 February and 3 March 2017 in Kobe (Japan), and the next one is due between 3 and 8 May in Manila, Philippines. The negotiating partner states include Australia, China, India, Japan, New Zealand and South Korea and the Association of South East Asian Nations (ASEAN) consisting of Brunei Darussalam, Cambodia, Indonesia, Lao PDR, Malaysia, Myanmar, Philippines, Singapore, Thailand and Vietnam. Some of these countries are among the poorest, according to the MSF (Médecins Sans Frontières), the Nobel prize-winning international humanitarian and medical aid organization, and that together they constitute about half of the world’s population.
The RCEP is a proposed international trade pact that has always been secretly negotiated and whose drafts cannot be accessed by the common public in any manner. It is considered to be yet another addition among the set of already negotiated ACTA (Anti Counterfeiting Trade Agreement) and TPP/ TPPA (Transpacific Partnership Agreement) that had raised eyebrows owing to their secretiveness. It has raised concerns over the past few years for multiple reasons.
Firstly, the countries negotiating this trade deal belong to all categories of economies- both developing and developed, thereby putting the developing economies in a naturally disadvantageous state in any area of trade under negotiation. Secondly, and the most important cause of concern at the moment is that regarding intellectual property (IP) and investment.
It is also being said that certain countries like Japan and South Korea along with Australia and New Zealand recently, who have substantial interest in IP matters, are making it a point to include problematic features that impede access to medicines and treatment for common people. These relate to provisions proposed on data exclusivity, extension of patent terms, border measures that are being referred to as even exceeding the TPP.
The provisions on data exclusivity relates to those that help medicines maintain their market monopoly even when their patent terms have expired. This keeps away other companies from manufacturing generic drugs after their patent expiry thus preventing competition and maintaining a high price in an obvious monopoly situation. India and China, the world’s largest manufacturers of generic medicines are understandably opposing this plan. India, of course, is by far the global leader in the supply of safe, efficacious yet affordable medicines.
In addition, there are propositions on procedures to be applied at borders, or border measures. Such measures are meant to prevent unauthorised, IP infringing articles from entering or leaving the concerned country. Such measures, only few years back, had resulted in unwarranted seizures of shipments of Indian generic medicines at European borders.
There is also concern regarding the draft investment chapter, that would refer to IP as form of investment. Multinational corporations would be in a position to counter any domestic legislation or court decision in international arbitral forums that are private and secret as also favouring them, taking the route of the investor-state dispute settlement (ISDS) mechanism. This would likely occur whenever any law, provision or regulation is claimed by the MNCs to be affecting their ‘investment’ or ‘expectation of profits’ even if it involves strictly IP matters that conforms with the concerned globally accepted TRIPS agreement or its flexibilities. States like Canada and Ukraine recently had to face such foreign arbitration proceedings, and it thus puts the issue of access to medicines under a direct threat.
Therefore, health activists and organisations are of the opinion that any provision relating to the issues data exclusivity, foreign arbitration via ISDS mechanism and extreme border measures should be done away with. The manner in which the plurilateral RCEP agreement shapes up will only depend upon how its future drafts are prepared and negotiated by the respective countries with perceivably lopsided statuses of development.