On Oct 5, negotiations on the Trans-Pacific Partnership Agreement (TPPA) were finally concluded in Atlanta, United States.

This signalled the end of five years of negotiations among 12 countries - including Malaysia - and soon, the people will have their first look at the full contents of the controversial agreement.

Here, Malaysiakini has compiled a summary of what the TPPA is about, and some of the sore points it has raised.

What is the TPPA?

The TPPA (sometimes called TPP) is among the four free trade agreements Malaysia is working on with foreign counterparts.

Currently, Malaysia has signed 14 free trade agreements with a number of countries, including Australia, India and Japan.

Has Malaysia signed the TPPA?

Not yet. Parliament has to agree to it first, through a simple majority vote.

This is expected to take place before early January next year, and will be done through a special parliamentary session, if necessary.

After that, Malaysia has two years to ratify the TPPA into its domestic laws and procedures.

News reports on Oct 5 that the TPPA has been “agreed upon” in Atlanta is sometimes misunderstood to mean that it is already a done deal.

However, what was actually “agreed upon” are the concessions and exceptions that are to be made by each country if the agreement is signed.

Who else is in TPPA?

The 11 other TPPA parties are: Australia, Brunei, Canada, Chile, Japan, Mexico, New Zealand, Peru, Singapore, the US and Vietnam.

Of these, Malaysia currently does not have free trade agreements with Canada, the US, Mexico and Peru.

In terms of the combined GDP of all 12 countries involved, TPPA would constitute the largest free trade agreement in the world.

What’s in the TPPA?

The short answer is: We don’t know for sure.

According to the International Trade and Industry Minister Mustapa Mohamed on Wednesday, the full text of the agreement will only be available in about 30 days, along with two cost-and-benefit analyses prepared by PricewaterhouseCoopers and the Institute of Strategic and International Studies.

There is also a chapter-by-chapter summary currently available online from the Office of the US Trade Representative.

Nevertheless, some TPPA chapters have been leaked and campaigners have also been able to gather information from other unofficial sources.

Inferences can also be drawn based on similar free trade agreements such as the North Atlantic Free Trade Agreement (Nafta), and Central American Free Trade Agreement (Cafta).

However, these leaks and precedents do not necessarily reflect the final version of the TPPA.

Why are talks so secretive?

The secrecy surrounding TPPA is not unique, but is a common feature for any free trade negotiation.

From the trade negotiator’s perspective, it would be difficult - if not impossible - to reach any free trade agreement if the negotiations are done in full transparency.

This is because there would be winners and losers in the outcome of any free trade agreement and too much noise and pressure from various interest groups would stall negotiations.

Of course, it is unsettling for the stakeholders if they know nothing of a high-stakes negotiations taking place behind closed doors.

However, for those interested in knowing what goes on behind those doors, I highly recommend this podcast from the show, ‘ Planet Money ’.

What does TPPA do?

Like any free trade agreement, the TPPA makes it easier for companies in the countries involved to do business in other member countries.

Among others, this entails reduced or removed tariffs (making imported goods cheaper), easier Immigration and Customs procedures and the removal of policies that protect local businesses from foreign competition.

The TPPA also covers a broad range of topics across its 30 chapters, but this alone would have important ramifications.

On the one hand, consumers stand to gain from cheaper imported goods and services, due to the slashed tariffs and streamlined procedures.

Businesses may also find new markets and (hopefully eager) new customers abroad for their products and services.

Minister Mustapa had said Malaysia is looking to export textiles to the US, automotive components to Mexico, as well as greater market access for electrical, electronic, oil palm, and rubber products.

On the other hand, the lowered tariffs and streamlined procedures can also make some businesses uncompetitive and forced to close due to foreign competition.

New factories and businesses may open where the cost of raw materials and wages are lower - at the expense of jobs lost in other countries - because it will become cheaper to import these goods from where the new factories are.

Other areas covered by the TPPA include intellectual property rights, environmental protection and labour rights.

The final document would also include exceptions to TPPA’s rules, which are specific to each country.

According to Mustapa, for Malaysia, exceptions include the areas of pro-bumiputera affirmative action, government-linked companies, government procurement, and halal certification - to ensure that these areas are protected from any impact of the TPPA.

What else is there to worry about?

1. More expensive healthcare

Health advocacy groups such as Doctors Without Borders have argued that TPPA would make the prices of medicines more expensive by keeping cheaper generic drugs out of the market for longer periods of time.

This is due to a five-year data exclusivity period for a new class of drugs called ‘biologics’, which may lengthen the 20-year patent term already in place for pharmaceuticals.

To be clear, TPPA would not mean that prices of existing drugs would go up, but cheaper versions of it may take a longer time to become available, especially for new drugs.

Proponents of this provision counter-argue that it would give greater incentive towards researching new medicines.

2. Investor-state dispute settlement (ISDS)

Investor-state dispute settlement (ISDS) allows corporations to sue governments for compensation when a policy change affects their profits, in tribunals that are typically held away from the public limelight.

Various groups have claimed that this would impinge upon the right of sovereign nations to enact laws to protect the welfare of their citizens.

Arguably, the most controversial ISDS case is that of Philip Morris Asia, which sued Australia in 2011 after Australia imposed new laws that would require cigarettes to be sold in a plain packaging.

The case is still pending in Singapore, but has reportedly cost Australian taxpayers over A$50 million (RM152 million) in legal fees as of July this year.

However, Mustapa said a number of safeguards have been put in place, hence excluding policies related to public health and national security from ISDS.

Tobacco control is another area that has been explicitly singled out as being excluded from ISDS proceedings, which Mustapa said Malaysia had argued for, following Australia’s experience.

According to the summary provided by the Office of the US Trade Representative, ISDS proceedings arising from TPPA would also be conducted in open hearings, unless the parties involved agree otherwise.

Overall, there have been 609 ISDS disputes since 1987, according to the database of the UN Conference on Trade and Development.

Of these, 196 cases are still pending, while 105 cases have been settled before the arbitration panel reached a decision. There is no information on 42 of the cases.

For cases where a decision had been reached, 110 cases were decided in the investors’ favour, while 147 cases were decided in the states’ favour.

In another eight cases, the panel had found liability, but awarded no damages.

Malaysia is no stranger to ISDS proceedings either, having been sued in 1994 and 1999 by Belgian investor Philippe Gruslin, and in 2005 by a group of British investors.

The 1994 case was settled out of court before a decision was reached, while the 1999 and 2005 cases were ruled in Malaysia’s favour.

Malaysian companies have brought ISDS cases against Chile, Ghana and China as well, in 2001, 2003, and 2011 respectively.

The 2001 case was ruled in favour of MTD Equity Sdn Bhd, while the other two cases, involving Telekom Malaysia and Ekran Bhd, were settled.

A more in-depth look at ISDS and the issues it raises can be found in the BBC Radio feature titled ‘Company vs Country’, which is available online .

3. No remedies for workers, the environment

The International Trade Union Confederation claims that TPPA’s chapter on the environment does not take account of the need to mitigate climate change, and has no mechanism to enforce provisions already in place.

In addition, it claimed that few ideas to ensure labour rights are protected have been taken up in TPPA.

“While companies can directly launch ISDS proceedings to protect their profits, workers have to ask governments to intervene on their behalf. Labour enforcement of this type has only ever been used once, under Cafta, against Guatemala.

“That case has already taken seven years, and still there is no final decision or compliance by the government,” the trade union body said.

4. More restrictive copyright regime

The US-based advocacy group Electronic Frontier Foundation (EFF) has warned that US negotiators are pushing for “copyright measures far more restrictive than currently required by international treaties”.

Based on a leaked draft of TPPA’s intellectual property chapter, it said this would entail lengthier copyright protection terms, and more restrictions on fair use of copyrighted material.

The EFF also warned of the vague wording on the provisions related to trade secrets, which could lead to harsh punishments, even against those who access a computer system that is allegedly confidential.

It also calls for criminal sanctions for copyright infringement even in cases where there is no commercial motive (such as file sharing).

So is TPPA good or bad?

This question is impossible to answer definitively without access to the full text of the TPPA.

Even with the full text and the two cost-and-benefit analyses that the government has commissioned, the answer may not be clear-cut.

It would depend very much on who you are and which industry you are in, as each country, including Malaysia, has inevitably made some concessions to other countries in order to make gains in other areas.

In the end, the decision would have to depend on whether the benefits of TPPA outweigh its costs, as well as the opportunity cost of missing out on the deal.

Hopefully, once the secrecy surrounding TPPA has been unveiled, there would be a more robust debate on this matter, and TPPA’s tabling in Parliament would, hopefully, be more than a formality.